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[ { "docid": "14226854", "title": "", "text": "puts in jeopardy the life of any person by the use of a dangerous weapon or device, the penalty for such crime shall be a fine of not more than $10,000 or imprisonment for a term or not more than 25 years or both. Here, the defendants were charged in Count I of the information with a violation of §§ 2113(a) and 2113(d). The jury convicted them on that charge, and, in so doing, necessarily found that the defendants did place a life in jeopardy by use of a dangerous weapon. In fact, the jury, in response to a special interrogatory, specifically found that a real gun had been used by the defendants in the robbery of the bank. The sentence of 25 years imprisonment imposed on each of the defendants on Count I of the information is, therefore, clearly proper and lawful under the express provisions of § 2113(d). The crimes charged by the two Counts of the information are separate and distinct offenses. Callanan v. United States, 364 U.S. 587, 81 S.Ct. 321, 5 L.Ed.2d 312; Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489. The Court was, therefore, empowered to impose separate sentences under such Counts. However, the 5 year sentence imposed under Count II was adjudged to run concurrently with the 25 year sentence imposed under Count I, so no possible prejudice could result from the sentence on Count II even if it could be concluded that such sentence was illegal Affirmed. . “No hard or fast rule can be laid down by which the admissibility of a confession may be determined with finality in every case. Every confession must be viewed in the light of all the surrounding facts and circumstances. It should be upheld only when it can be said from such an examination that it was given freely and voluntarily, and without threats, compulsion or use of force. * * * ”" } ]

[ { "docid": "931922", "title": "", "text": "46, 55 (8th Cir. 1960), cert. denied, 365 U.S. 812, 81 S.Ct. 693, 5 L.Ed. 2d 692 (1961). Affirmed. . Nardoni was indicted on three counts: (1) for violating 21 U.S.C. § 846 by conspiring to violate 21 U.S.C. § 841(a) (1); (2) for violating 21 U.S.C. § 841(a)(1); and (3) for violating 21 U.S.C. § 843(b) by using the telephone to facilitate the distribution of heroin. He pled guilty to Count III, and the other two counts were dismissed. . Each of the defendants was given consecutive five-year sentences on each count. Because of this, it is necessary for us to consider the issues raised with respect to each of the counts. The defendants contend that the conspiracy count should have merged into the substantive count, and that there should have been a conviction on only one count. However, ordinarily even when a defendant is charged with a substantive crime and a conspiracy to commit the same crime, the conspiracy and substantive counts are separate offenses and the defendant may be convicted of both. Callanan v. United States, 364 U.S. 587, 81 ton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); United States v. Long, 449 F.2d 288 (8th Cir. 1971), cert. denied, 405 U.S. 974, 92 S.Ct. 1206, 31 L.Ed.2d 247 (1972). The defendants have suggested no reason why we should depart from this rule in the present case, nor have they questioned the pro priety of the sentences imposed. See, United States v. Johnson, 334 F.Supp. 982 (W.D.Mo.1971); ABA Standards, Sentencing Alternatives and Procedures § 3.4 (Approved Draft, 1968) ; 2 C. Wright, Federal Practice and Procedure: Criminal § 527, at 419-420 (1969)." }, { "docid": "12723016", "title": "", "text": "the ground that a newly appointed counsel for Pegram was not given adequate time to properly prepare the defense. Tinkle and Pegram v. United States, 8 Cir., 254 F.2d 23. After remand, defendant while represented by counsel voluntarily entered a plea of guilty to Count II and Count IV of the indictment. The remaining counts were dismissed. Defendant was sentenced on May 13, 1958, to serve ten years on Count II and five years on Count IV, the sentences to be served consecutively. Defendant in his present motion states that he has now served the ten year sentence imposed on Count II and that he is entitled to have the sentence entered on Count IV vacated for the following reasons: 1. Count II and Count IV charge offenses arising under distinct statutes and are improperly joined in the second indictment. 2. The imposition of consecutive sentences on Counts II and IV constitutes double jeopardy. The trial court issued a show cause order to which the Government filed a response. The trial court by order dated January 25, 1966, found defendant’s motion to be without merit and dismissed the same, stating: “It is well established that when an indictment charges both a conspiracy to engage in a course of criminal conduct and a substantive offense committed pursuant to that conspiracy, the accused, upon conviction, may be punished both for the conspiracy and for the substantive offense. Pinkerton v. United States, 328 U.S. 640 [66 S.Ct. 1180, 90 L.Ed. 1489] (1946); Hill v. United States, 306 F.2d 245 (9th Cir. 1962). It is also clear that the federal courts have inherent power to impose consecutive sentences unless otherwise specified by the statute defining the specific offense involved. Callahan [Callanan] v. United States, 364 U.S. 587 [81 S.Ct. 321, 5 L.Ed.2d 312] (1961). The statute involved herein does not preclude the imposition of consecutive sentences. See 18 U.S.C. 2113(b) (1964). Petitioner’s motion must therefore be denied.” Only questions of law are presented by defendant’s motion. The court properly denied the motion for the reasons stated in its opinion. Defendant’s contention that the counts" }, { "docid": "15750062", "title": "", "text": "count be dismissed. We affirm the convictions of Foster and Harmon under count one of the indictment and will consider the substantive counts later in this opinion. The defendants were each sentenced to five years imprisonment on count one to run concurrent with sentences on other counts. The defendants Foster and Harmon were convicted on counts eleven, twelve, fourteen, fifteen, eighteen, twenty-four, twenty-eight and thirty-four, all of,which charged substantive offenses in violation of Title 18, Section 215, U.S.C. It is claimed on behalf of the defendants that they have received dual punishment by being sentenced on both the substantive counts and the conspiracy count. There is ample evidence to support the convictions on these counts. The question thus presented is whether the convictions can stand on both the substantive counts and the conspiracy count. In Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 364, 98 L.Ed. 435 (1954), the Court said in an opinion by Chief Justice Warren, “It is-settled law in this country that the commission of a substantive offense and a conspiracy to commit it are separate and distinct crimes, and a plea of double jeopardy is no defense to a conviction for both. See Pinkerton v. United States, 328 U.S. 640, 643-644, [66 S.Ct. 1180, 1181-82] 70 L.Ed. 1489 and cases cited therein. Only if the substantive offense and the conspiracy are identical does a conviction for both constitute double jeopardy. (Emphasis added) Cf. Gavi-eres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489.” We said in United States v. Austin, 529 F.2d 559, 562 (6th Cir. 1976), “Yet it is clear that the Fifth Amendment comes into play to prohibit double punishments where the substantive and conspiracy counts of an indictment charge essentially the same offense. (Citations omitted) * * * As the Supreme Court has held, whenever it appears that the proof of one offense proves every essential element of another growing out of the same act, the Fifth Amendment limits the punishment to a single act.” (Emphasis added) Keeping in mind the law as above stated, we are" }, { "docid": "19028740", "title": "", "text": "he received from an elevator. A paper sack containing the money was put in the trunk of a car driven by Wise, and Wise and Elvin Woody left together. We are satisfied that sufficient evidence was presented to warrant submission of the issue of Wise’s participation in the grain fraud conspiracy to the jury. This evidence was also sufficient to support Wise’s conviction on the substantive violations charged in Counts II and III of the indictment as an aider and abettor. Moreover, as a participant in the conspiracy, Wise was guilty of substantive violations committed by his coconspirators in furtherance of the conspiracy by virtue of his membership in the conspiracy at the time the substantive violations were committed. Pinkerton v. United States, 328 U.S. 640, 645-48, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); United States v. Kaplan, 554 F.2d 958, 964-65 (9th Cir. 1977); United States v. Wood, 544 F.2d 242, 264 (6th Cir. 1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 787, 50 L.Ed.2d 778 (1977); United States v. Finkelstein, 526 F.2d 517, 522 (2d Cir. 1975), cert. denied, 425 U.S. 960, 96 S.Ct. 1742, 48 L.Ed.2d 205 (1976). The convictions of each of the three defendants on all three counts are affirmed. Affirmed. . The Honorable Fred J. Nichol, Chief Judge, United States District Court for the District of South Dakota, presided. . Cox was sentenced to five years imprisonment on each count with sentences to run concurrently. The execution of sentence on Count III was suspended and Cox was sentenced to five years probation beginning upon his release from prison. Woody was sentenced to two years imprisonment on Counts I and II to run concurrently and on Count III she was sentenced to five years on probation. Wise received concurrent five year sentences on Counts I and II to be served consecutive to a sentence he was serving on a conviction from the District of Minnesota. See United States v. Wise, 553 F.2d 1173 (8th Cir. 1977). On Count III Wise was placed on probation for five years and a $5,000 fine was imposed. . For" }, { "docid": "23459805", "title": "", "text": "instruction. United States v. Bambuias, 471 F.2d 501, 505 (7th Cir. 1972). See Hisaji Watada v. United States, 301 F.2d 869 (9th Cir. 1962) (per curiam) (failure to specifically instruct on the credibility of a prostitute’s testimony not error where general instructions were sufficient); Chargois v. United States, 267 F.2d 410, 412 (9th Cir. 1959) (same). Here, the jury knew that the deponents were under sentence pursuant to a criminal conviction, even if under foreign law, because of the circumstances under which the depositions were taken: Questions and answers on the deposition videotape clearly revealed the nature of Adam’s and Gamble’s residence at Yokosuka Prison in Japan. We conclude that the failure to give the disputed instruction was not error. D. Consecutive Sentences and the “Same Evidence” Rule Appellants challenge their consecutive sentences for the conspiracy and the substantive offenses as a violation of the fifth amendment double punishment prohibition. In support of this argument, they cite United States v. Austin, 529 F.2d 559 (6th Cir. 1976), which held that the Constitution forbids consecutive sentences where they are imposed for essentially the same offenses proven by the same evidence. Conspiracy and substantive offenses have been traditionally treated as separately chargeable — and punishable — crimes. See Iannelli v. United States, 420 U.S. 770, 777-78, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 98 L.Ed. 435 (1954). This rule is widely followed, the enhancement of both the danger to society and the difficulty of law enforcement brought about by the concert of action between co-conspirators justifying the separate statuses. See Iannelli, supra; Callanan v. United States, 364 U.S. 587, 593-94, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961); Pinkerton v. United States, 328 U.S. 640, 643-44, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The functional rule appellants argue for here — the barring of conviction on a separate conspiracy charge when the defendant has been convicted at the same time of the substantive offense — has been the subject of some scrutiny in this circuit. It has been suggested that the existing" }, { "docid": "2921271", "title": "", "text": "“For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict?” Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1874). Added punishment under a valid sentence simply because the defendant has successfully shown the invalidity of the sentence under another count is a plain violation of the constitutional protection. It may not be justified because the sentencing judge would have imposed the higher penalty if he had been aware of the invalidity of the sentence imposed on the other counts. Welty’s motion to correct the illegal sentences should have been granted. The sentences under counts 2, 3, and 4 should be declared invalid and vacated, and the sentences under count 1 for conspiracy and count 5 for violation of § 2113(d) will stand as originally imposed for terms of four years each. The appeals of defendants Hughey and Robichaw present substantially similar questions. The facts in their case are less favorable to the government in regard to record indications of the intention of the sentencing judge. We need not restate in detail the facts relating to each of their cases. They are governed by the principles here announced, and these require the granting of their motions to correct the sentences imposed upon them. The orders of the district court dismissing the motions to correct the sentences in the appeals of Welty, Hughey and Robichaw respectively will be reversed and their cases remanded for further proceedings in accordance with this opinion. . Rule 35 provides : “The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The Court may reduce a sentence within 120 days after the sentence is imposed, * * * ” . Welty’s petition alleged that “For purposes of sentencing, the offenses charged in counts three, four and five must be considered as merged with the offense charged in count two.” But since count 5 rather than count 2" }, { "docid": "12723017", "title": "", "text": "January 25, 1966, found defendant’s motion to be without merit and dismissed the same, stating: “It is well established that when an indictment charges both a conspiracy to engage in a course of criminal conduct and a substantive offense committed pursuant to that conspiracy, the accused, upon conviction, may be punished both for the conspiracy and for the substantive offense. Pinkerton v. United States, 328 U.S. 640 [66 S.Ct. 1180, 90 L.Ed. 1489] (1946); Hill v. United States, 306 F.2d 245 (9th Cir. 1962). It is also clear that the federal courts have inherent power to impose consecutive sentences unless otherwise specified by the statute defining the specific offense involved. Callahan [Callanan] v. United States, 364 U.S. 587 [81 S.Ct. 321, 5 L.Ed.2d 312] (1961). The statute involved herein does not preclude the imposition of consecutive sentences. See 18 U.S.C. 2113(b) (1964). Petitioner’s motion must therefore be denied.” Only questions of law are presented by defendant’s motion. The court properly denied the motion for the reasons stated in its opinion. Defendant’s contention that the counts charging the substantive offenses and conspiracy were improperly joined is without merit. Such joinder is permissible under Rule 8, Fed.R.Crim.P. Schaffer v. United States, 362 U.S. 511, 514, 80 S.Ct. 945, 4 L.Ed.2d 921. Upon appeal, defendant has raised the additional issue that he is legally incapable of a conspiracy with his wife. Such contention was not raised in the trial court and hence is not en titled to consideration here. In any event, the contention is without merit. See United States v. Dege, 364 U.S. 51, 80 S.Ct. 1589, 4 L.Ed.2d 1563. Moreover, as heretofore set out, the conspiracy count charges a conspiracy with Tinkle as well as a conspiracy with Mrs. Pegram. Tinkle’s conviction upon the substantive and conspiracy counts was affirmed in our prior opinion, supra. The judgment is affirmed." }, { "docid": "2544444", "title": "", "text": "that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.’ L. Hand, J., in United States v. Peoni, (CCA 2d NY) 2 Cir., 100 F.2d 401, 402.” That standard has been followed by this Court in United States v. Luxenberg, 374 F.2d 241, 249 (1967), and United States v. Milby, 400 F.2d 702, 706 (1968). No direct evidence of actual communication between the aider and abettor and the principal need be introduced. Morei v. United States, 127 F.2d 827, 830, (6th Cir. 1942); White v. United States, 366 F.2d 474, 476 (10th Cir. 1966). The aider and abettor may be convicted although there was no proof that he entered the bank. Pinkney v. United States, 380 F.2d 882, 885 (5th Cir. 1967), cert. denied, 390 U.S. 908, 88 S.Ct. 831, 19 L.Ed.2d 876 (1968). We affirm appellant Calvert’s conviction as an aider and abettor of the robbery. 3) Conspiracy convictions. Bradley and Calvert were both charged in Count 3, and were convicted of violating 18 U.S.C. § 371, which reads: “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.” The commission of a substantive offense and a conspiracy to commit it are separate and distinct crimes, and a plea of double jeopardy does not arise on a conviction for both. Pinkerton v. United States, 328 U.S. 640, 643, 644, 66 S.Ct. 1180, 90 L.Ed. 1489; Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 98 L.Ed. 435 (1953); Callanan v. United States, 364 U.S. 587, 590, 81 S.Ct. 321, 5 L.Ed.2d 312 (1960). Neither does a conviction for a substantive offense in any way merge a" }, { "docid": "22443983", "title": "", "text": "REGAN, District Judge. His two most recent applications for post-conviction relief, one under Rule 35, Federal Rules of Criminal Procedure, and the other under 28 U.S.C. Section 2255, having been denied by the district court, Anthony Cardarella has again appealed to this Court. Again we affirm both orders. Cardarella was convicted in 1961 on three counts of an indictment, the first two charging him with the substantive offenses of obstructing justice in violation of 18 U.S.C. Section 1503, by shooting a witness because he testified before a federal grand jury in a narcotics investigation, and by the same assault endeavoring to intimidate this witness from testifying in a subsequent trial. The remaining count charged him with conspiring to obstruct justice in violation of 18 U.S.C. Section 371. He received concurrent sentences of five years for the substantive offenses and an additional sentence of five years on the conspiracy count to run consecutive to the sentence on the other counts. The convictions of Cardarella and Felix Ferina, a co-defendant, were affirmed by this Court in Ferina v. United States, 8 Cir., 302 F.2d 95 (1962) cert. denied sub nom. Cardarella v. United States, 371 U.S. 819, 83 S.Ct. 35, 9 L.Ed.2d 59 (1963). Cardarella’s motion under Rule 35, attacking the validity of his sentence, is based on the contention that the consecutive sentences imposed double punishment for the same offense. His theory is that the evidence necessarily used to prove the substantive offenses was also required to prove the conspiracy charge, hence, there was but one offense within the reasoning of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 and Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435. Petitioner’s protestations to the contrary notwithstanding, this same issue was advanced by him in an earlier unsuccessful motion also filed under Rule 35 which this Court held to be without substance. Cardarella v. United States, 8 Cir., 351 F.2d 272 (1965). So, too, Ferina also made a similar claim of double punishment which was rejected by this Court. Ferina v. United States, 8" }, { "docid": "2544445", "title": "", "text": "Bradley and Calvert were both charged in Count 3, and were convicted of violating 18 U.S.C. § 371, which reads: “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.” The commission of a substantive offense and a conspiracy to commit it are separate and distinct crimes, and a plea of double jeopardy does not arise on a conviction for both. Pinkerton v. United States, 328 U.S. 640, 643, 644, 66 S.Ct. 1180, 90 L.Ed. 1489; Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 98 L.Ed. 435 (1953); Callanan v. United States, 364 U.S. 587, 590, 81 S.Ct. 321, 5 L.Ed.2d 312 (1960). Neither does a conviction for a substantive offense in any way merge a conspiracy charge into the substantive crime. Callanan v. United States, supra., 364 U.S. at 587, 81 S.Ct. 321. In Pereira,, supra, 347 U.S., at 11, 74 S.Ct. 358, the Court specifically held that aiding and abetting, under the facts of that case, was a separate crime from conspiring. We can find no meaningful distinction in the facts presented here. The jury found that Bradley robbed the bank, aided and abetted by Calvert. We have affirmed the jury’s verdict in this regard. Quite obviously, the successful prosecution of this criminal business was the product of some communication and agreement between the defendants. In criminal law this is called conspiracy. It is not for us to question the policy which prompted the prosecution to add the conspiracy count, nor the decision of the District Judge to make the sentences imposed for conspiracy consec-tive to those given for the substantive offenses. Affirmed." }, { "docid": "2921272", "title": "", "text": "to record indications of the intention of the sentencing judge. We need not restate in detail the facts relating to each of their cases. They are governed by the principles here announced, and these require the granting of their motions to correct the sentences imposed upon them. The orders of the district court dismissing the motions to correct the sentences in the appeals of Welty, Hughey and Robichaw respectively will be reversed and their cases remanded for further proceedings in accordance with this opinion. . Rule 35 provides : “The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The Court may reduce a sentence within 120 days after the sentence is imposed, * * * ” . Welty’s petition alleged that “For purposes of sentencing, the offenses charged in counts three, four and five must be considered as merged with the offense charged in count two.” But since count 5 rather than count 2 states the offense in its most inclusive form, the sentences under counts 2, 3, and 4 merged with the sentence under count 5, and we treat the petition as so claiming. Cf. Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). . United States v. Welty, 287 F.Supp. 580 (E.D.Pa.1968). . Although Prince dealt only with § 2113 (a), later cases have made clear that its rationale extends to the combinations possible under the various subsections of § 2113 and that sentence under any part of § 2113 precludes a separate sentence under another part. See, e. g., Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959) ; United States v. Chester, 407 F.2d 53 (3 Cir.), cert. denied 394 U.S. 1020, 89 S.Ct. 1642, 23 L.Ed.2d 45 (1969) ; Whalen v. United States, 367 F.2d 468 (5 Cir. 1966) ; United States v. Gardner, 347 F.2d 405 (7 Cir. 1965), cert. denied 382 U.S. 1015, 86 S.Ct. 626, 15 L.Ed.2d 529 (1966) ; United" }, { "docid": "6024747", "title": "", "text": "he was sentenced to serve a total of ten years upon conviction for twenty three crimes for which, if they are separate crimes, he could have received maximum consecutive sentences totaling one hundred and fifteen years. Appellant argues that all these counts, the securities fraud, the mail fraud, and the conspiracy, in essence allege but one crime and that the maximum sentence that could be imposed would be one five year sentence. It is settled that each separate use of the mails in the execution of a scheme to defraud constitutes a separate offense. Badders v. United States, 240 U.S. 391, 36 S.Ct. 367, 60 L.Ed. 706 (1916); Mitchell v. United States, 142 F.2d 480 (10th Cir. 1944). And it has long been settled that consecutive sentences may be imposed for the violation of a criminal statute and for conspiracy to violate it. See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) and Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954). If the conspiracy sentence had been made to run consecutively to the mail fraud sentences (and concurrently with the securities fraud sentences) rather than consecutively to the securities fraud sentences we might or might not have a question. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 [June 23, 1969]. But as it is we inquire whether the securities fraud counts allege crimes separate and distinct from both those alleged in the mail fraud counts and that, alleged in the conspiracy count. Each of these securities fraud counts refers to a separate offer and sale of the securities described therein to certain named individuals and alleges one specific use of the mails or instrumentality of commerce thus setting forth a separate and complete fraudulent transaction. Though some distinct courts have held to the contrary, see United States v. Hughes, 195 F.Supp. 795 (S.D.N.Y.1961) and United States v. Greenberg, 30 F.R.D. 164 (S.D.N.Y.1962) and though United States v. Cashin, 281 F.2d 669 (2d Cir. 1960) looks somewhat to the contrary while primarily construing Rule" }, { "docid": "21893579", "title": "", "text": "and customers during the commission of a bank robbery (count II), in violation of the Federal Bank Robbery Act, 18 U.S.C. § 2113(a) and (d). The district court sentenced the appellants to 20 years imprisonment on each of these counts, the two terms to be served concurrently. Since each of these counts charged a crime defined by the Federal Bank Robbery Act, it was error for the district court to impose separate sentences with respect to each of them. And this was so even though the terms of imprisonment were ordered to be served concurrently. United States v. Mariani, 539 F.2d 915, 917 (2d Cir. 1976); United States v. Corson, 449 F.2d 544, 551 and n. 15 (3d Cir. 1971); United States v. Welty, 426 F.2d 615 (3d Cir. 1970). Count III of the federal information charged the appellants with a conspiracy, in violation of 18 U.S.C. § 371, to commit the substantive offenses charged in the first two counts. On this count the appellants were sentenced to serve five years in prison, the terms of imprisonment to run consecutively to their sentences of imprisonment on the first two counts. It is well established that conspiracy to commit a substantive offense and the commission of the substantive offense itself are separate crimes and punishable as such. This rule is applicable with respect to the conspiracy to rob a bank and the actual robbery of the bank itself under the Federal Bank Robbery Act, United States v. Davis, 573 F.2d 1177, 1180 (10th Cir.), cert. denied, 436 U.S. 930, 98 S.Ct. 2829, 56 L.Ed.2d 775 (1978); Wright v. United States, 519 F.2d 13, 20 (7th Cir.), cert. denied, 423 U.S. 932, 96 S.Ct. 285, 46 L.Ed.2d 262 (1975). Accordingly, the imposition by the district court of a separate sentence on this count was not error. We turn next to the sentences imposed on the five counts of the territorial information on which the appellants were convicted. We will first consider their sentences on counts V, VI, and VII of that information, each of which counts charged them with assaults against a" }, { "docid": "2921274", "title": "", "text": "States v. Poindexter, 293 F.2d 329 (6 Cir. 1961), cert. denied 368 U.S. 961, 82 S.Ct. 406, 7 L.Ed.2d 392 (1962) ; Kitts v. United States, 243 F.2d 883 (8 Cir. 1957). . 407 F.2d at 55. . See also, e. g., Whalen v. United States, 367 F.2d 468 (5 Cir. 1966). The same result was reached prior to Prince in a case indistinguishable from the present case: Miller v. United States, 147 F.2d 372 (2 Cir. 1945). . See Miller v. United States, 147 F.2d 372, 374 (2 Cir. 1945). . United States v. Mayer, 235 U.S. 55, 67-69, 35 S.Ct. 16, 59 L.Ed. 129 (1914), (Hughes, J.). See also 2 Bishop, New Criminal Procedure § 1298 (2d ed. 1913). . Heflin v. United States, 358 U.S. 415, 421, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959) (Stewart, J. concurring). . 287 F.Supp. at 583-584. . United States ex rel. Speaks v. Brierley, 417 F.2d 597, 002 (3 Cir. 1969). . United States v. Sacco, 367 F.2d 368, 370 (2 Cir. 1960). . See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Benz, 282 U.S. 304, 307-309, 51 S.Ct. 113, 75 L.Ed. 354 (1931). See also Note, 75 Yale L.J. 262, 313-17 (1965). . United States v. Adams, 362 F.2d 210 (6 Cir. 1966) ; Duggins v. United States, 240 F.2d 479, 482 (6 Cir. 1957) ; Ekberg v. United States, 167 F.2d 380, 388 (1 Cir. 1948). . Welty raises for the first time, on appeal, the contention that the conspiracy sentence under § 371 is invalid because there can be no consecutive punishment for conspiracy following the punishment for the substantive offense. The argument is without merit. Callanan v. United States, 264 U.S. 587, 593, 597, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961) ; Pereira v. United States, 347 U.S. 1, 11-12, 74 S.Ct. 358, 98 L.Ed. 435 (1954) ; Pinkerton v. United States, 328 U.S. 640, 643-645, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) ; McHenry v. United States, 308 F.2d 700, 704 (10 Cir. 1962). ." }, { "docid": "23404124", "title": "", "text": "being founded on offenses that are duplicitous. It is their position proof of identical facts is required to support both counts of the indictment; thus the offenses constitute double jeopardy. As an offshoot of this argument, appellants claim error in sentencing consecutively on both counts when the same facts are necessary to prove both offenses. The double jeopardy clause does not bar a single trial for multiple offenses arising out of one transaction if each offense rests on different criminal elements. Smith v. Gaffney, 462 F.2d 663 (10th Cir. 1972). “When each offense requires proof of a fact not essential to the other, the charges are not identical and the accused can be charged, tried and convicted of both offenses even though the charges arise out of the same acts.” Goldsmith v. Cheney, 447 F.2d 624, 627 (10th Cir. 1971). The law is well settled that commission of a substantive offense and a conspiracy to commit it are separate crimes. The substantive offense of illegally importing heroin into the United States requires no more than one person for its commission. Similarly, aiding and abetting does not require an agreement, for these terms are employed to make the defendant a principal when he consciously shares in a criminal act regardless of the existence of a conspiracy. Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949). The essence of a conspiracy charge is an agreement to commit an offense against the United States. Whether Jackson and Price were convicted as principals or for aiding and abetting, it is clear their conviction does not rest on the agreement. Thus the offenses in Count One require proof not essential to the conspiracy conviction. Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). It logically follows that consecutive sentences do not constitute double punishment, for the same crime. The test to determine identity of offenses is whether each count requires proof of a fact or element not required by" }, { "docid": "20122000", "title": "", "text": "an agreement by the appellants during the period of September 15, 1967 to January 1, 1968 to break the law by using wire communication facilities for transmission of bets between Virginia and Washington, D. C., 18 U.S.C. § 1084. The conspiracy was also alleged to embrace traveling or causing travel between the two areas with intent to carry on locally prohibited activities, punishable under 18 U.S.C. § 1952. Further, the defendants were charged under this count with an agreement to transport gambling paraphernalia in interstate commerce, prohibited by 18 U.S.C. § 1953. Counts 2, 3, 4 and 5 are couched in the proscriptive words of section 1952, and describe joint offenses of the two appellants which were of the same character with, and committed during the continuance of, the conspiracy. Citation of 18 U.S.C. § 2(a) after each of these counts implies an accusation of collusion between the two as aiders and abettors. The prosecution is invalid, argue the appellants, because it pluralizes into five the single crime of conspiracy alleged in count 1. They say that pursuant to this form of criminal pleading evidence identical to that adduced to establish the conspiracy was used to convict on the four substantive counts. The result, they insist, was to put the defendants in multiple jeopardy, as squarely demonstrated by consecutive punishments on the five counts. Refutation of this argument begins with Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 364, 98 L.Ed. 435 (1954) where the Chief Justice said: “The petitioners allege .that their conviction on both the substantive counts and a conspiracy to commit the crimes charged in the substantive counts constitutes double jeopardy. It is settled law in this country that the commission of a substantive offense and a conspiracy to commit it are separate and distinct crimes, and a plea of double jeopardy is no defense to a conviction for both. See Pinkerton v. United States, 328 U.S. 640, 643-644, 66 S.Ct. 1180, 1181-1182, 90 L.Ed. 1489, and cases cited therein. Only if the substantive offense and the conspiracy are identical does a conviction for" }, { "docid": "2921275", "title": "", "text": "Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Benz, 282 U.S. 304, 307-309, 51 S.Ct. 113, 75 L.Ed. 354 (1931). See also Note, 75 Yale L.J. 262, 313-17 (1965). . United States v. Adams, 362 F.2d 210 (6 Cir. 1966) ; Duggins v. United States, 240 F.2d 479, 482 (6 Cir. 1957) ; Ekberg v. United States, 167 F.2d 380, 388 (1 Cir. 1948). . Welty raises for the first time, on appeal, the contention that the conspiracy sentence under § 371 is invalid because there can be no consecutive punishment for conspiracy following the punishment for the substantive offense. The argument is without merit. Callanan v. United States, 264 U.S. 587, 593, 597, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961) ; Pereira v. United States, 347 U.S. 1, 11-12, 74 S.Ct. 358, 98 L.Ed. 435 (1954) ; Pinkerton v. United States, 328 U.S. 640, 643-645, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) ; McHenry v. United States, 308 F.2d 700, 704 (10 Cir. 1962). . On October 7, 1966, James Hughey and Calvin Frederick Robichaw were sentenced on five counts, parallel to those in the Welty case, arising from a single bank theft in which they participated. Hughey was sentenced to five consecutive terms of four years each. Robichaw received five-year sentences on all five counts, the first three sentences to run consecutively and the last two concurrently with the sentence on count 3, and further, the sentences on counts 3, 4, and 5 were suspended and Robichaw placed on probation for the period of those sentences." }, { "docid": "22768746", "title": "", "text": "and Frank Palermo intended to obtain said monies and control by and with the consent of victims Donald Paul Nesseth and Leonard Blakely without payment of considerations for the monies and control so received.” Subparagraphs c. and d. are substantially the same as those set forth in footnote 4 as to Count 1. . On Counts 5, 7 and 9, imprisonment consecutively for five years, a total of fifteen years, was made to run concurrently with the twenty-five years imposed for Counts 1 and 3. . On Counts 2, 4 and 5, imprisonment consecutively for five years, a total of fifteen years, was made to run concurrently with the fifteen years imposed for Count 1. Likewise, imprisonment consecutively for five years each on Counts 6, 8 and 10, a total of fifteen years, was made to run concurrently. . A sentence of five years on Counts 4 and 5 was made to run concurrently. . See Hulahan v. United States, 8 Cir., 1954, 214 F.2d 441, 445, cert. den., 348 U.S. 856, 75 S.Ct. 81, 99 L.Ed. 675 (1954). . The legislative history of the bill indicates that while most of the drafting problems presented by the bill related to its coverage of labor activities, the bill was broadly conceived of as part of a legislative plan to deter professional gangsterism. S.Rep. No. 1440, 73d Congress, 2d Session. . Wong Tai v. United States, 1927, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545. . Schino v. United States, 9 Cir., 1954, 209 F.2d 67, 69, cert. don., 1954, 347 U.S. 937, 74 S.Ct. 627, 98 L.Ed. 1087. . Rodd v. United States, 9 Cir., 1948, 165 F.2d 54. . See Rule 12(b) (2), F.R.Cr.P. . Suggestions by Carbo and Gibson that they were not tried in the proper state and district are not open to consideration since no motion for change of venue under Rule 21(b) was made below. . Compare Bratton v. United States, 10 Cir., 1934, 73 F.2d 795. . Callanan v. United States, 1961, 364 U.S. 587, 81 S.Ct. 321, 5 L.Ed.2d 312. . See Hirabayashi" }, { "docid": "6024746", "title": "", "text": "can claim no benefit therefrom. Unto each that to which he is due. Successive Sentences We consider now appellant’s contention that it was error to sentence him to successive sentences on counts involving essentially the same evidence. He was convicted on all counts except counts four and nineteen which were abandoned by the Government. Thus he was convicted on eleven securities fraud counts, eleven mail fraud counts and on the conspiracy count. On each of the eleven securities fraud counts he was sentenced to five years imprisonment, these eleven sentences to run concurrently with one another. On each of the eleven mail fraud counts he was likewise sentenced to five years imprisonment, these eleven separate sentences to run concurrently as among themselves but consecutively to the five year term imposed on the securities fraud counts. And on the conspiracy count he was sentenced to five years imprisonment to run concurrently with the five year terms imposed on the mail fraud counts but consecutively to the five year terms imposed on the securities fraud convictions. Thus he was sentenced to serve a total of ten years upon conviction for twenty three crimes for which, if they are separate crimes, he could have received maximum consecutive sentences totaling one hundred and fifteen years. Appellant argues that all these counts, the securities fraud, the mail fraud, and the conspiracy, in essence allege but one crime and that the maximum sentence that could be imposed would be one five year sentence. It is settled that each separate use of the mails in the execution of a scheme to defraud constitutes a separate offense. Badders v. United States, 240 U.S. 391, 36 S.Ct. 367, 60 L.Ed. 706 (1916); Mitchell v. United States, 142 F.2d 480 (10th Cir. 1944). And it has long been settled that consecutive sentences may be imposed for the violation of a criminal statute and for conspiracy to violate it. See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) and Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954). If the" }, { "docid": "927679", "title": "", "text": "PER CURIAM: Appellant, Mark Cheers Jr., was indicted in 1969 on two counts: Count 1, conspiracy to rob a bank insured by the Federal Deposit Insurance Corporation in violation of 18 U.S.C.A. § 371; and Count 3, receiving stolen money from the bank in violation of 18 U.S.C.A. §§ 2, 2113(c). The jury was instructed that it could find appellant guilty on both the conspiracy and the substantive counts, and the jury did so. Appellant was subsequently sentenced to three years on Count 1 and five years on Count 3, the sentences to run consecutively. Appellant first contends that under the principles of Milanovich v. United States, 1960, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773, and Heflin v. United States, 1959, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407, he cannot be convicted both of conspiracy to commit bank robbery and receiving stolen money from the bank. In those two cases the Supreme Court held that the separate sentence for receiving stolen money provided under the federal bank robbery statute was not designed to increase punishment for one who robs a bank; rather, it was simply designed to provide punishment for those who receive the loot from the robber. See also United States v. Suel, 5 Cir. 1970, 435 F.2d 1272; Thomas v. United States, 5 Cir. 1969, 418 F.2d 567. Under the federal statute, therefore, the acts of robbing and receiving when performed by the same individual become merged into a single substantive offense. Seizing upon the logic of these cases, appellant contends that “If Mark Cheers, Jr. was guilty of a conspiracy it was to rob the Grenada Bank. The robbery was consummated as an overt act by one of the conspirators and therefore became the act of Cheers. Cheers cannot be convicted of robbery and receiving * * Appellant’s syllogistic reasoning, however, ignores the well-established principle that “the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses.” Pinkerton v. United States, 1946, 328 U.S. 640, 643, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489. The offense of conspiracy" } ]

[ { "docid": "4337059", "title": "", "text": "illegally caused. In response to the holding in Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8 S.Ct. 811, 31 L.Ed. 629 (1888) that there was no federal common law prohibiting an obstruction to a navigable stream, Congress moved speedily to pass the Rivers and Harbors Act of 1890, 26 Stat. 426. This was later replaced by the Act of March 3, 1899, 30 Stat. 1121, whose provisions are found in 33 U.S.C. § 401 et seq. Section 10 of the Act of 1899, now 33 U.S.C. § 403, said that “The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited” and also that “it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of * * * the channel of any navigable water of the United States,” save on prior recommendation of the Chief of Engineers and authorization by the Secretary of the Army. 33 U.S.C. § 406 makes a violation of the above a misdemeanor punishable by a fine of not more than $2,500 nor less than $500, or imprisonment for not exceeding one year, or both. It further provides that “the removal of any structures or parts of structures erected in violation of the provisions of the said sections may be enforced by the injunction of any district court exercising jurisdiction in any district in which such structures may exist, and proper proceedings to this end may be instituted under the direction of the Attorney General of the United States.” 33 U.S.C. § 407 makes it unlawful, inter alia, “to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water * * * where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed.” 33 U.S. C. § 411 makes violation" } ]

[ { "docid": "22039486", "title": "", "text": "to Conservation: The Call for a National Water Policy and the Evolution of Federal Jurisdiction Over Wetlands, 69 N. D. L. Rev. 873, 877 (1993). This goal was pursued through the various Rivers and Harbors Acts, the most comprehensive of which was the RHA of 1899. Section 13 of the 1899 RHA, commonly known as the Refuse Act, prohibited the discharge of “refuse” into any “navigable water” or its tributaries, as well as the deposit of “refuse” on the bank of a navigable water “whereby navigation shall or may be impeded or obstructed” without first obtaining a permit from the Secretary of the Army. 30 Stat. 1152. During the middle of the 20th century, the goals of federal water regulation began to shift away from an exclusive focus on protecting navigability and toward a concern for preventing environmental degradation. Kalen, 69 N. D. L. Rev., at 877-879, and n. 30. This awakening of interest in the use of federal power to protect the aquatic environment was helped along by efforts to reinterpret § 18 of the RHA in order to apply its permit requirement to industrial discharges into navigable waters, even when such discharges did nothing to impede navigability. See, e. g., United States v. Republic Steel Corp., 362 U. S. 482, 490-491 (1960) (noting that the term “refuse” in § 13 was broad enough to include industrial waste). Seeds of this nascent concern with pollution control can also be found in the FWPCA, which was first enacted in 1948 and then incrementally expanded in the following years. The shift in the focus of federal water regulation from protecting navigability toward environmental protection reached a dramatic climax in 1972, with the passage of the CWA. The Act, which was passed as an amendment to the existing FWPCA, was universally described by its supporters as the first truly comprehensive federal water pollution legislation. The “major purpose” of the CWA was “to establish a comprehensive long-range policy for the elimination of water pollution.” S. Rep. No. 92-414, p. 95 (1971), 2 Legislative History of the Water Pollution Control Act Amendments of 1972" }, { "docid": "9872607", "title": "", "text": "to supplement the inadequate enforcement provisions in water pollution legislation existing during the 1960’s, federal officials began to invoke the Refuse Act as a broad pollution control measure. The statutory proscription of refuse discharges was construed to prohibit oil pollution. United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966). The courts also interpreted the statute as impliedly authorizing injunctions to abate pollution and damages for the cost of removal operations. See Wyandotte Transportation Co. v. United States, 389 U.S. 191, 204-05, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); United States v. Republic Steel Corp., 362 U.S. 482, 491-92, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960). . References in the legislative history to Refuse Act penalties that have been cited by the government are fully consistent with this statutory pattern. See, e. g., 118 Cong.Rec. 33705, 33757-58, 33760 (1972), reprinted in 1 Committee on Public Works, Ser. No. 93-1, Legislative History of the Water Pollution Control Act Amendments of 1972, at 191, 252-54, 260 (1973). See generally 1 F. Grad, Treatise on Environmental Law § 3.03[l][b] at 3-78 (1978). . See H.R.Conf. Rep. No. 91-940, 91st Cong., 2d Sess. 30, 35, 39, reprinted in [1970] U.S. Code Cong. & Admin.News, pp. 2712, 2714-15, 2719-20, 2724. . Recognizing that the limitation amount was based on inadequate knowledge about the cost of oil spill cleanup operations, Congress expressed an intention to review the figure in light of later experience. See S.Rep. No. 91-351, 91st Cong., 1st Sess. 6-7 (1969). By 1977, Congress had concluded that the “per ton limit on smaller vessels is not adequate to provide liability commensurate with the costs of cleanup which have been experienced . . . S.Rep.No.95-370, 95th Cong., 1st Sess. 64, reprinted in [1977] U.S.Code Cong. & Admin. News, pp. 4326, 4389. Congress therefore raised the limitation on a barge owner’s liability from the lesser of $100 per gross ton or $14,000,000 to the greater of $125 per gross ton or $125,000. Clean Water Act of 1977, Pub.L. 95-217, § 58(d)(2), 91 Stat. 1566, 1595 (codified at 33 U.S.C. §" }, { "docid": "18538116", "title": "", "text": "with the navigation of the waters.” 27 Op. Atty. Gen. 284, 288. This narrow view of the Secretary’s authority persisted within the agency for many decades. “Until 1968,” according to one document produced by the Corps of Engineers, “the Corps administered the 1899 Act regulatory program only to protect navigation and the navigable capacity of the nation’s waters.” 42 Fed. Reg. 37122 (1977). In 1968, the regulations were amended so that the general policy guidance for permit issuance included consideration of “the effects of permitted activities on the public interest including effects upon water quality, recreation, fish and wildlife, pollution, our natural resources, as well as the effects on navigation.” 33 CFR § 209.330(a). Yet even after the Corps adopted this more expansive reading, which the language of the statute and our decisions interpreting it plainly authorized, the House Committee on Government Operations nevertheless concluded that the Corps in practice was still not interpreting its statutory authority broadly enough. See H. R. Rep. No. 91-917, p. 6 (1970). The Committee was of the view that the Corps’ earlier “restricted view of the 1899 act. . . was not required by the law.” Id., at 2. The Report summarized our holdings to the effect that the statutory language of RHA § 10 should be interpreted generously, id., at 2-4, and commended the Corps “for recognizing [in 1968] its broader responsibilities” pursuant to its permitting authority under the RHA, id., at 5. The Committee emphasized that the Corps “should instruct its district engineers ... to increase their emphasis on how the work will affect all aspects of the public interest, including not only navigation but also conservation of natural resources, fish and wildlife, air and water quality, esthetics, scenic view, historic sites, ecology, and other public interest aspects of the waterway.” Id., at 6 (emphasis added). The Corps did not react to this “advice” until after the Fifth Circuit’s decision in Zabel v. Tabb, 430 F. 2d 199 (1970). There the court upheld the Corps’ consideration of environmental factors in its permitting decision even though the project would not interfere with navigation," }, { "docid": "22039485", "title": "", "text": "for actually navigable waters, their tributaries, and wetlands adjacent to each. Its holding rests on two equally untenable premises: (1) that when Congress passed the 1972 CWA, it did not intend “to exert anything more than its commerce power over navigation,” ante, at 168, n. 3; and (2) that in 1972 Congress drew the boundary defining the Corps’ jurisdiction at the odd line on which the Court today settles. As I shall explain, the text of the 1972 amendments affords no support for the Court’s holding, and amendments Congress adopted in 1977 do support the Corps’ present interpretation of its mission as extending to so-called “isolated” waters. Indeed, simple common sense cuts against the particular definition of the Corps’ jurisdiction favored by the majority. I The significance of the FWPCA Amendments of 1972 is illuminated by a reference to the history of federal water regulation, a history that the majority largely ignores. Federal regulation of the Nation’s waters began in the 19th century with efforts targeted exclusively at “promoting] water transportation and commerce.” Kalen, Commerce to Conservation: The Call for a National Water Policy and the Evolution of Federal Jurisdiction Over Wetlands, 69 N. D. L. Rev. 873, 877 (1993). This goal was pursued through the various Rivers and Harbors Acts, the most comprehensive of which was the RHA of 1899. Section 13 of the 1899 RHA, commonly known as the Refuse Act, prohibited the discharge of “refuse” into any “navigable water” or its tributaries, as well as the deposit of “refuse” on the bank of a navigable water “whereby navigation shall or may be impeded or obstructed” without first obtaining a permit from the Secretary of the Army. 30 Stat. 1152. During the middle of the 20th century, the goals of federal water regulation began to shift away from an exclusive focus on protecting navigability and toward a concern for preventing environmental degradation. Kalen, 69 N. D. L. Rev., at 877-879, and n. 30. This awakening of interest in the use of federal power to protect the aquatic environment was helped along by efforts to reinterpret § 18 of" }, { "docid": "23401338", "title": "", "text": "1235. With this factual background, we examine the arguments of the parties. 8. FEIS Cost-Benefit Analysis Introduction. In its various forms, cost-benefit analysis is one of several useful decisionmaking tools, but like any tool it can be misused. For instance, the Corps itself has received criticism for its misuse of cost-benefit analysis in assessing its water projects. In the 1960’s such criticism helped lead to the enactment of NEPA and at least two commentators have concluded that the Corps has responded to this criticism and NEPA by improving its incorporation of environmental values into its decisionmaking process. In issuing permits for dredging and landfills, the subject of this lawsuit, the Corps’ historical record is much better. In 1968, before NEPA, the Corps revised its permit regulations declaring that in considering permit applications, it would weigh all relevant factors, including the effect of the proposed work on navigation, fish and wildlife, conservation, pollution, esthetics, ecology, and the general public interest. 33 C.F.R. § 209.120(d)(1) (1968). A subsequent congressional report praised the Corps for this policy and strongly encouraged its expansion and broader application. See House Committee on Government Operations, Our Waters and Wetlands: How the Corps of Engineers Can Help Prevent Their Destruction and Pollution, H.R.Rep. No. 917, 91st Cong., 2d Sess. (1970). Aware of the value of cost-benefit analysis, but also cognizant of its limitations and particularly its misuses, we turn to the specifics of cost-benefit analysis under NEPA. NEPA. NEPA does not require an agency to take the action that is the most compatible with environment, nor does it permit a court to substitute its judgment for that of the agency on the wisdom of the action taken by the agency. See Strycker’s Bay, 444 U.S. at 227, 100 S.Ct. at 499 (citing, e.g., Kleppe); Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). “The primary purpose of the impact statement is to compel federal agencies to give serious weight to environmental factors in making discretionary choices.” Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 697 (2d Cir.1972); accord" }, { "docid": "22918752", "title": "", "text": "there was insufficient showing of adverse effect, so that denial of a permit would be a taking of property without compensation: It said (p. 381) : “In view of the foregoing, the decision appealed from is quashed and the cause remanded for disposition consistent herewith.” Zabel v. Pinellas County Water & Nav. Con. Auth., Fla., 1965, 171 So.2d 376. Against the Authority’s contention that this ruling intended further proceedings on the application, to accord it a chance to establish adverse effect, the District Court of Appeal directed issuance of a permit. Pinellas County Water & Nav. Con. Auth. v. Zabel, Fla.Ct.App., 1965, 179 So.2d 370. . There was evidence both that it would aid navigation and that it would obstruct navigation. There was similar evidence on pollution. . “The Congress shall have power to regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes.” U.S.Const. Art. I, § 8, Cl. 3. . Landholders cite Weber v. State Harbor Comm’rs, 1873, 85 U.S. (18 Wall.) 65, 21 L.Ed. 798 and United States v. River Rouge Improvement Co., 1926, 269 U.S. 411, 46 S.Ct. 144, 70 L.Ed. 339 as limiting the power of the Federal Government over navigable waters to control for navigational purposes. Not surprisingly, the narrow view these eases take of the Commerce Clause is pre-United States v. Darby, 1941, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609. . Complete documentation of the concern over environmental problems would surely be voluminous, but it is indirectly evidenced by the amount of very recent legal activity. See National Environmental Policy Act of 1969. Pub.Law 91-190 (Jan. 1, 1970), infra note 24; Our Waters and Wetlands: How the Corps of Engineers Can Help Prevent Their Destruction and Pollution, H.Rep. 91-917, 91st Cong., 2d Sess, March 18, 1970, infra text at note 26; Executive Order 11507, Feb. 4, 1970, 38 L.W. 2436; United States v. Ray, 5 Cir., 1970, 423 F.2d 16 [Jan. 22, 1970] ; E. B. Elliott Advertising Co. v. Hill, 5 Cir., 1970, 425 F.2d 1141 [April 3, 1970] ; Citizens Committee for the Hudson" }, { "docid": "8196287", "title": "", "text": "at 921, citing Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., supra. Clearly, that was the intent of the 1899 Refuse Act when it forbade the deposit of refuse matter “ . . . into any tributary of any navigable water from which the same shall float or be washed into such navigable water.” 33 U.S.C. § 407. However, as stated several times in this order, the government presented no evidence that what is deposited in the river by the defendant will float or be washed downstream to any other segment of the river, and has specifically disavowed any intent to rely upon the so-called “tributary theory” under the Act. Instead, the plaintiff contends solely that the river adjoining the defendant’s property is navigable. With due regard to the liberality frequently accorded the federal regulatory powers, the court notes the well reasoned analysis and summarization of the “Appalachian guidelines” in Rochester Gas and Electric Corp. v. Federal Power Comm., 344 F.2d 594 (2nd Cir. 1965), cert. denied, 382 U.S. 832, 86 S.Ct. 72, 15 L.Ed.2d 75 (1965), wherein the following threefold test of navigability was deduced, . . . if (1) it presently is being used or is suitable for use, or (2) it has been used or was suitable for use in the past, or (3) it could be made suitable for use in the future by reasonable improvements. (emphasis added). Id., 344 F.2d at 596. This synopsis of Appalachian has been cited with approval and followed by the courts in Marine Stevedoring Corp. v. Oosting, 398 F.2d 900, 908 (4th Cir. 1968) reversed on other grounds, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969); Spiller v. Thomas M. Lowe and Assoc., Inc., 328 F.Supp. 54, 60 (W.D.Ark.1971); Pitship Duck Club v. Town of Sequim, 315 F.Supp. 309, 310 (W.D.Wash.1970); Pennsylvania Environmental Council, Inc. v. Bartlett, 315 F.Supp. 238, 252 (M.D.Pa.1970); C. J. Montag and Sons, Inc. v. O’Leary, 304 F.Supp. 188, 189 (D.Ore.1969), and, because of its obvious relevance to the present dispute, will guide further consideration of the Chattahoochee River. No meaningful argument can" }, { "docid": "23598028", "title": "", "text": "1965. Pub.L. No. 89-298 § 301, 79 Stat. 1089,1091. . Rivers & Harbors Act of 1962. Pub.L. No. 87-874, 76 Stat. 1173. . 49 TJ.S.C.A. § 1653(f). . See Thompson v. Fugate, 347 F.Supp. 120 (E.D.Va.1972), where it was held that a project for the construction of a circumferential highway around Richmond, Virginia, could not be split up into separate segments for the purpose of assessing environmental impact, but that the entire 75-mile beltway project had to be considered as a whole. . See Note 2. . Also, Environmental Defense Fund v. Corps, 8th Cir., 470 F.2d 289 at 301, and Ragland v. Mueller, 5th Cir., 460 F.2d 1196. . Writing in June 1966 then Governor John Connally stated that the ■ Livingston Reservoir upon which construction had begun was designed to operate in connection with the Wallisville Project. (Ex. 8 to the Wallis-ville EIS) . Hearing of the Subcommittee of the House —Public Works for Water and Power Development and Atomic Energy Commission Appropriation Bill 1994 — Part 2, p. 1567. . Id. . Id. p. 1808. . Id. pp. 1565-1566, 1587-1589. . Senate Subcommittee Hearings — Part 2, pp. 1491-1750, specifically pages 1495, 1542-43, and 1620-1624. . Part 6 — House Subcommittee — pp. 998-1018 as to Wallisville, and pp. 1095-1119 as to Trinity, and Part 6 — Senate Subcommittee — pp. 7233-7261 as to Wallisville, and pp. 7310-7408 as to Trinity. . Report No. 93-327, p. 36. 93rd Congress, 1st Session. . Senate Hearings — Part 7, pp. 7558-7817. . Id. p. 7768. . Senate Report No. 93-338, pp. 24-26. . House Report No. 93-409, July 26, 1973. . Public Law 93-97 — -93rd Congress, H.R. 8947, August 16, 1973. . See Note 2. . See Hearings before tlie Subcommittee on Appropriations, U.S. Senate, 91st Congress, First Session — Appropriations for 1970. H.R.14159 pp. 517-522. . Federal Register. Yol. 39, No. 68 — Monday, April 8, 1974. Part 209 — Administrative Procedure. . The interest rate formula is now governed by the Water Resources Development Act— Public Law 93-251, 93rd Congress, H.R. 10203, March 7, 1974, Sec." }, { "docid": "10229972", "title": "", "text": "the conclusion for a number of reasons hereinafter stated that the answer to the question must be “no” and that plaintiff’s complaints must be dismissed. The plaintiff relator, Robert W. Matt-son, commenced these two actions in the name of the United States of America to his use on August 17, 1970, alleging violations of the River and Harbor or Refuse Act of 1899, 33 U.S.C. §§ 407, 411, 413. He claims standing to initiate proceedings to enforce that statute by virtue of the doctrine of qui tam, based on Section 411 of the Act. Defendants have moved for dismissal under Rule 12(b) of the Federal Rules of Civil Procedure for failure to state a claim, for absence of subject matter jurisdiction and further on the grounds that plaintiff Mattson is not a real-party-in-interest and is thus without capacity to sue under Rule 17(a). The actions were consolidated for the purpose of a hearing on these motions, following which' “MECCA” (Minnesota Environmental Control Citizens Association) sought permission to participate as amicus curiae on the issue of standing. The court granted such permission. MECCA and all the parties since have filed exhaustive and well written briefs. In addition the court has had the oppor tunity to study the Congressional Committee Print of “Qui Tam Actions and the 1899 Refuse Act: Citizen Lawsuits Against Polluters of the Nation’s Waterways,” House Committee on Government Operations, Subcommittee on Conservation and Natural Resources, September, 1970, 91st Congress, 2d Session. Generally speaking, the Refuse Act prohibits the discharge of “refuse matter of any kind or description whatever” into the navigable waters of the United States without an appropriate permit from the Army Corp of Engineers. Defendants each operate and maintain paper mills in Minnesota and are located on or near and discharge their effluent into the St. Louis River which flows into Lake Superior at or near Duluth, Minnesota. The plaintiff relator contends that the provision for the payment of one-half of any fine assessed to any private citizen whose information leads to the conviction has the effect of conferring upon that citizen standing to initiate proceedings" }, { "docid": "23110181", "title": "", "text": "1899: New Tasks for an Old Law, 22 Hastings L. J. 782 (1971), while others use it to refer to the entire Rivers and Harbors Act of 1899, see, e. g., Rodgers, Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U. Pa. L. Rev. 761, 766 (1971). It has been suggested that since § 13 prohibits the “discharge, or deposit” of refuse but authorizes the Secretary to permit only “the deposit” of refuse, it may be appropriate to distinguish between a “discharge” and a “deposit” and hold that only a “deposit” of refuse may be permitted by the Secretary. Hearings before the Subcommittee on the Environment of the Senate Committee on Commerce, 92d Cong., 1st Sess., 31 (1971). However, we find no support for such a distinction in either the Act itself or its legislative history. The Secretary’s authority to issue permits under, § 13 terminated on October 18, 1972. See n. 2, supra. 62 Stat. 1155, as amended, Act of July 17, 1952, c. 927, 66 Stat. 755; Water Pollution Control Act Amendments of 1956, 70 Stat. 498; Federal Water Pollution Control Act Amendments of 1961, Pub. L. 87-88, 75 Stat. 204; Water Quality Act of 1965, Pub. L. 89-234, 79 Stat. 903; Clean Water Restoration Act of 1966, Pub. L. 89-753, 80 Stat. 1246; Water Quality Improvement Act of 1970, Pub. L. 91-224, 84 Stat. 91. On December 23, 1970, the President announced the establishment of a formal § 13 permit program. Executive Order 11574, 35 Fed. Reg. 19627 (Dec. 25, 1970). The Corps of Engineers followed on December 30, 1970, with proposed regulations. 35 Fed. Reg. 20005 (Dec. 31, 1970). Final regulations implementing the President’s program became effective April 7, 1971. 33 CFR §209.131 (1972). That program, with certain changes, has now become part of the new permit program authorized by § 402 of the Federal Water Pollution Control Act Amendments of 1972. See n. 2, supra. This part of the Court of Appeals’ decision is not before us for review. See Brennan v. Arnheim & Neely, 410 U. S. 512," }, { "docid": "15679266", "title": "", "text": "Plaintiff has alleged violations by all Defendants of the provisions of Sections 401-413 of Title 33 in connection with certain dredge and fill operations in navigable waters adjacent to the Gulf of Mexico in Collier County, Florida. Consideration will be given here only to allegations concerning provisions of Sections 407 and 411, since the provisions of the other sections do not come within the qui tam theory. Section 407, in general, prohibits the discharge of “refuse matter” into the navigable waters of the United States without a permit from the Army Corps of Engineers. Section 411 provides that violators of Sections 407, 408 and 409 are guilty of a misdemeanor, and on conviction shall be punished by a fine not exceeding $2500.00 nor less than $500.00, or by imprisonment. This section also provides that one-half of said fine is to be paid to the person or persons giving information which shall lead to conviction. “Qui tam” is an abbreviation of the Latin phrase qui tam pro domino rege quam pro si ipso in hac parte sequitur, translated in Osborne’s Concise Law Dictionary (5th ed.) as “Who sues on behalf of the King as well as for himself.” It is an action brought by an informer on behalf of the government to seek civil penalties for violation of a statute. Apparently, the current popularity of the qui tam action was induced by a statement in a Congressional pamphlet entitled “Our Waters and Wetlands: How the Corps of Engineers Can Help Prevent Their Destruction and Pollution,” prepared by the House Committee on Government Operations, House Report No. 91-917, 91st Cong., 2d Sess. At page 17 of this report the following statement is made: The law further specifies that “one-half of said fine” shall be “paid to the person or persons giving information which shall lead to conviction.” This provision buttresses the Corps’ efficacy in carrying out the Refuse Act in two ways: (a) * * * (b) The Supreme Court has ruled that where a statute provides for a reward to the informer, the statute authorizes him, if the Government has not" }, { "docid": "10229973", "title": "", "text": "standing. The court granted such permission. MECCA and all the parties since have filed exhaustive and well written briefs. In addition the court has had the oppor tunity to study the Congressional Committee Print of “Qui Tam Actions and the 1899 Refuse Act: Citizen Lawsuits Against Polluters of the Nation’s Waterways,” House Committee on Government Operations, Subcommittee on Conservation and Natural Resources, September, 1970, 91st Congress, 2d Session. Generally speaking, the Refuse Act prohibits the discharge of “refuse matter of any kind or description whatever” into the navigable waters of the United States without an appropriate permit from the Army Corp of Engineers. Defendants each operate and maintain paper mills in Minnesota and are located on or near and discharge their effluent into the St. Louis River which flows into Lake Superior at or near Duluth, Minnesota. The plaintiff relator contends that the provision for the payment of one-half of any fine assessed to any private citizen whose information leads to the conviction has the effect of conferring upon that citizen standing to initiate proceedings qui tarn where neither the United States Attorney, nor the Corps of Engineers, nor the Justice Department has prosecuted or taken action. In effect what the court here is asked to do is to attempt to discern what the intent of Congress was when it passed the Refuse and River and Harbor Act of 1899, or perhaps more realistically what its intent would have been had it focused upon or been presented with the problem sub judice. Plaintiff argues that qui tam has its roots deep in the bowels of the English law and Congress must have known this when it provided the “moiety” to the informer; it knew that qui tam actions were rife in England centuries ago and continuing up to the enactment date of 1899. Counsel for plaintiff and for MECCA have cited favorable and lengthy excerpts from Holds-worth, A History of the English Law, Radzinowicz, A History of English Criminal Law and Its Administration From 1850, Vol. 2, Blackstone, “Commentaries” and Stephen, New Commentaries on the Laws of England. Conversely, defendants’" }, { "docid": "22918753", "title": "", "text": "States v. River Rouge Improvement Co., 1926, 269 U.S. 411, 46 S.Ct. 144, 70 L.Ed. 339 as limiting the power of the Federal Government over navigable waters to control for navigational purposes. Not surprisingly, the narrow view these eases take of the Commerce Clause is pre-United States v. Darby, 1941, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609. . Complete documentation of the concern over environmental problems would surely be voluminous, but it is indirectly evidenced by the amount of very recent legal activity. See National Environmental Policy Act of 1969. Pub.Law 91-190 (Jan. 1, 1970), infra note 24; Our Waters and Wetlands: How the Corps of Engineers Can Help Prevent Their Destruction and Pollution, H.Rep. 91-917, 91st Cong., 2d Sess, March 18, 1970, infra text at note 26; Executive Order 11507, Feb. 4, 1970, 38 L.W. 2436; United States v. Ray, 5 Cir., 1970, 423 F.2d 16 [Jan. 22, 1970] ; E. B. Elliott Advertising Co. v. Hill, 5 Cir., 1970, 425 F.2d 1141 [April 3, 1970] ; Citizens Committee for the Hudson Valley v. Volpe, S.D.N.Y., 1969, 302 F.Supp. 1083, aff’d, 2 Cir., 1970, 425 F.2d 97 [No. 428-33, April 16, 1970] ; National Advertising Co. v. Monterey, Calif., 1970, 1 Cal.3d 875, 83 Cal.Rptr. 577, 464 P.2d 33 [Jan. 30, 1970] ; MacGibbon v. Duxbury Board of Appeals, Mass., 1970, 255 N.E.2d 347 [Jan. 29, 1970] ; California v. SS Bournemouth, C.D.Cal., 1969, 307 F.Supp. 922; Creation of ABA Special Committee on Environmental Quality, 15 Am.Bar News No. 3, March 1970. . 43 U.S.C.A. § 1301 et seq. See Continental Oil Co. v. London Steamship Owners’ Mut. Ins. Ass’n., 5 Cir., 1969, 417 F. 2d 1030, A.M.C., cert. denied, 1970, 397 U.S. 911, 90 S.Ct. 911, 25 L.Ed.2d 92, A.M.C.; Atlantis Development Corp. v. United States, 5 Cir., 1967, 379 F.2d 818. . The relinquishing provision states, 43 U.S.C.A. § 1311(a) and (b) : “(a) It is determined and declared to be in the public interest that (1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and" }, { "docid": "22918747", "title": "", "text": "effective operation of the Interdepartmental Memorandum of Understanding, the Interior Department and the Committee concluded that it was not necessary to provide for dual permits from Interior and Army. The intent of the three branches has been unequivocally expressed: The Secretary must weigh the effect a dredge and fill project will have on conservation before he issues a permit lifting the Congressional ban.. The parallel of momentum as the three branches shape a national policy gets added impetus from the National Environmental Policy Act of 1969, Public Law 91-190, 42 U.S.C.A. §§ 4331-4347. This Act essentially states that every federal agency shall consider ecological factors when dealing with activities which may have an impact on man’s environment. Although this Congressional command was not in existence at the time the permit in question was denied, the correctness of that decision must be determined by the applicable standards of today. The national policy is set forth in plain terms in § 101 and the disclaimer of § 104(3) neither affects it nor the duty of all departments to consider, consult, collaborate and conclude. For we hold that while it is still the action of the Secretary of the Army on the recommendation of the Chief of Engineers, the Army must consult with, consider and receive, and then evaluate the recommendations of all of these other agencies articulately on all these environmental factors. In rejecting a permit on non-navigational grounds, the Secretary of the Army does not abdicate his sole ultimate responsibility and authority. Rather in weighing the application, the Secretary of the Army is acting under a Congressional mandate to collaborate and consider all of these factors. To judge the ebb and flow of the national tide, he can look to the Report of the House Committee on Government Operations. Although this perhaps lacks traditional standing of legislative history, it certainly has relevance somewhat comparable to an Executive Commission Report. On March 17, 1970, it approved and adopted a Report, based on a study made by its Conservation and Natural Resources Subcommittee, entitled Our Waters and Wetlands: How the Corps of Engineers" }, { "docid": "604730", "title": "", "text": "and salt water marshes, bogs, swamps, and low-lying flats and flood plains containing moist soil conditions and supporting aquatic vegetation. The value of these areas varies from place to place, but it is generally agreed that wetlands are a priceless, multi-use resource, and that in addition to their economic value, they perform many biological services including: (1) high yield food source for aquatic animals; (2) spawning and nursery areas for commercial and sport fish; (3) natural treatment of waterborne and airborne pollutants; (4) recharging ground water for water supplies; (5) natural protection from floods and storms; and (6) essential nesting and wintering areas for water fowl. However, because these areas interface with dry land, they also provide attractive sites on which to build and farm. The public interest in long term ecological and economic productivity often conflicts with short term economic gain; moreover, disregarding the long term effects may cause irreversible environmental destruction. Caplin, Is Congress Protecting Our Water? The Controversy over Section 404, Federal Water Pollution Control Act Amendments of 1972, 31 U.Miami L.Rev. 445, 455-6 (1977). See also United States v. Holland, 373 F.Supp. 665, 675 (M.D.Fla.1974). . See the comments accompanying the new 1977 regulations: Wetlands. Prior to enactment of the FWPCA, the mean tide line (mean higher tide line on the West Coast) was used to delineate the shoreward extent of jurisdiction over the regulation of most activities in tidal waters under the 1899 Act as well as for mapping, delineation of property boundaries, and other related purposes. In freshwater lakes, rivers and streams that are navigable waters of the United States, the landward limit of jurisdiction has been traditionally established at the ordinary high water mark. The regulation of activities that cause water pollution cannot rely on these artificial lines, however, but must focus on all waters that together form the entire aquatic system. Water moves in hydrologic cycles, and the pollution of this part of the aquatic system, regardless of whether it is above or below an ordinary high water mark, or mean high tide line, will affect the water quality of the other" }, { "docid": "23598029", "title": "", "text": "Id. p. 1808. . Id. pp. 1565-1566, 1587-1589. . Senate Subcommittee Hearings — Part 2, pp. 1491-1750, specifically pages 1495, 1542-43, and 1620-1624. . Part 6 — House Subcommittee — pp. 998-1018 as to Wallisville, and pp. 1095-1119 as to Trinity, and Part 6 — Senate Subcommittee — pp. 7233-7261 as to Wallisville, and pp. 7310-7408 as to Trinity. . Report No. 93-327, p. 36. 93rd Congress, 1st Session. . Senate Hearings — Part 7, pp. 7558-7817. . Id. p. 7768. . Senate Report No. 93-338, pp. 24-26. . House Report No. 93-409, July 26, 1973. . Public Law 93-97 — -93rd Congress, H.R. 8947, August 16, 1973. . See Note 2. . See Hearings before tlie Subcommittee on Appropriations, U.S. Senate, 91st Congress, First Session — Appropriations for 1970. H.R.14159 pp. 517-522. . Federal Register. Yol. 39, No. 68 — Monday, April 8, 1974. Part 209 — Administrative Procedure. . The interest rate formula is now governed by the Water Resources Development Act— Public Law 93-251, 93rd Congress, H.R. 10203, March 7, 1974, Sec. 80, subsection (b), provides: “In the case of any project authorized before January 3, 1969, if the appropriate non-Federal interests have, prior to December 31, 1969, given satisfactory assurances to pay the required non-Federal share of project costs, the discount rate to be used in the computation of benefits and costs for such project shall be the rate in effect immediately prior to December 24, 1968, and that rate shall continue to be used for such project until construction has been completed, unless otherwise provided by a statute enacted after the date of enactment of this Act.” . Before the enactment of the Administrative Procedures Act, 5 U.S.C. Sec. 702 et seq., the Supreme Court had held that 33 U.S.C. Sec. 701a created no right to judicial review of the benefit-cost analysis it required. Oklahoma v. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487. . “Guidelines for Federal Agencies under the National Environmental Policy Act, 36 Fed.Reg. 7724, 7727 (1971) : ‘11. Application of section 102(2) (G) procedures to existing projects and" }, { "docid": "23110180", "title": "", "text": "passed a comprehensive piece of legislation providing for national water quality standards and for a federal permit program relating to the discharge of pollutants into navigable waters. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816. Section 402 of the 1972 Act, 33 U. S. C. § 1342, prohibits further issuance of permits under § 13 of the Rivers and Harbors Act of 1899 and designates the Administrator of the Environmental Protection Agency as the exclusive authority to permit discharges of pollutants into navigable waters. The refuse matters were identified as “iron, aluminum, and compounds containing these chemicals, and chlorides, phosphates, sulfates and solids.” App. 3. The Monongahela River is a 128-mile-long, navigable waterway that flows through western Pennsylvania and northern West Virginia. Section 13 is sometimes referred to as the “Refuse Act of 1899,” but that term is a post-1970 label not used by Congress, past or present. Moreover, some authors use the term to refer only to § 13, see, e. g., Note, The Refuse Act of 1899: New Tasks for an Old Law, 22 Hastings L. J. 782 (1971), while others use it to refer to the entire Rivers and Harbors Act of 1899, see, e. g., Rodgers, Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U. Pa. L. Rev. 761, 766 (1971). It has been suggested that since § 13 prohibits the “discharge, or deposit” of refuse but authorizes the Secretary to permit only “the deposit” of refuse, it may be appropriate to distinguish between a “discharge” and a “deposit” and hold that only a “deposit” of refuse may be permitted by the Secretary. Hearings before the Subcommittee on the Environment of the Senate Committee on Commerce, 92d Cong., 1st Sess., 31 (1971). However, we find no support for such a distinction in either the Act itself or its legislative history. The Secretary’s authority to issue permits under, § 13 terminated on October 18, 1972. See n. 2, supra. 62 Stat. 1155, as amended, Act of July 17, 1952, c. 927, 66 Stat. 755;" }, { "docid": "15679267", "title": "", "text": "sequitur, translated in Osborne’s Concise Law Dictionary (5th ed.) as “Who sues on behalf of the King as well as for himself.” It is an action brought by an informer on behalf of the government to seek civil penalties for violation of a statute. Apparently, the current popularity of the qui tam action was induced by a statement in a Congressional pamphlet entitled “Our Waters and Wetlands: How the Corps of Engineers Can Help Prevent Their Destruction and Pollution,” prepared by the House Committee on Government Operations, House Report No. 91-917, 91st Cong., 2d Sess. At page 17 of this report the following statement is made: The law further specifies that “one-half of said fine” shall be “paid to the person or persons giving information which shall lead to conviction.” This provision buttresses the Corps’ efficacy in carrying out the Refuse Act in two ways: (a) * * * (b) The Supreme Court has ruled that where a statute provides for a reward to the informer, the statute authorizes him, if the Government has not previously instituted a prosecution against the violator, to institute his own suit in the name of the United States (a qui tam action) to collect his moiety of the penalty. Such qui tam statutes, vesting in an informer the right to recover a moiety of a penalty for a violation in which he otherwise would have no financial interest, “have been in existence for hundreds of years in England, and in this country ever since the foundation of our Government.” By making the violator subject to action by private persons stimulated by the hope of a reward, such provisions help to insure against laxity by public officials in enforcing statutes effectuating important public policies. The cases cited for this proposition were: Francis v. United States, 72 U.S. (5 Wall.) 338, 18 L.Ed. 603 (1866); Adams, qui tam v. Woods, 6 U.S. (2 Cranch) 336, 2 L.Ed. 297 (1805); Marvin v. Trout, 199 U.S. 212, 26 S.Ct. 31, 50 L.Ed. 157 (1905); United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87" }, { "docid": "6342264", "title": "", "text": "proper proceedings to this end may be instituted under the direction of the Attorney General of the United States. . See Comment, Discharging New Wine into Old Wineskins: The Metamorphosis of the Rivers and Harbors Act of 1899, 33 Pitt.L.Rev. 483, 484-85, fn. 2 (1972); Rodgers, Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U.Pa.L.Rev. 761, 772-774 (1971); but now see Zabel v. Tabb, 5 Cir. 1970, 430 F.2d 199, 201, cert. denied, 1971, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808. . Cf. United States v. American Cyanamid Co., 2 Cir. 1973, 480 F.2d 1132, 1135; United States v. Esso Standard Oil Co. of Puerto Rico, 3 Cir. 1967, 375 F.2d 621, 623. The case law applying the so-called “Refuse Act,” Section 13 of the Rivers and Harbors Act, 33 U.S.C.A. § 407 (which prohibits the discharge of refuse into navigable waters) consistently treats those indirect discharges merely onto land or onto a non-navigable water but which in turn are likely to wash into navigable waters as violations of Section 13. This liberal reading of that statute’s scope has been specifically mandated by the Supreme Court for both Section 10 and Section 13 of the Rivers and Harbors Act: “We read the 1899 Act charitably in light of the purpose to be served. The philosophy of the statement of Mr. Justice Holmes in New Jersey v. New York, 283 U.S. 336, 342 [51 S.Ct. 478, 75 L.Ed. 1104], that ‘A river is more than an amenity, it is a treasure,’ forbids a narrow, cramped reading either of § 13 or of § 10.” United States v. Republic Steel Corp., 1960, 362 U.S. 482, 491, 80 S.Ct. 884, 890, 4 L.Ed.2d 903. . See Power, Federal Environmental Law, supra, 808-813, for a history of the exercise by the Corps of its “geographical scope of authority,” concluding about the vagueness and uncertainty of this: “The very nature of dredging techniques may solve some of the doubt. It would seem virtually impossible to cut a boat basin or canal without taking at least one bite" }, { "docid": "22918748", "title": "", "text": "to consider, consult, collaborate and conclude. For we hold that while it is still the action of the Secretary of the Army on the recommendation of the Chief of Engineers, the Army must consult with, consider and receive, and then evaluate the recommendations of all of these other agencies articulately on all these environmental factors. In rejecting a permit on non-navigational grounds, the Secretary of the Army does not abdicate his sole ultimate responsibility and authority. Rather in weighing the application, the Secretary of the Army is acting under a Congressional mandate to collaborate and consider all of these factors. To judge the ebb and flow of the national tide, he can look to the Report of the House Committee on Government Operations. Although this perhaps lacks traditional standing of legislative history, it certainly has relevance somewhat comparable to an Executive Commission Report. On March 17, 1970, it approved and adopted a Report, based on a study made by its Conservation and Natural Resources Subcommittee, entitled Our Waters and Wetlands: How the Corps of Engineers Can Help Prevent Their Destruction and Pollution. (H.Rep. No. 91-917, 91st Cong. 2d Sess. (1970)) The first section stifles any doubt as to how this part of Congress construes the Corps’ duty under the Rivers and Harbors Act. The section traces the historical interpretation of the Corps’ power under the Rivers and Harbors Act. It commends the Corps for recognizing ecological considerations under the Act to protect against unnecessary fills and cites the instant case. But following the temper of the times, the report by bold face black type cautions against any easy overconfidence and charges the Corps with ever-increasing vigilance. When the House Report and the National Environmental Policy Act of 1969 are considered together with the Fish and Wildlife Coordination Act and its interpretations, there is no doubt that the Secretary can refuse on conservation grounds to grant a permit under the Rivers and Harbors Act. V Due Process Landholders next contend that the denial of a permit without a hearing before the Fish and Wildlife Service is a deprivation of property without" } ]

[ { "docid": "9363385", "title": "", "text": "se and, alternatively, abused its discretion when it refused to grant him a continuance. Second, he asserts that the court erred in refusing to suppress the statements he made to the Alcoholics Anonymous workers the night of his arrest. Third, he maintains that the .trial judge erroneously admitted into evidence the statements he made to Detective Benish on December 1, 1995. Fourth, he claims that the district court erroneously admitted .into evidence items seized from his apartment building on December 1, 1995. Fifth, he contends that the court erroneously failed, to depart downward from the United States Sentencing Guidelines because of his advanced age, poor physical condition, and the extreme age of his criminal history (his prior convictions were in 1973 and 1986)., III. DISCUSSION A The Denial of Schwensow’s Request for a Continuance Initially, Schwensow contends that the district court violated the Speedy Trial Act, 18 U.S.C. § 3161(c)(2), by commencing trial less than thirty days after he decided to proceed pro se,' and abused its discretion when it refused to grant his last-minute request for a continuance. Schwensow’s failure to raise these issues before the district court renders our review limited to plain error. United States v. Wilson, 134 F.3d 855, 862 (7th Cir.1998). Even though Schwensow’s original trial date was set for February 20, 1996, he discharged his court-appointed attorney two weeks before trial and filed a motion requesting the appointment of new counsel. The court granted the motion, agreed to appoint another attorney, and postponed trial until the appointment had been made. On March 19, 1996, Schwensow’s new attorney filed a motion for adjournment of trial. The trial court granted the motion and reset the trial for April 15, 1996. On April 9, 1996, defense counsel filed a second motion for adjournment of trial. The court granted the motion and again postponed the trial until May 20, 1996. On May 9, 1996, defense counsel filed a third motion for adjournment of trial. Again, the court granted the motion and rescheduled the trial for August 5, 1996. On June 27, 1996, the court conducted the final pretrial" } ]

[ { "docid": "6658371", "title": "", "text": "that the government presented overwhelming evidence against Edwards regarding his sale of drugs on two occasions to an informant. Under these circumstances, even assuming a Confrontation Clause violation, any error is harmless beyond a reasonable doubt. Thus, we will affirm the judgment of the district court. III. CONCLUSION We affirm the judgment of the district court. AFFIRMED. . Edwards' original Motion for Protection of Trial Dates or in the Alternative Motion for Continuance stated that it sought to protect the dates of July 8 to August 8, 1998. Subsequently, at a status conference held June 17, 1998, Edwards’ counsel clarified that he only sought protection beginning July 18, 1998. . Neither Darby nor Mers address the issue Edwards presents in this case. . The government also asserts that Edwards waived any claim that he suffered prejudice from the district court's failure to comply with section 3161(c)(2) because he did not object in the district court to the commencement of trial on the twenty-ninth day or seek a continuance to prepare for trial. See United States v. Schwensow, 151 F.3d 650, 654 (7th Cir.1998), cert. denied, 525 U.S. 1059, 119 S.Ct. 626, 142 L.Ed.2d 565 (1998) (stating that review of speedy trial violation limited to plain error where defendant failed to raise issue before district court); Grosshans, 821 F.2d at 1253 (holding that defendant waived right to raise on appeal violation of Speedy Trial Act where claim not raised in district court); United States v. Ferguson, 776 F.2d 217, 221-22 (8th Cir.1985) (same). Because we find that Edwards has not shown .prejudice, it is not necessary to address this argument." }, { "docid": "6658365", "title": "", "text": "correct. Q: Were you advised of what the penalty is for being convicted a third time in federal court for ... dealing drugs? A: Yes. Q: What were you told? [PROSECUTOR]: Objection. Relevance. THE COURT: Overruled. A: It was a penalty carry a life sentence. [BY EDWARDS’ COUNSEL]: Q: And that is life without parole, is that not true? A: That’s correct.... Q: Would it be fair to say that you would prefer not to do a life sentence if you had the option not to do a life sentence? ... A: No, I wouldn’t want to do a life sentence, no.... Q: When was the first time you were spoken to by anybody from law enforcement? A: ... Monday of last week, it was.... Q: Okay. Was that after you entered into a plea agreement? A: Yes. Q: That was after you knew you were facing [a] mandatory life sentence? A: Yes. Q: And you were — were you told that this was your only out from under a life sentence would be to enter a plea agreement and agree to testify for the Government. [PROSECUTOR]: Your Honor, objection. THE COURT: Sustained. R2-35-36, 39-40. The prosecutor did not state its basis for the objection, and the defense did not proffer grounds for admissibility. II. DISCUSSION A 18 U.S.C. § 8161(c)(2) Edwards asserts that his trial began in violation of the Speedy Trial Act because only twenty-nine days passed between his initial appearance and the start of his trial. Pursuant to the Speedy Trial Act, a criminal trial should not begin “less than thirty days from the date on which the defendant first appears.” 18 U.S.C. § 3161(c)(2). The government concedes that it violated section 3161(c)(2). Edwards asserts that such a per se violation of 3161(c)(2) entitles him to a new trial. See United States v. Darby, 744 F.2d 1508, 1520 (11th Cir.1984) (applying “literal construction” of section 3161(c)(2) in determining starting point for thirty day period in affirming district court’s denial of motion for continuance where counsel was changed); United States v. Mers, 701 F.2d 1321, 1331-35 (11th Cir.1983)" }, { "docid": "6658363", "title": "", "text": "signed by Kenny Eason, a witness who testified against Edwards. Because any such alleged error would be harmless beyond a reasonable doubt, we will affirm the judgment of the district court. I. BACKGROUND On May 14, 1998, a federal grand jury of the United States District Court for the Middle District of Florida, Tampa Division, returned an indictment charging Daryl Edwards and Kenny Eason with conspiracy to distribute cocaine base (“crack co caine”) in violation of 21 U.S.C. § 846 and distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Eason pled guilty to the conspiracy count. On June 8, 1998, Edwards was arrested, made an initial appearance with counsel and was arraigned before a magistrate judge. Edwards’ counsel sought to protect the trial dates of July 18 to August 8, 1998, due to long standing vacation plans. The district court granted Edwards’ motion for protection and ordered that the case would remain on the trial calendar for July. Edwards did not object to the disposition of the motion. Edwards’ trial began on July 7, 1998 and Edwards’ counsel indicated that he was ready to proceed. After a two-day trial, Edwards was convicted on both counts in the indictment. The district court sentenced Edwards to life imprisonment. At trial, the government presented evidence that Edwards sold drugs on two occasions to an informant. Edwards acknowledged his involvement and presented evidence that he too was acting as a government informant. The government did not dispute that Edwards acted as an informant, but asserted that Edwards was not acting as an informant on these two occasions. The government’s chief witness, Kenny Eason, testified that he bought the drugs from Edwards. Eason testified pursuant to a plea agreement in which he agreed to cooperate. At the time of his testimony, Eason had not been sentenced. During the cross-examination of Eason, the following exchange took place: Q: What is your understanding of the penalty that you were facing as a, what, you told us a two-time drug loser? You got two prior convictions for drugs? A: That’s" }, { "docid": "12635243", "title": "", "text": "the untimely commencement of trial in order to obtain a new trial. Cf. United States v. Anderton, 752 F.2d 1005, 1008 (5th Cir.1985) (holding that a defendant must show prejudice in order to win reversal of a conviction for a violation of section 3161(j)). Defendant has not met this burden. She did not raise the Speedy Trial Act claim before the District Court. The Court of Appeals for the Eighth Circuit has held that where a defendant failed to raise the claim of violation of the thirty-day requirement at the trial level the defendant effectively waived the right to raise it on appeal. See United States v. Ferguson, 776 F.2d 217, 221-22 (8th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986). We agree. Had defendant raised the statutory violation, there is no reason to believe that the District Court would not have corrected any error. Defendant had several months in which to prepare her case. The pretrial proceedings and the trial itself were repeatedly postponed due to her refusal to obtain an attorney and her insistence on representation by a layperson. Finally, defendant has not claimed that she was in any way prejudiced by the commencement of trial on June 2. We hold that a new trial is not required in this case because there is no indication of prejudice. III. Defendant finally claims that the evidence of prior acts and wrongs allegedly committed by defendant was inadmissible because it was more prejudicial to defendant than probative. The evidence that she claims was inadmissible was evidence that she had attended “tax protestor” meetings and that she had attempted to satisfy financial obligations with two “Public Office Money Certificates.” Defendant claims that this evidence was admitted to prove propensity to commit the crimes with which she was charged, not to prove intent as the government claimed. Defendant must establish that the admission of the evidence was plain error because she failed to object at the time of admission. Fed.R.Crim.P. 52(b). We find that it was not error for the District Court to admit the evidence. To" }, { "docid": "6658370", "title": "", "text": "Sixth Amendment Confrontation Clause violations are subject to the harmless error standard. See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (stating that “[t]he correct inquiry is whether, assuming the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt”). The record shows that on direct examination, Eason testified that he had previously been convicted twice for selling cocaine, that he pled guilty to conspiracy to distribute cocaine and that he was testifying at trial pursuant to a plea agreement with the United States with the expectation that his sentence would be reduced. R2-9-10. On cross-examination, Eason testified that he faced a life sentence without the possibility of parole for his involvement in the conspiracy and that he did not want to be incarcerated for the rest of his life. R2-35-36. Thus, the cross-examination exposed Eason’s motive for testifying and was sufficient to permit the jury to judge Eason’s credibility. In addition, the record shows that the government presented overwhelming evidence against Edwards regarding his sale of drugs on two occasions to an informant. Under these circumstances, even assuming a Confrontation Clause violation, any error is harmless beyond a reasonable doubt. Thus, we will affirm the judgment of the district court. III. CONCLUSION We affirm the judgment of the district court. AFFIRMED. . Edwards' original Motion for Protection of Trial Dates or in the Alternative Motion for Continuance stated that it sought to protect the dates of July 8 to August 8, 1998. Subsequently, at a status conference held June 17, 1998, Edwards’ counsel clarified that he only sought protection beginning July 18, 1998. . Neither Darby nor Mers address the issue Edwards presents in this case. . The government also asserts that Edwards waived any claim that he suffered prejudice from the district court's failure to comply with section 3161(c)(2) because he did not object in the district court to the commencement of trial on the twenty-ninth day or seek a continuance to prepare for trial. See United States" }, { "docid": "6658362", "title": "", "text": "BECHTLE, Senior District Judge: Daryl Edwards was indicted and charged in a two count indictment with conspiracy to distribute drugs in violation of 21 U.S.C. § 846 and drug distribution in violation of and 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Edwards was arrested on June 8, 1998 and, on the same day, made his initial appearance before a magistrate judge in the United States District Court for the Middle District of Florida. Edwards’ trial began on July 7, 1998. Edwards was convicted and sentenced to life imprisonment. Edwards contends that his trial was held on the twenty-ninth day after his initial appearance with counsel and arraignment on the indictment (held simultaneously) in violation of 18 U.S.C. § 3161(e)(2), thus warranting a new trial. Because Edwards does not show prejudice stemming from the timing of his trial, we will affirm the judgment of the district court. Edwards also contends that he was denied his right to effective cross-examination when the district court did not permit defense counsel to inquire regarding a plea agreement signed by Kenny Eason, a witness who testified against Edwards. Because any such alleged error would be harmless beyond a reasonable doubt, we will affirm the judgment of the district court. I. BACKGROUND On May 14, 1998, a federal grand jury of the United States District Court for the Middle District of Florida, Tampa Division, returned an indictment charging Daryl Edwards and Kenny Eason with conspiracy to distribute cocaine base (“crack co caine”) in violation of 21 U.S.C. § 846 and distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Eason pled guilty to the conspiracy count. On June 8, 1998, Edwards was arrested, made an initial appearance with counsel and was arraigned before a magistrate judge. Edwards’ counsel sought to protect the trial dates of July 18 to August 8, 1998, due to long standing vacation plans. The district court granted Edwards’ motion for protection and ordered that the case would remain on the trial calendar for July. Edwards did not object to the disposition of the" }, { "docid": "20879536", "title": "", "text": "of a government investigation into a major drug distribution conspiracy should anticipate future legal action. Because we find that Butz and Boone did not establish actual prejudice, we need not address the second prong of the pre-indictment delay test. See Gonzalez-Sandoval, 894 F.2d at 1051. The district court did not abuse its discretion in denying the motion to dismiss. II. Speedy Trial Act We review the district court’s factual findings concerning speedy trial violations for clear error and questions of law concerning application of the Speedy Trial Act de novo. United States v. Nash, 946 F.2d 679, 680 (9th Cir.1991). We reject the argument that because Butz did not move for a continuance, one granted to several codefendants should not toll his speedy trial time. The Act’s requirement that a trial commence within the relevant 70-day period may be extended only by the excludable time provisions of 18 U.S.C. § 3161(h). Ex-cludable time includes delay resulting from a grant of continuance. A court may grant one if it finds that the “ends of justice” so require. 18 U.S.C. § 3161(h)(8)(A). We reverse a district court’s finding of an “ends of justice” exception only for clear error. United States v. Murray, 771 F.2d 1324, 1327 (9th Cir.1985). We have upheld the exclusion of time for a continuance to allow defense counsel time to prepare motions. See United States v. Henderson, 746 F.2d 619, 624 (9th Cir.1984), aff'd, 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986). We have not, however, considered directly whether delay from a grant of continuance to one defendant is excludable time for a codefendant. The Act specifically addresses the application of exclusions to multiple defendant cases such as this. Section 3161(h)(7) provides that a court shall exclude a reasonable period of delay “when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.” Every circuit to consider this section has concluded that “an exclusion to one defendant applies to all co-defendants.” United States v. Edwards, 627 F.2d 460, 461" }, { "docid": "6658368", "title": "", "text": "821 F.2d at 1252-53. We adopt the reasoning of the Fifth and Sixth Circuits and hold that a defendant must show prejudice in order to receive a new trial following a violation of 18 U.S.C. § 3161(c)(2). In this instance, the record shows that Edwards suffered no prejudice that hampered his ability to prepare for trial. Indeed, in his motion for protection of trial dates, Edwards’ counsel indicated he was “available for trial the first week of July” 1998 and sought a continuance of the trial only because a trial would interfere with his long standing vacation plans. Rl-20. At the June 17, 1998 status conference, Edwards’ counsel indicated that he had already received discovery and a proposed plea agreement from the United States, had reviewed those documents with Edwards and was awaiting Edwards’ instructions concerning the plea agreement. 1SR1-2-3. When the court decided to leave Edwards’ case on the trial calendar during the period of July 1 to 18, Edwards’ counsel acquiesced in the court’s decision. Lastly, when the district court called the case for trial on July 8, Edwards’ counsel announced that he was ready to proceed. 1SR3-2. Under these circumstances, the record shows that Edwards did not suffer any prejudice as a result of the district court’s failure to afford him an extra day of trial preparation as required by the Speedy Trial Act. Thus, we will affirm the judgment of the district court. B. Right to Effective Cross-Examination Edwards asserts that he was denied his Sixth Amendment right to confront the witnesses against him when the district court did not permit defense counsel to inquire regarding Eason’s plea agreement. The Sixth Amendment guarantees criminal defendants the right to confront the witnesses against them. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). When a witness testifies pursuant to a plea agreement, he is subject to cross-examination about the benefits he expects to receive as well as his obligations under its terms. See Mills v. Singletary, 161 F.3d 1273, 1288-89 (11th Cir.1998); United States v. Taylor, 17 F.3d 333, 340-41 (11th Cir.1994)." }, { "docid": "22976768", "title": "", "text": "check made out in Grubich’s name was issued on April 12, 1994, and according to standard practice at Republic Claims the check would have been mailed from its Arizona office on April 12 or 13, 1994. Grubich would not have received the check in the mail in Ohio before April 14, 1999, and the Indictment was filed on April 14, 1999. Because Grubich, as charged in the Indictment, knowingly caused the check to be delivered by mail and also received the check in the mail within five years of the filing of the Indictment, her conviction of Count 4 is not barred by the statute of limitations. 2. Speedy Trial Act Grubich also argues that her convictions should be reversed because she first appeared through counsel at her arraignment on May 13, 1999, and her trial began on June 7, 1999, in violation of the Speedy Trial Act. As discussed above, a defendant is entitled to a thirty-day waiting period after she “first appears through counsel” until she is tried. See 18 U.S.C. § 3161(c)(2). Because Grubich did not have thirty days between her first appearance through counsel and her trial, the district court violated the Speedy Trial Act in commencing her trial on June 7, 1999. The Speedy Trial Act does not provide a sanction for violations of its thirty-day waiting period. We have held, however, that a “defendant must demonstrate that she was prejudiced by the untimely commencement of trial in order to obtain a new trial.” United States v. Grosshans, 821 F.2d 1247, 1253 (6th Cir.), cert. denied, 484 U.S. 987, 108 S.Ct. 506, 98 L.Ed.2d 505 (1987). In Grosshans, the court stated that when a defendant fails to raise a Speedy Trial Act claim before the district court, she effectively waives it because “[h]ad defendant raised the statutory violation, there is no reason to believe that the District Court would not have corrected any error.” Id. The defendant in Gros-shans did not present a Speedy Trial Act objection to the district court and had several months to prepare for trial. The court concluded that the defendant" }, { "docid": "6658367", "title": "", "text": "(holding that section 3161(c)(2) in no way requires that time otherwise excludable in determining delay under Speedy Trial Act should not be excluded if it occurs in first thirty day interval). See also United States v. Daly, 716 F.2d 1499, 1506 (9th Cir.1983) (stating that “any pretrial preparation shorter than thirty days is inadequate per se”). The United States Court of Appeals for the Fifth and Sixth Circuits have held that defendants must show prejudice in order to receive a new trial under section 3161(c)(2). See United States v. Cisneros, 112 F.3d 1272, 1277 (5th Cir.1997) (stating prejudice requirement); United States v. Storm, 36 F.3d 1289, 1294 (5th Cir.1994) (same); United States v. Marroquin, 885 F.2d 1240, 1245 (5th Cir.1989) (same); United States v. Grosshans, 821 F.2d 1247, 1252-53 (6th Cir.1987) (same). The rationale for the prejudice requirement is that because Congress failed to provide a sanction for the violation of section 3161(c)(2), a defendant must show that he was prejudiced by such violation. Storm, 36 F.3d at 1294;, Marroquin, 885 F.2d at 1245; Grosshans, 821 F.2d at 1252-53. We adopt the reasoning of the Fifth and Sixth Circuits and hold that a defendant must show prejudice in order to receive a new trial following a violation of 18 U.S.C. § 3161(c)(2). In this instance, the record shows that Edwards suffered no prejudice that hampered his ability to prepare for trial. Indeed, in his motion for protection of trial dates, Edwards’ counsel indicated he was “available for trial the first week of July” 1998 and sought a continuance of the trial only because a trial would interfere with his long standing vacation plans. Rl-20. At the June 17, 1998 status conference, Edwards’ counsel indicated that he had already received discovery and a proposed plea agreement from the United States, had reviewed those documents with Edwards and was awaiting Edwards’ instructions concerning the plea agreement. 1SR1-2-3. When the court decided to leave Edwards’ case on the trial calendar during the period of July 1 to 18, Edwards’ counsel acquiesced in the court’s decision. Lastly, when the district court called the case" }, { "docid": "11781209", "title": "", "text": "is protected by the clearly erroneous rule. A defendant’s actions and words may constitute a waiver of Miranda rights, even absent an explicit statement as to waiver. Butler, 441 U.S. at 373, 99 S.Ct. at 1757. Further, we have in the past read a district court opinion as an implicit finding of Miranda waiver where the opinion in question was not explicit on the issue. See United States v. Hall, 724 F.2d 1055, 1060 (2d Cir.1983). In this case, however, we believe it better to have Judge Kram make an explicit finding as to whether Matsushita adequately waived his Miranda rights after his formal arrest at Secret Service headquarters. 3. Speedy Trial The Speedy Trial Act, 18 U.S.C. §§ 3161-3174, requires that a defendant’s trial begin within seventy days of the indictment or first appearance before a judicial officer, whichever is later. 18 U.S.C. § 3161(c)(1). The Act provides for the exclusion of certain periods from computation of the seventy day limit. Id. § 3161(h)(l)-(8). Defendant made several pretrial motions to dismiss for speedy trial violations, all of which were denied by Judge Kram. The pretrial period in this case was unusually long for a single-defendant case— nearly two years. The speedy trial clock began to run on August 18, 1983, when Matsushita pled not guilty to the charges in the August 9 indictment. Although trial did not begin until June 10, 1985, none of the nearly fourteen months between April 17, 1984, and the start of trial are challenged on this appeal. This period evidently was consumed by what Judge Kram characterized as a “continuous stream” of motions by the defendant and was excluda-ble under Section 3161(h)(1)(F). Rather, Matsushita's speedy trial claims are focused solely on the period from August 18, 1983 to April 17, 1984, the date that a report on defendant’s competency was filed with the court. The first pretrial conference took place on September 22, 1983. Prior to that time, thirty-four non-excludable days (August 19-September 21) had passed. At that conference, counsel for defendant and for the government discussed the schedule for submitting motions. Defense counsel" }, { "docid": "2164215", "title": "", "text": "way denied the defendant a fair trial. See United States v. Davis, 15 F.3d 1393, 1401 (7th Cir.), cert. denied, 513 U.S. 896, 115 S.Ct. 250, 130 L.Ed.2d 171 (1994). We conclude that there was no plain error in the prosecutor’s conduct or remark. See Alexander, 163 F.3d at 429-30. 6. Pre-Trial Issues In the issues discussed above, we have upheld the district court’s trial rulings after reviewing Mr. Griffin’s sweeping challenges to the sufficiency of the evidence against him and the court’s evidentiary determinations. We now turn to two pretrial issues Mr. Griffin raised that can be considered in short order. (a) Speedy Trial Act Mr. Griffin contends for the first time on appeal that his trial did not begin within the 70 days required by the Speedy Trial Act under 18 U.S.C. § 3161(c). The district court granted the Government’s motion for a continuance because the prosecutor had another trial scheduled to begin that day. The court moved the trial date from March 2, 1998, to April 22, 1998, 51 days later. According to the defendant, the interests of justice did not outweigh Griffin’s interest in a speedy trial. Because Mr. Griffin failed to raise this issue in the district court by moving for dismissal of the indictment on speedy trial grounds, he has forfeited the claim on appeal. We can reverse the district court only if it was plain error for the court to have tolled the speedy trial clock because of the prosecutor’s scheduling conflict. See United States v. Baker, 40 F.3d 154, 159 (7th Cir.1994), cert. denied, 514 U.S. 1028, 115 S.Ct. 1383, 131 L.Ed.2d 237 (1995). The Speedy Trial Act requires that a defendant’s trial begin within 70 days of the filing of the information or indictment unless certain excludable periods exist. See 18 U.S.C. § 3161(c)(1), (h). In this case, the district court granted a continuance based on § 3161(h)(8)(A), which authorizes the exclusion of time when the court finds that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy" }, { "docid": "22258577", "title": "", "text": "Henderson, 746 F.2d 619, 622 (9th Cir.1984), cert. granted, — U.S.-, 106 S.Ct. 225, 88 L.Ed.2d 224 (1985). Questions of law concerning the Act are reviewed de novo. Id. A. Trial Court’s Sua Sponte Dismissals. If an indictment is dismissed on the defendant’s motion, and the defendant is later reindicted for the same offense, the Act’s seventy day “clock” begins anew. 18 U.S.C. § 3161(d)(1). However, if a government motion prompts dismissal of the indictment, and the defendant is later rein-dicted for the same offense, the original seventy day period is tolled only for the period between dismissal and reindictment or rearraignment, whichever is later. 18 U.S.C. § 3161(h)(6). Here, the two dismissals without prejudice were on the district court’s own motion. Neither the plain words of the Act nor any present case law indicate the effect of a sua sponte dismissal on the seventy day clock. Feldman relies on United States v. Dennis, 625 F.2d 782 (8th Cir.1980) and United States v. Harris, 724 F.2d 1452 (9th Cir. 1984). Neither case is on point. In Dennis, the court dismissed one count sua sponte, then granted a continuance to allow the government to consider an appeal. Subsequently, the grand jury reindicted Dennis who claimed that, for speedy trial purposes, the seventy days began on the first indictment. The Eighth Circuit concluded that the district court properly decided that the ends of justice served by the continuance outweighed Dennis’ speedy trial interests, and that, therefore, the period of delay resulting from the continuance was excludable. 625 F.2d at 794. See 18 U.S:C. § 3161(h)(8)(A). The court did not address whether the sua sponte dismissal tolled or reset the speedy trial clock. In Harris, the defendant sought dismissal with prejudice of a pending prior indictment after arraignment on a superseding indictment. The panel affirmed the granting of the government’s request to dismiss the prior indictment without prejudice but reversed on another speedy trial issue. 724 F.2d at 1454-55. Feldman asserts that Harris holds that a dismissal without prejudice is a government-initiated motion. While this was true in Harris because the government successfully" }, { "docid": "23361329", "title": "", "text": "Lugo’s motion to suppress on September 8, 1997. The government filed notice of a sentencing enhancement on October 20, 1997, and a jury trial commenced on October 21, 1997. On October 22, 1997, the jury found Mr. Lugo guilty on both counts of the indictment. On January 27, 1998, the district court sentenced Mr. Lugo to 120 months in prison and eight years of supervised release. Discussion A. Speedy Trial Mr. Lugo’s first argument on appeal is that he was denied his statutory and constitutional right to a speedy trial. We review de novo the district court’s compliance with the requirements of the Speedy Trial Act and the alleged constitutional violation of the right to a speedy trial. See United States v. Gomez, 67 F.3d 1515, 1519 (10th Cir.1995). We accept the district court’s factual findings unless clearly erroneous. See id. 1. Speedy Trial Act The Speedy Trial Act is designed to protect a defendant’s constitutional right to a speedy trial and serve the public interest of adjudicating criminal proceedings promptly. See United States v. Mora, 135 F.3d 1351, 1354 (10th Cir.1998). The Act requires that a criminal defendant’s trial commence within seventy days of the filing of the indictment or from the date the defendant first appears before a judicial officer of the court, whichever is later. See 18 U.S.C. § 3161(c)(1). Certain periods of delay are excluded and do not count as part of the seventy day limit. See 18 U.S.C. § 3161(h)(l)-(9). In addition, “[flailure of the defendant to move for dismissal prior to trial ... shall constitute waiver of the right to dismissal.” 18 U.S.C. § 3162(a)(2). The government argues that Mr. Lugo waived his right to raise the Speedy Trial Act issue because he never filed a formal motion to dismiss with the district court. On March 28, 1997, at his arraignment, Mr. Lugo indicated that he might file a motion to dismiss on speedy trial grounds and there was some discussion on the issue. The magistrate judge never suggested that Mr. Lugo was relieved of the necessity of formally raising the issue, stating that" }, { "docid": "12635242", "title": "", "text": "We are also unable to determine from the record when Mr. Cleary began his representation of defendant. Although the May 12 meeting might be construed as an appearance through counsel, it did not take place thirty days before the commencement of trial. Because there was neither an express waiver nor an appearance through counsel more than thirty days earlier, we conclude that in commencing trial when it did, the District Court failed to comply with the Speedy Trial Act. We also hold, however, that the sanction of a new trial is not appropriate in the case before us. Section 3161(c)(2) of the Speedy Trial Act was passed to address the concern that a defendant be allowed sufficient time to prepare for trial. The Speedy Trial Act does not provide a specific sanction for violations of this provision’s time requirements as it does for violations of other time provisions. We hold that, in light of Con gress’ failure to provide a sanction and the purpose of section 3161(c)(2), defendant must demonstrate that she was prejudiced by the untimely commencement of trial in order to obtain a new trial. Cf. United States v. Anderton, 752 F.2d 1005, 1008 (5th Cir.1985) (holding that a defendant must show prejudice in order to win reversal of a conviction for a violation of section 3161(j)). Defendant has not met this burden. She did not raise the Speedy Trial Act claim before the District Court. The Court of Appeals for the Eighth Circuit has held that where a defendant failed to raise the claim of violation of the thirty-day requirement at the trial level the defendant effectively waived the right to raise it on appeal. See United States v. Ferguson, 776 F.2d 217, 221-22 (8th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986). We agree. Had defendant raised the statutory violation, there is no reason to believe that the District Court would not have corrected any error. Defendant had several months in which to prepare her case. The pretrial proceedings and the trial itself were repeatedly postponed due to her refusal to" }, { "docid": "22976769", "title": "", "text": "Because Grubich did not have thirty days between her first appearance through counsel and her trial, the district court violated the Speedy Trial Act in commencing her trial on June 7, 1999. The Speedy Trial Act does not provide a sanction for violations of its thirty-day waiting period. We have held, however, that a “defendant must demonstrate that she was prejudiced by the untimely commencement of trial in order to obtain a new trial.” United States v. Grosshans, 821 F.2d 1247, 1253 (6th Cir.), cert. denied, 484 U.S. 987, 108 S.Ct. 506, 98 L.Ed.2d 505 (1987). In Grosshans, the court stated that when a defendant fails to raise a Speedy Trial Act claim before the district court, she effectively waives it because “[h]ad defendant raised the statutory violation, there is no reason to believe that the District Court would not have corrected any error.” Id. The defendant in Gros-shans did not present a Speedy Trial Act objection to the district court and had several months to prepare for trial. The court concluded that the defendant was unable to show that she was prejudiced by the Speedy Trial Act violation and therefore was not entitled to a new trial. See id. In the present case, Grubich did not make a Speedy Trial Act objection before the district court. Grubich argues that she did not raise this issue because the district court made it clear that it would not grant a continuance. Although the district court stated that it would not issue a continuance to allow for additional discovery, there is no evidence that the court would have denied a motion for a continuance if the Speedy Trial Act violation had been brought to its attention. More importantly, Grubich has failed to identify any specific harm from the Speedy Trial Act violation, which left her attorney with approximately twenty-five days to prepare for trial instead of thirty days. The district court granted Grubich’s motion for an extension to file pretrial motions, and Gru-bich’s attorney filed a motion to suppress on her behalf. As noted above, this was not a factually complex case," }, { "docid": "2210842", "title": "", "text": "motion for an “ends of justice” continuance. Id. at 506, 126 S.Ct. 1976 (quoting 18 U.S.C. § 3161(h)(8)(A) (2006)). Pakala argues that the district court failed to follow Zedner, and, accordingly, that his conviction should be dismissed under the Act. See 18 U.S.C. § 3162(a)(2) (“If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant”) (emphasis added); see also Zedner, 547 U.S. at 509, 126 S.Ct. 1976 (noting that “[t]he sanction for a violation of the Act is dismissal .... ”). As an initial matter, the government contends that Pakala waived the issue because he failed to raise it in his initial brief. “We have consistently held that arguments not raised in the initial appellate legal brief are considered waived.” See United States v. Capozzi, 486 F.3d 711, 719 n. 2 (1st Cir.2007). However, the record is fully developed with respect to Pakala’s claim, such that no additional fact-finding is necessary, and thus no “special prejudice” to the government would result in addressing the claim. See Nat’l Ass’n of Social Workers v. Harwood, 69 F.3d 622, 627-28 (1st Cir.1995) (noting that a failure to raise an issue to the district court can be excused where, among other things, the appellant did not “deprive[ ] the court of appeals of useful factfinding” and the claim “is law-based, not fact-based,” such that there is “no special prejudice or inequity to the” other side); see also United States v. LaGuardia, 902 F.2d 1010, 1013 (1st Cir.1990) (permitting review of an issue raised for the first time on appeal where, among other things, “the point can be resolved with certitude on the existing record, a factor that often inclines a court to entertain a pivotal argument for the first time on appeal”). ‘We review the district court’s denial of a motion to dismiss based upon the Speedy Trial Act de novo as to legal rulings and for clear error as to factual findings.” United States v. Maxwell, 351 F.3d 35, 37" }, { "docid": "4033822", "title": "", "text": "seventy days’ from the later of (1) the ‘filing date’ of the information or indictment or (2) the defendant’s initial appearance before a judicial officer.” United States v. Tinklenberg, — U.S.-, 131 S.Ct. 2007, 2010, 179 L.Ed.2d 1080 (2011) (citation omitted) (quoting 18 U.S.C. § 3161(c)(1)). Reagan’s initial appearance was on October 1, 2007, and his trial did not commence until June 22, 2009, a gap of 628 days. Reagan contends that this delay in bringing him to trial deprived him of his constitutional and statutory rights. Reagan did not move for dismissal of his indictment before the district court on the basis of a Speedy Trial Act violation, and he has therefore waived his statu tory claim. See 18 U.S.C. § 3162(a)(2); see also United States v. Westbrook, 119 F.3d 1176, 1186 (5th Cir.1997) (holding a Speedy Trial Act claim waived when a defendant failed to join his co-defendant’s motion to dismiss the indictment). Although the Supreme Court has held that a defendant does not waive his constitutional right to a speedy trial by failing to raise it before the district court, we consider constitutional speedy-trial arguments raised for the first time on appeal for plain error only. See United States v. Serna-Villarreal, 352 F.3d 225, 231 (5th Cir.2003). In assessing a defendant’s claim that he was deprived of his constitutional right to a speedy trial, this court considers four factors: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). “Once a speedy trial analysis is triggered, the court ‘determines whether the first three Barker factors weigh so heavily in favor of the defendant that prejudice is presumed.’ ” United States v. Bishop, 629 F.3d 462, 465 (5th Cir.2010) (quoting United States v. Frye, 489 F.3d 201, 209 (5th Cir.2007)). In the absence of such a presumption, the defendant must affirmatively demonstrate prejudice. See United States v. Molina-Solorio, 577 F.3d 300, 307 (5th Cir.2009). With respect to the length of the delay, in United States" }, { "docid": "6658366", "title": "", "text": "enter a plea agreement and agree to testify for the Government. [PROSECUTOR]: Your Honor, objection. THE COURT: Sustained. R2-35-36, 39-40. The prosecutor did not state its basis for the objection, and the defense did not proffer grounds for admissibility. II. DISCUSSION A 18 U.S.C. § 8161(c)(2) Edwards asserts that his trial began in violation of the Speedy Trial Act because only twenty-nine days passed between his initial appearance and the start of his trial. Pursuant to the Speedy Trial Act, a criminal trial should not begin “less than thirty days from the date on which the defendant first appears.” 18 U.S.C. § 3161(c)(2). The government concedes that it violated section 3161(c)(2). Edwards asserts that such a per se violation of 3161(c)(2) entitles him to a new trial. See United States v. Darby, 744 F.2d 1508, 1520 (11th Cir.1984) (applying “literal construction” of section 3161(c)(2) in determining starting point for thirty day period in affirming district court’s denial of motion for continuance where counsel was changed); United States v. Mers, 701 F.2d 1321, 1331-35 (11th Cir.1983) (holding that section 3161(c)(2) in no way requires that time otherwise excludable in determining delay under Speedy Trial Act should not be excluded if it occurs in first thirty day interval). See also United States v. Daly, 716 F.2d 1499, 1506 (9th Cir.1983) (stating that “any pretrial preparation shorter than thirty days is inadequate per se”). The United States Court of Appeals for the Fifth and Sixth Circuits have held that defendants must show prejudice in order to receive a new trial under section 3161(c)(2). See United States v. Cisneros, 112 F.3d 1272, 1277 (5th Cir.1997) (stating prejudice requirement); United States v. Storm, 36 F.3d 1289, 1294 (5th Cir.1994) (same); United States v. Marroquin, 885 F.2d 1240, 1245 (5th Cir.1989) (same); United States v. Grosshans, 821 F.2d 1247, 1252-53 (6th Cir.1987) (same). The rationale for the prejudice requirement is that because Congress failed to provide a sanction for the violation of section 3161(c)(2), a defendant must show that he was prejudiced by such violation. Storm, 36 F.3d at 1294;, Marroquin, 885 F.2d at 1245; Grosshans," }, { "docid": "12846437", "title": "", "text": "to give the instruction simply because there was insufficient evidence that there even was a missing witness. Moreover, Adeniji has not shown that the missing agent was unavailable to him; indeed, he did not even inquire about the agent prior to trial. See United States v. Nichols, 912 F.2d 598, 601-02 (2d Cir.1990) (failure to call law enforcement agents as witnesses did not require missing witness charge since agents were equally available to defendant). Accordingly, Adeniji cannot show that the district court committed any error at all, let alone plain error. 3. Speedy Trial Act On appeal, counsel for Adeniji did not raise a Speedy Trial Act claim. However, Adeniji himself raised the claim in a pro se brief submitted to this Court. At oral argument, the panel asked the parties to submit letters addressing the issue. After reviewing the letters and the record, we believe that the prudent course is to remand the case to the district court so that it can consider the parties’ arguments in the first instance and make any factual findings necessary to determine this claim. According to the Government, Adeniji’s trial commenced on the last day possi ble under the seventy-day rule of 18 U.S.C. § 3161(c)(1), August 17,1992. However, the record indicates that the trial commenced on August 19, which would result in a Speedy Trial violation under the Government’s own calculations. It appears that a two-day continuance of the trial date was granted at an August 11, 1992 conference, when defense counsel requested additional time to interview potential witnesses. In order to exclude these two days from the Speedy Trial period the district court was required to find that “the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(8)(A); see United States v. Tunnessen, 763 F.2d 74, 78 (2d Cir.1985) (“time may not be excluded based on the ends-of-justice unless the district court indicates that it is doing so upon a balancing of the factors specified by section 3161(h)(8)”); United States v. Perez-Reveles," } ]

[ { "docid": "20190041", "title": "", "text": "Court has used the same “objectively reasonable” standard in describing both the constitutional test of liability, see Graham, 490 U.S. at 397, 109 S.Ct. at 1872, and the Court’s own standard for qualified immunity. Anderson, 483 U.S. at 639, 107 S.Ct. at 3038. It seems unlikely that this case would deserve a different outcome even if the qualified immunity defense had not been raised. As a matter of legislative policy, one could argue for less latitude for armed officers, at least in the case of fleeing suspects who are not an immediate threat. But the Supreme Court’s decisions make the objective reasonableness test a minimum constitutional standard for liability; a legislature cannot afford less protection for citizens. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). There is nothing that prevents a legislature from being tougher on its police (e.g., by adopting stringent and specific firearms regulations), or being more generous to victims (through compensation), or both. Against this background, we think that the district court properly granted summary judgment on the section 1983 claim in favor of Whalen. Perhaps a jury could rationally have found that Whalen could have done a better job; but in our view a jury could not find that his conduct was so deficient that no reasonable officer could have made the same choice as Whalen — in circumstances that were assuredly “tense, uncertain, and rapidly evolving....” Graham, 490 U.S. at 397, 109 S.Ct. at 1872. Put differently, Whalen’s actions, even if mistaken, were not unconstitutional. Roy was armed; he apparently tried to kick and strike at the officers; he disobeyed repeated instructions to put down the weapons; and the officers had other reasons, already described, for thinking him capable of assault. Apart from the suggestion that mace should be carried by all policemen, Roy’s expert nowhere explains in his affidavit how the police could have subdued Roy; and it is not obvious that it would have been a better solution (as the expert seems to suggest) for the police to retreat, leaving an intoxicated armed man on the premises —" } ]

[ { "docid": "15657086", "title": "", "text": "how it is carried out.” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (citing Tennessee v. Garner, 471 U.S. 1, 7-8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Thus there is a cause of action under 42 U.S.C. § 1983 for excessive force used to effectuate an arrest. See id.; see also Kostrzewa v. City of Troy, 247 F.3d 633, 638-39 (6th Cir.2001). But as the text of the Fourth Amendment and the Supreme Court’s cases indicate, an arrest need not be an assault for it to be actionable under § 1983. See Burchett, 310 F.3d at 946 (observing that an allegation of assault is not necessary to sustain an excessive force claim) (citing Cornwell v. Dahlberg, 963 F.2d 912, 915 (6th Cir.1992)). The touchstone, as with all Fourth Amendment questions, is the reasonableness of the arresting officers’ actions. As the Supreme Court put it in Graham, “[a]s in other Fourth Amendment contexts ... the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397, 109 S.Ct. 1865. In Graham, the Supreme Court instructed reviewing courts to consider various factors in evaluating excessive force and unreasonable arrest claims. Accordingly, the “proper application” of the reasonableness inquiry “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.Ct. 1865 (citing Garner, 471 U.S. at 8-9, 105 S.Ct. 1694). These factors do not constitute an exhaustive list; the ultimate question is “whether the totality of the circumstances justifies a particular sort of seizure.” Id. Resolving this question in a particular case inherently requires the court to carefully balance the nature of the intrusion on the arrestee’s Fourth Amendment rights against" }, { "docid": "1055187", "title": "", "text": "v. City of Laconia, 71 F.3d 20, 26 (1st Cir.1995). Thus, police officers’ actions for our purposes need not be examined solely at the “moment of the shooting.” Id.; see also Roy v. City of Lewiston, 42 F.3d 691, 696 (1st Cir.1994) (considering within the context of an excessive force case that the plaintiff “was armed; he apparently tried to kick and strike at the officers; he disobeyed repeated instructions to put down the weapons” as well as whether the police, tactically, should have been armed with non-lethal mace as well as guns and whether they should have “kept their distance” from the plaintiff instead of trying to subdue him at all). This rule is most consistent with the Supreme Court’s mandate that we consider these cases in the “totality of the circumstances.” Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); see Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Abraham v. Raso, 183 F.3d 279, 291 (3d Cir.1999). The district judge’s admission of the evidence was appropriate. Defendants also argue that the only possible unreasonable action by Solitro was leaving cover and that was not enough to raise a jury question as to the objective unreasonableness of Solitro’s use of force, as a matter of law. Cf. Napier v. Town of Windham, 187 F.3d 177, 188 (1st Cir.1999) (fact that officers snuck up to suspect’s house did not create jury question in excessive force case where officers unquestionably acted reasonably in the few moments immediately surrounding the shooting). A jury could have found, inter alia, that the officers’ misidentification of Cornel by itself was unreasonable, as well as the rapidity with which they shot Cor-nel. The defendants’ real claim is that the leaving of cover lacked a sufficient causal nexus to the shooting of Cornel to be admissible evidence — -defendants argued at trial and here that the causal relationship was simply too “remote.” Such questions of proximate cause are generally best left to the jury; so here. See, e.g. Wortley v. Camplin, 333 F.3d 284, 295" }, { "docid": "308180", "title": "", "text": "Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). The right the Estate alleges was violated here is Waterman’s Fourth Amendment right to be free of unreasonable seizures, a right which includes seizures accomplished by excessive force. See Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir.2003). The test for whether force employed to effect a seizure is excessive is one of “ ‘objective reasonableness’ under the circumstances.” Graham v. Connor, 490 U.S. 386, 399, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In determining whether force was excessive, a court must weigh “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Id. at 396 (internal quotation marks omitted). Because “police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rap idly evolving,” id. at 397, 109 S.Ct. 1865, the facts must be evaluated from the perspective of a reasonable officer on the scene, and the use of hindsight must be avoided, see id. at 396, 109 S.Ct. 1865. Additionally, the reasonableness of the officer’s actions in creating the dangerous situation is not relevant to the Fourth Amendment analysis; rather, reasonableness is determined based on the information possessed by the officer at the moment that force is employed. See Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir.1996); Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir.1991). Here, Appellants seized Waterman by shooting him. It is important to recognize that “[t]he intrusiveness of a seizure by means of deadly force is unmatched.” Tennessee v. Garner, 471 U.S. 1, 9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Nevertheless, a police officer may employ deadly force when the officer has “probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Id. at 11, 105 S.Ct. 1694. B. We now turn to the question of whether the record, viewed in the light most favorable to the Estate, shows that Appellants’ shooting of Waterman constituted an unreasonable seizure under the Fourth" }, { "docid": "14135281", "title": "", "text": "28, 2000, were violative of decedent’s Fourth Amendment right to be free from an unreasonable seizure of his person. In order to find that such a violation had occurred, plaintiff had to prove that Solitro’s and/or Saraiva’s actions were not “objectively reasonable.” Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The reasonableness of the officers’ actions is not examined only at the moment of the shooting. St. Hilaire v. City of Laconia, 71 F.3d 20, 26 (1st Cir.1995). Rather, the actions leading up to the seizure are also examined. Id. The officers’ pre-confrontation actions themselves may serve as the unreasonable conduct upon which a § 1983 claim is based. Napier v. Town of Windham, 187 F.3d 177, 188 (1st Cir.1999). The evidence presented by the plaintiff included Diaz’s testimony that when he last saw Young, Young was not pointing his gun at Diaz. Also, plaintiff presented evidence that Saraiva was acting as Solitro’s training officer on January 28, 2000; that Saraiva was the senior officer of the two; that Saraiva did not give any direction to Solitro to maintain “cover” ; and that Solitro broke cover, thereby creating the exigency that forced Solitro and Saraiva to fire at Young. Also, plaintiff presented the expert opinion of Dr. James Fyfe who testified that Saraiva’s-failure to give direction to Solitro was in violation of nationally approved standards and that Solitro’s leaving cover was also violative of national standards. From these facts the jury could reasonably find that plaintiff had made out each element of her claim. Therefore, for the above reasons, the Court denied the Rule 50 motion made by the City, Prignano, Sullivan, Ryan and Cohen at the conclusion of plaintiffs case. For the same reasons, defendants’ renewed motion, made at the conclusion of all the evidence was also denied. B. The Motions for Summary Judgment. Ryan and Cohen filed a motion for entry of summary judgment in their favor as to all claims asserted against them by plain tiff in her amended complaint, specifically those set forth in Counts II, V, VII and IX. The" }, { "docid": "1055186", "title": "", "text": "defendants raise challenges to the phase one jury verdicts. Defendants challenge the verdict that Soli-tro violated Cornel’s constitutional rights; Young challenges the verdict that Saraiva did not. We address these challenges in turn, ultimately determining that there is no need to disturb the jury’s verdicts. 1. The Defendants’ Challenge to the Soli-tro Verdict of Constitutional Violation Ryan and Cohen argue strenuously that the Solitro verdict must be overturned because of the erroneous admission of testimony that Solitro left cover, and in particular the testimony of Dr. Fyfe, which focused on assessing the propriety of Solitro’s leaving cover. This argument is incorrect; the court did not abuse its discretion in admitting this evidence. Likewise, the court did not abuse its discretion in instructing the jury that “events leading up to the shooting” could be considered by it in determining the excessive force question. The rule in this circuit is that once it is clear that a seizure has occurred, “the court should examine the actions of the government officials leading up to the seizure.” St. Hilaire v. City of Laconia, 71 F.3d 20, 26 (1st Cir.1995). Thus, police officers’ actions for our purposes need not be examined solely at the “moment of the shooting.” Id.; see also Roy v. City of Lewiston, 42 F.3d 691, 696 (1st Cir.1994) (considering within the context of an excessive force case that the plaintiff “was armed; he apparently tried to kick and strike at the officers; he disobeyed repeated instructions to put down the weapons” as well as whether the police, tactically, should have been armed with non-lethal mace as well as guns and whether they should have “kept their distance” from the plaintiff instead of trying to subdue him at all). This rule is most consistent with the Supreme Court’s mandate that we consider these cases in the “totality of the circumstances.” Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); see Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Abraham v. Raso, 183 F.3d 279, 291 (3d Cir.1999). The district judge’s admission" }, { "docid": "1055185", "title": "", "text": "should have brought any concerns to him after reviewing the background check in conjunction with other materials, while Sullivan said that he never saw the background investigations and did not know who considered them. Evidence existed as well that some candidates whom background investigators recommended be rejected were subsequently accepted to later academy classes without any consultation with the original background investigator who wrote the negative report. Finally, there was some evidence of generalized corruption in the PPD’s hiring and promotions practices. Officers seeking promotions were allowed to cheat on certain promotional exams. Further, there is evidence that one applicant for a PPD position benefitted from a bribe: despite officials knowing that he had a series of arrests and an expunged criminal record for impersonating a police officer and being caught near his girlfriend’s cabin with a rifle, the applicant was not removed from the academy list. Partington eventually ensured that the individual’s name was removed from the list and he was never hired. III. Challenges to the Phase one Verdicts Both Young and the defendants raise challenges to the phase one jury verdicts. Defendants challenge the verdict that Soli-tro violated Cornel’s constitutional rights; Young challenges the verdict that Saraiva did not. We address these challenges in turn, ultimately determining that there is no need to disturb the jury’s verdicts. 1. The Defendants’ Challenge to the Soli-tro Verdict of Constitutional Violation Ryan and Cohen argue strenuously that the Solitro verdict must be overturned because of the erroneous admission of testimony that Solitro left cover, and in particular the testimony of Dr. Fyfe, which focused on assessing the propriety of Solitro’s leaving cover. This argument is incorrect; the court did not abuse its discretion in admitting this evidence. Likewise, the court did not abuse its discretion in instructing the jury that “events leading up to the shooting” could be considered by it in determining the excessive force question. The rule in this circuit is that once it is clear that a seizure has occurred, “the court should examine the actions of the government officials leading up to the seizure.” St. Hilaire" }, { "docid": "23622604", "title": "", "text": "constitutional right to be free from excessive force during an arrest. See, e.g., Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Solomon, 389 F.3d at 173. “[A]ll claims that law enforcement officers have used excessive force — deadly or not — -in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.... ” Graham, 490 U.S. at 395, 109 S.Ct. 1865. “[T]he Fourth Amendment prohibits a police officer’s use of deadly force to seize an unarmed, non-dangerous suspect.” Sample v. Bailey, 409 F.3d 689, 696 (6th Cir.2005) (citing Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Rather, the use of deadly force is only constitutionally permissible if “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.... ” Garner, 471 U.S. at 11, 105 S.Ct. 1694; see also Sample, 409 F.3d at 697 (noting that “only in rare instances may an officer seize a suspect by use of deadly force”). The Court has identified three factors that lower courts should consider in determining the reasonableness of force used: (1) the severity of the crime at issue; (2) whether the suspect posed an immediate threat to the safety of the police officers or others; and whether the suspect actively resisted arrest or attempted to evade arrest by flight. Graham, 490 U.S. at 396, 109 S.Ct. 1865; Smoak v. Hall, 460 F.3d 768, 783 (6th Cir.2006). These factors are not an exhaustive list, as the ultimate inquiry is “whether the totality of the circumstances justifies a particular sort of seizure.” St. John v. Hickey, 411 F.3d 762, 771 (6th Cir.2005) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). Considering the totality of the facts and circumstances as alleged by Liv-ermore, we hold that Sgt. Lubelan acted reasonably in firing at Rohm. Several factors compel a finding that Rohm posed a serious threat: Rohm helped cause the standoff that led to" }, { "docid": "5095933", "title": "", "text": "abusive government conduct.” Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443 (1989). For Fourth Amendment purposes, a police officer, “seizes” a person when he, by physical force or show of authority, limits that person’s liberty. California v. Hodari D., 499 U.S. 621, 625-26, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991). Terms like “seizure” and “intrusive governmental conduct,” Graham, 490 U.S. at 395, 109 S.Ct. at 1871, cannot capture the facts of this case; it is an unavoidable understatement to observe that the shooting was a seizure. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir.1995); Tennessee v. Garner, 471 U.S. 1, 9, 105 S.Ct. 1694, 1700, 85 L.Ed.2d 1 (1985) (“The intrusiveness of a seizure by means of deadly force is unmatched.”). But even if the translation is imperfect, we use the Fourth Amendment’s objective-reasonableness standard to analyze excessive-force claims. Graham, 490 U.S. at 395, 109 S.Ct. at 1871; Schulz, 44 F.3d at 648. We are careful not to indulge in armchair quarterbacking or exploit the benefits of hindsight when evaluating police officers’ use of deadly force. It may appear, in the calm aftermath, that an officer could have taken a different course, but we do not hold the police to such a demanding standard. See Cole, 993 F.2d at 1333-34. Police officers have tough jobs, and the “calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving_” Graham, 490 U.S. at 396-97, 109 S.Ct. at 1871-72. When is a deadly-force seizure reasonable? We apply the standard provided in Tennessee v. Garner: A seizure-by-shooting is objectively reasonable when “the officer [using the force] has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” 471 U.S. at 3, 105 S.Ct. at 1697; Ludwig, 54 F.3d at 471; Schulz, 44 F.3d at 649. We must balance “the nature and quality of the intrusion on ... Fourth Amendment interests against the countervailing government interests....”" }, { "docid": "5589837", "title": "", "text": "Cir.1994). The first step is to determine whether the plaintiff has alleged a violation of a clearly established constitutional right. Id. There is no dispute that Colston has met this burden; the use of excessive force to apprehend a subject implicates the Fourth Amendment’s guarantee against unreasonable seizures. See Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The second step requires the court to determine whether Barnhart’s conduct was objectively reasonable under existing clearly established law. Harper, 21 F.3d at 600. In Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989), the Supreme Court explained that the reasonableness inquiry in an excessive force case is an objective one; evaluating the officer’s conduct under the Fourth Amendment we must balance the amount of force used against the need for that force with reference to clearly established law at the time of the conduct in question. Id. at 396, 109 S.Ct. at 1871-72; see also Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir.1993); Fraire, 957 F.2d at 1273. The Supreme Court instructs that in determining the reasonableness of Barnhart’s conduct, we are not to employ “the 20/20 vision of hindsight,” Graham, 490 U.S. at 396, 109 S.Ct. at 1872, and that we must consider “the fact that police officers are often forced to make split second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 396-97, 109 S.Ct. at 1872. We turn now to the issue of whether it was objectively reasonable for Barnhart to use deadly force, given the totality of the circumstances confronting him. Barnhart argues that it was objectively reasonable, under Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), for him to use deadly force because a reasonable officer in his circumstances would have believed that Colston posed a threat of serious bodily harm or death to himself or Langford. Colston maintains that it was not" }, { "docid": "14135280", "title": "", "text": "VIII and IX. The Court now sets forth the legal analysis supporting each of these rulings. II. Discussion. A. The Rule 50 motions. In deciding a motion for judgment as a matter of law under Fed.R.Civ.P. 50, the Court must examine the evidence and the inferences drawn therefrom in the light most favorable to the nonmovant. E.g., Espada v. Lugo, 312 F.3d 1, 2 (1st Cir.2002). The Court does not engage in credibility determinations or weigh the evidence. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); White v. N.H. Dep’t of Corrs., 221 F.3d 254, 259 (1st Cir.2000) (quoting Katz v. City Metal Co., 87 F.3d 26, 28 (1st Cir.1996)). The motion may be granted only if the evidence would not permit a reasonable jury to find in favor of the nonmovant. E.g., Espada, 312 F.3d at 2. The claim before the jury in the first phase of these proceedings was whether the actions of Solitro and/or Saraiva in shooting Cornel Young, Jr., on January 28, 2000, were violative of decedent’s Fourth Amendment right to be free from an unreasonable seizure of his person. In order to find that such a violation had occurred, plaintiff had to prove that Solitro’s and/or Saraiva’s actions were not “objectively reasonable.” Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The reasonableness of the officers’ actions is not examined only at the moment of the shooting. St. Hilaire v. City of Laconia, 71 F.3d 20, 26 (1st Cir.1995). Rather, the actions leading up to the seizure are also examined. Id. The officers’ pre-confrontation actions themselves may serve as the unreasonable conduct upon which a § 1983 claim is based. Napier v. Town of Windham, 187 F.3d 177, 188 (1st Cir.1999). The evidence presented by the plaintiff included Diaz’s testimony that when he last saw Young, Young was not pointing his gun at Diaz. Also, plaintiff presented evidence that Saraiva was acting as Solitro’s training officer on January 28, 2000; that Saraiva was the senior officer of the two; that Saraiva" }, { "docid": "14048292", "title": "", "text": "and provided Brewer with ample room to argue his theory of the case to the jury, i.e., that Med-lar and Perry had options available to them other than ordering a police dog to attack. Indeed, we have previously upheld as adequate the use of fairly general reasonableness/“totality of the circumstances” instructions in an excessive force case, despite the plaintiffs request for more detailed instructions addressing the specific factors to be considered in the reasonableness calculus. See Fikes v. Cleghorn, 47 F.3d 1011, 1014 (9th Cir.1995) (“This instruction complies with [Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989),] by focusing on the totality of the circumstances. Fikes was free to argue the three factors [mentioned specifically in Graham ] as well as others to the jury.”). Because “[i]t is not error to reject a theory-of-the-case instruction if the other instructions in their entirety cover the defense theory,” United States v. Lawrence, 189 F.3d 838, 843 (9th Cir.1999) (citation omitted), the district court did not abuse its discretion in declining to give Brewer’s proposed instruction regarding alternatives. B Brewer contends that the jury should have been instructed that “the officers [who arrested Brewer] did not have probable cause to believe plaintiff was armed.” This claim lacks merit; the legal issue of whether Medlar and Perry had probable cause to believe Brewer was armed was not the issue before the jury. In Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the Supreme Court held that deadly force “may not be used unless it is necessary to prevent the escape [of a suspected felon] and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Id. at 3, 105 S.Ct. 1694 (emphasis added). In Graham, a non-deadly force case, the Court stated that assessing the Fourth Amendment reasonableness of a use of force “requires careful attention to the facts and circumstances of each particular case, whether the suspect poses an immediate threat to the safety of the officers or" }, { "docid": "21115761", "title": "", "text": "Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 1699-1700, 85 L.Ed.2d 1 (1985)). The Fourth Amendment reasonableness test requires careful attention to the circumstances in the particular case. McCabe v. Life-Line Ambulance Serv., Inc., 77 F.3d 540, 546 (1st Cir.), cert. denied, — U.S. -, 117 S.Ct. 275, 136 L.Ed.2d 198 (1996). Moreover, “a viable excessive force claim must demonstrate that the police defendantfs] actions were not objectively reasonable, viewed in light of the facts and circumstances confronting him and without regard to his underlying intent or motivation.” Alexis v. McDonald’s Restaurants of Massachusetts, Inc., 67 F.3d 341, 352 (1st Cir.1995). See also Graham, 490 U.S. at 397, 109 S.Ct. at 1872. Graham identifies three factors for evaluating whether the force used to effect a seizure was objectively reasonable: (1) the severity of the crime, (2) whether there was “an immediate threat to the safety of the officers or others”; and (3) whether the suspect was, inter alia, “actively resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.Ct. at 1872. See Alexis, 67 F.3d at 352-53. Under these standards, we conclude that the district court correctly ruled that no rational jury could have found this roadblock unreasonable in the circumstances. See Seekamp, 936 F.Supp. at 28. Seekamp contends that the roadblock was set up in a manner likely to kill him. See Brower, 489 U.S. at 599, 109 S.Ct. at 1382-83 (noting that the potential for recovery by Brower arose “only because the unreasonableness ... allege[d] consisted] precisely of setting up the roadblock in such a manner as to be likely to kill him.”). In that event, he argues, the more particularized analysis employed in Gamer, 471 U.S. at 11, 105 S.Ct. at 1701, prohibiting deadly force against fleeing suspects who pose no immediate danger to the officers or the public, displaces the Graham analysis. We need only consider the evidence material to the threshold requirement that" }, { "docid": "20520134", "title": "", "text": "district court erred in concluding that Jordan’s rights were not violated and that House did not violate clearly established law. We reach only Cass’s first argument. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Although Jordan was not the intended target of House’s bullet, Cass’s claim on his behalf is properly assessed under the Fourth Amendment. See Fisher v. City of Memphis, 234 F.3d 312, 318-19 (6th Cir.2000). The Fourth Amendment’s prohibition against unreasonable seizures prohibits the use of excessive force against free citizens. Id. (citing Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The test is one of objective reasonableness: “[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397, 109 S.Ct. 1865. We assess “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight,” id. (citing Tennessee v. Gamer, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)), among other case-specific factors. See Ciminillo v. Streicher, 434 F.3d 461, 467 (6th Cir.2006). In short, we ask whether the officer’s use of force was objectively reasonable in light of the totality of the circumstances as they would have appeared to a “reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. Tennessee v. Gamer provides the starting point for assessing the use. of deadly force against fleeing felony suspects. There, the Supreme Court held that the Fourth Amendment does not permit a police officer to “seize an unarmed, nondangerous suspect by shooting him dead.” 471 U.S. at 11, 105 S.Ct. 1694. At the same time, “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable" }, { "docid": "19183617", "title": "", "text": "a reasonable officer on the scene, without the benefit of 20/20 hindsight, would have used such force under similar circumstances.” Mr. Rahn argues on appeal that the district court erred in not giving his proposed instruction to the jury. There is no dispute that Officers Hawkins and Jansen used deadly force in shooting Mr. Rahn; the only question at trial was if they acted reasonably in doing so. Mr. Rahn contends that because Model Instruction 4.10 does not advert specifically to the circumstances in which the police may constitutionally use deadly force, the district court should have given his instruction that draws on language in Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). In reviewing jury instructions, we look at “whether the instructions, taken as a whole and viewed in the light of the evidence and applicable law, fairly and adequately submitted the issues in the case to the jury.” Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 711 (8th Cir.2001). We will reverse where the error affected the substantial rights of the parties. Id. The use of deadly force to subdue a suspect is a seizure under the fourth amendment. Garner, 471 U.S. at 7, 105 S.Ct. 1694. A police officer may constitutionally employ such force only when “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Id. at 11, 105 S.Ct. 1694; see also Thompson v. Hubbard, 257 F.3d 896, 899 (8th Cir.2001). This standard is more detailed and demanding than the one that governs excessive-force claims not including deadly force. Compare Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). One purpose of jury instructions “is to inform the jury of various permissible ways of resolving the issues in the case, and a party is entitled to an instruction on its theory of the case so long as it is legally correct and there is factual evidence to support it.” Thornton v. First State Bank of Joplin," }, { "docid": "16211030", "title": "", "text": "defense of qualified immunity; rather, they attack the substance of plaintiffs’ excessive force claim, arguing that defendants did not use excessive force, but used only that force which was reasonably necessary to arrest DeBellis. A claim for excessive force “should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. at 396, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). The Supreme Court has explained that the reasonableness inquiry in an excessive force case is an objective one: “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham at 397, 105 S.Ct. 3099, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443. The Fourth Amendment reasonableness test “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. The Third Circuit also requires that courts consider “how many individuals the officers confronted and whether ‘the physical force applied was of such an extent as to lead to injury.’ ” Mellott v. Heemer, 161 F.3d 117, 122 (3d Cir.1998) (quoting Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.1997)). The Court further stated that the “ ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham at 396, 105 S.Ct. 3099, 490 U.S. 386, 109" }, { "docid": "2262065", "title": "", "text": "light most favorable to the party asserting the injury,” i.e. Clem, “the facts alleged show that” Officer Corbeau’s “conduct violated a constitutional right.” Saucier, 121 S.Ct. at 2156. Clem maintains that the facts outlined above, considered in the light most favorable to him, demonstrate that Officer Cor-beau violated his Fourth Amendment right to be free from the use of excessive force by police officers in effecting an arrest or other seizure. Indisputably, the Fourth Amendment prohibition on unreasonable seizures bars police officers from using excessive force against a free citizen, like Clem. See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Whether an officer has used excessive force is judged by a standard of objective reasonableness. Id. at 396-97, 109 S.Ct. 1865. We do not inquire into an officer’s motives, intentions, or tendencies, and instead determine “whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force.” Elliott, 99 F.3d at 642 (citing Graham, 490 U.S. at 396-97, 109 S.Ct. 1865). Because this test requires us to determine the reasonableness of an officer’s actions, it is “not capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), but rather “requires careful attention to the facts and circumstances of each particular case.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. Recognizing that “police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving”—we take care to consider the facts from the perspective of a reasonable officer on the scene, and avoid judging the officer’s conduct with the “20/20 vision of hindsight.” Id. at 396, 397, 109 S.Ct. 1865. We must determine “whether the totality of the circumstances justifie[s]” the use of deadly force given all the circumstances of the case before us. Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), quoted with approval in Graham, 490 U.S. at 396, 109 S.Ct. 1865; see also Rowland v. Perry, 41 F.3d 167, 173 (4th" }, { "docid": "7827413", "title": "", "text": "664, 666 (8th Cir.1992), which should be decided at the “earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). Excessive force claims arising from arrests are analyzed under the Fourth Amendment, Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), and the use of force is not constitutionally excessive if the “officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Id. at 397, 109 S.Ct. 1865. In applying this objective reasonableness standard, a court must pay close attention to the particular facts. It should consider such factors as the severity of a suspected crime, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting or evading arrest. Graham, 490 U.S. at 396, 109 S.Ct. 1865. It may also be appropriate to consider the extent of any injury sustained by the suspect, Foster v. Metropolitan Airports Comm’n, 914 F.2d 1076, 1082 (8th Cir.1990), and standard police procedures, Ludwig v. Anderson, 54 F.3d 465, 472 (8th Cir.1995). As the Supreme Court has noted, “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 397, 109 S.Ct. 1865. Critical decisions regarding the use of force often must be made without much time for reflection. The issue of reasonableness must be examined from the perspective of the facts known to the officer at the time of the incident. Schulz v. Long, 44 F.3d 643, 648 (8th Cir. 1995). Deadly force is justified if the totality of the circumstances gives the officer “probable cause to believe that the [arrestee] poses a threat of serious physical harm, either to the officer or others.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). The parties agree that either- shooting someone or striking him on" }, { "docid": "3081384", "title": "", "text": "396 (1982), “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Whether a defendant is entitled to qualified immunity depends on: “(1) whether the facts taken in the light most favorable to plaintiff could establish a constitutional violation; (2) whether the right was a ‘clearly established’ right of which any reasonable officer would have known; and (3) whether the official’s actions were objectively unreasonable in light of that clearly established right.” Risbridger, 275 F.3d at 569 (citing Williams v. Mehra, 186 F.3d 685, 690 (6th Cir.1999)). The sole issue in this appeal is whether Officer Backstrom, by shooting at Adams’s car, violated Adams’s Fourth Amendment rights. The Supreme Court held in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), that “all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.” Id. at 395, 109 S.Ct. 1865 (emphasis in original). The parties argue whether Officer Back-strom’s actions were objectively reasonable in light of the facts and circumstances surrounding the shooting. The Sixth Circuit has looked to several factors in determining whether objective reasonableness exists, including: 1) “the severity of the crime at issue,” 2) “whether the subject pose[d] a threat to anyone,” and 3) “whether the suspect [was] attempting to escape or ... resisting arrest.” Patrick v. City of Detroit, 906 F.2d 1108, 1115 (6th Cir.1990) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). Citing Graham and Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), Adams argues that a person has a clearly established right not to be shot unless he or she poses a threat to the police or to others. Accordingly, because Adams was unarmed and Officer Back-strom was not in the path of" }, { "docid": "19886084", "title": "", "text": "established right under the Fourth Amendment’s prohibition against unreasonable seizures of the person.” Guite v. Wright, 147 F.3d 747, 750 (8th Cir.1998) (citations omitted). “The violation of this right will, of course, support a § 1983 action.” Crumley v. City of St. Paul, 324 F.3d 1003, 1007 (8th Cir.2003). An officer is entitled to qualified immunity when the force is “objectively reasonable in light of the facts and circumstances confronting” the officer. Guite, 147 F.3d at 750 (citing Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)) (internal quotation marks omitted). “Once the predicate facts are established, the reasonableness of the official’s conduct under the circumstances is a question of law.” Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir.2001) (citation omitted). Objective reasonableness is determined by balancing the “nature and quality of the intrusion on [plaintiffs] Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Ludwig v. Anderson, 54 F.3d 465, 471 (8th Cir.1995) (citing Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). This analysis requires careful attention to the facts and circumstances of the case, “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. A court may also evaluate the extent of the suspect’s injuries, Crumley, 324 F.3d at 1007, as well as standard police procedures. Ludwig, 54 F.3d at 472. Ultimately, the reasonableness of the force applied must be judged from the perspective of a reasonable officer on the scene “rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. The officers at the scene had been told that Mann was in a paranoid, belligerent, drug-crazed state and intended to do violence to the police if and when they should attempt to arrest him. They also knew that Mann had fired a gun at pursuing officers to escape" }, { "docid": "56621", "title": "", "text": "party. Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 675 (4th Cir.1996) (en banc). A. We first address whether the officers’ use of deadly force was justified under the circumstances. The constitutional right at issue in this case involves the Fourth Amendment’s prohibition against unreasonable seizures. The Supreme Court has held that “all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In assessing an excessive force claim under the Fourth Amendment, we apply an objective reasonableness standard: “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397, 109 S.Ct. 1865. “A police officer may use deadly force when the officer has sound reason to believe that a suspect poses a threat of serious physical harm to the officer or others.” Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir.1996) (citing Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). A reviewing court must keep in mind that “police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at 397, 109 S.Ct. 1865. We must therefore judge reasonableness from the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396, 109 S.Ct. 1865. In the case before us, the officers were investigating a suspected burglary in progress. They came across Cox while searching the residence and attempted to rouse him to ascertain his identity. It is undisputed that Cox unexpectedly sat up and pointed a concealed rifle at Ford. Ford immediately yelled something to the effect of “get your hands up, police.” Harman confirmed that Ford gave Cox this verbal warning before they started shooting. Officers Jones, Conlon, and Mercer" } ]

[ { "docid": "23294073", "title": "", "text": "which claimant’s interest arises, has a record or. reputation for violating state or federal liquor laws, then claimant must, before acquiring such interest, have been informed, in answer to his inquiry of a federal or principal local law enforcement officer, that such person has no such record or reputation. The failure of the Commercial Credit Company to make this necessary inquiry must cause the failure of its claim. Cf. United States v. Nat. Discount Corp., 7 Cir., 1939, 104 F.2d 611. Subsection (b) (3) is predicated upon the recognition of the “bootleg”' hazard as an element to be considered in investigating a person as a credit risk. See Senate Committee Hearings, 1935, Vol. 495, No. 4, p. 13; and House Reports, Vol. 4, 74th. Congress, 1st. Session, 1935, Report No. 1601, p. 6, where it was stated: “As a matter of sound business practice, automobile dealers, finance companies, and prospective lien-holders on automobiles examine records, and make inquiry of references and credit rating agencies as to the owner’s or prospective purchaser’s reputation for paying his debts and his ability to do so. This section merely requires that in the making of such inquiry, the ‘bootleg hazard’ also be examined as one aspect of the credit risk.” This Congressional intent to require courts to exact proof of inquiries was analyzed and approved by the Supreme Court in United States v. One 1936 Model Ford V-8 De Luxe Coach, 1939, 307 U.S. 219, 237, 59 S.Ct. 861, 83 L.Ed. 1249 (where it was held that a claimant had no duty to discover and then investigate somebody of whose existence he had no knowledge or suspicion). The proper places of inquiry are specifically désignated in the alternative by this section; and therefore a claimant cannot rely simply upon the automobile dealer’s reply to a printed question on a conditional sale agreement. An “automobile salesman is not likely to volunteer the information for his desire is to sell auto\" mobiles not to defeat sales.” See dissent, United States v. One 1936 Model Ford V-8 De Luxe Coach, supra, 307 U.S. at page 240, 59" } ]

[ { "docid": "23109210", "title": "", "text": "grant the claimant’s petition. As we pointed out in United States v. One Hudson Coupe, 110 F.2d 300, 302, both record and reputation are necessarily subjects of inquiry and information, and “it should by now be an elementary proposition that subsection (d) of this statute grants to the trial court discretion to refuse or grant remission or mitigation only when the statutory conditions have been fulfilled”. See also, United States v. One Ford Coach, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249; United States v. One 1936 Model Ford, 4 Cir., 93 F.2d 771; United States v. Automobile Financing, Inc., 5 Cir., 99 F.2d 498; C. I. T. Corp. v. United States, 4 Cir., 86 F.2d 311; United States v. C. I. T. Corp., 2 Cir., 93 F.2d 469; United States v. National Discount Corp., 7 Cir., 104 F.2d 611. The plaintiff contends that it acted with due diligence and perfect good faith, since it had no information as to the bad record or reputation of the purchaser, and made all of the inquiries required by the Act, and received only favorable replies as to the purchaser’s record. It insists that it had the right to assume that the purchaser not only had no record, but no reputation for violating the liquor laws, for otherwise the responsible officers of the law would have divulged it. But the power of the court to remit a forfeiture does not depend solely upon the claimant’s good faith. In addition, in order to confer jurisdiction upon the court, specific inquiries must be made and specific information must be received by the claimant as to both record and reputation, before he acquires his interest in the vehicle. In this procedure reputation and record are on the same footing. It is easy to understand why this should be so, for it is common knowledge that violators of the liquor law are frequently well known by reputation, especially to the enforcement officers, long before proof sufficient to bring about conviction and imposition of sentence is available. We do not question the claimant’s good faith or its" }, { "docid": "13513550", "title": "", "text": "the record insufficient to carry the question of the guilt of the automobile to the jury. If the United States is unable to present evidence implicating the automobile on retrial, the claimant will be entitled to judgment on a directed verdict. No evidence exists as to the use of the automobile in the “removal or for the deposit or concealment” of the non-tax-paid liquor. Testimony by one officer that he saw a man jump out of the car with a jug of liquor in his hand tends to show possession of the liquor by one who had been in the car, but it fails to implicate the automobile in the removal, deposit, or concealment thereof. “Circumstances equally consistent with several hypotheses prove neither; and the party having the burden must fail.” Mutual Life Ins. Co. of N. Y. v. Eleanore M. Hess, 5 Cir., 161 F.2d 1, citing Pennsylvania R. R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819. The judgment appealed from is reversed, and the cause is remanded for further and not inconsistent proceedings. Reversed and remanded. In U. S. v. One 1936 Model Ford V-8, Deluxe Coach, 1939, 307 U.S. 219, at pages 234, 235, and 236, 59 S.Ct. 861, at page 868, 83 L.Ed. 1249, the Supreme Court says concerning subsection (b) (3): “A rearrangement of the words of subsection (b) (3) will enlighten its meaning— “ ‘The court shall not allow the [request] — claim—of any claimant for remission or mitigation, if it appears that the interest asserted by [him] — the claimant — arises out of or is in any way subject to any contract or agreement under which any person having a record or reputation for violating laws of the United States or of any States relating to liquor has a right with respect to such vehicle or aircraft, unless and until he [the claimant] proves that before [he] —such claimant — acquired his interest, or s'uch other person acquired his right under such contract or agreement, whichever occurred later, [he] — the claimant — - Ms officer or" }, { "docid": "12803948", "title": "", "text": "GILLIAM, District Judge. This cause came on to be heard before the undersigned United States District Judge at Fayetteville, North Carolina, on September 21, 1955, upon the Libel of Information filed herein on April 8, 1955, and the petition for mitigation of forfeiture filed by the- Henry Vann Company, Inc., of Clinton, North Carolina, intervenor-claimant, on May 9, 1955. We find from the evidence produced at the above mentioned hearing the following sequence of events and circumstances leading up to the claimant’s plea for a mitigation of the forfeiture: Therio Barefoot is a notorious bootlegger of Johnston County, North Carolina. His reputation with state and federal enforcement officers could hardly be worse, His record for violation of the state and federal liquor laws goes back to 1929. His habitual offenses are common knowledge in the rural area where he lives, and in surrounding communities. In August, 1954, Therio purchased the Ford Victoria that is the subject of this suit. Title was taken in the name of his sixteen-year-old daughter, who admittedly has no record or reputation for liquor law violations. Neither did she at the time have a driver’s license or any source of income. To secure the purchase price of the car, a title retention note was executed to the First-Citizens Bank and Trust Company of Benson, North Carolina. Therio managed the entire transaction, both the purchase and the financing. He signed the note as endorser, and he also made the payments. The relationship of the parties, the Bank’s past dealings with Therio, the attendant circumstances taken as a whole — all point to the conclusion that the Bank knew or was purposely blind in refusing to see that Therio was the true purchaser of the automobile and that his daughter was only a straw retainer of an empty title. The facts are clearly distinguishable from those of United States v. One 1936 Model Ford V-8 DeLuxe Coach, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249, and the cases following that decision. Neither the Bank nor the seller could have in good faith escaped the obvious fact that" }, { "docid": "6058710", "title": "", "text": "acquired his interest, or such other person acquired his right under such contract or agreement, whichever occurred later, the claimant, his officer or agent, was informed in answer to his inquiry, at the headquarters of the- sheriff, chief of police, principal Federal internal-revenue officer engaged in the enforcement of the liquor laws, or other -principal local or Federal law-enforcement officer of the locality in which such other person acquired his right under such contract or agreement, of the locality in which such other person then resided, and of each locality in which the claimant has'made any other inquiry as to the character or financial standing of such other person, that such other person had no such record or reputation.” The Act then provides that if the claimant has complied with the procedural requirements, he is entitled to have the forfeiture remitted or mitigated. The statute is remedial'- and should be liberally construed. City Nat. Bank & Trust Co. of Oklahoma City, Old., v. United States, 8 Cir., 163 F.2d 820; United States v. One 1936 Model Ford Coach, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249. It appears that prior to June 4, 1946, an automobile dealer in the village of Ribbing, Minnesota, sold the vehicle in question to Chester E. LeDoux, who resided in Virginia, St. Louis County, Minnesota, for the sum of $1,443. LeDoux paid $675 in cash, leaving a balance of $907.35, which included insurance and finance charges. This sum was payable in monthly installments of $60.49. The balance of the purchase price was represented by a conditional sales contract or chattel mortgage, and claimant in due course purchased the paper, on which at the time in question there was a substantial balance due. Claimant maintained an office in Hibbing and other points in Minnesota. Immediately after purchasing the vehicle LeDoux used it to transport whiskey in connection with his illicit business and continued to so use it up to the time of its seizure by Federal officers. On December 3, 1946, he entered a plea of guilty to an information charging him with having carried" }, { "docid": "7680174", "title": "", "text": "had again commenced the enforcement of Sec. 223, Title 27, U.S.C.A., and Myers had been on their list as a suspect for violation of this law. Hayes et al. v. United States, 10 Cir., 112 F.2d 417. On January 29, 1940, Myers was apprehended within the Northern District of Oklahoma, while operating the automobile in question, containing sixty-three gallons of assorted tax-paid liquors, which on that date had been transported from Joplin, Missouri, to the point where Myers was apprehended. After Myers was apprehended and the automobile seized, but not before, the claimant made inquiry of the Chief of Police of the City of Tulsa, and the Sheriff of Tulsa County, and ascertained that Myers had no record or reputation with them for violating the state or federal liquor laws. The Carriger Motor Company, or the salesmen who sold the, car, had no knowledge or information which would lead them to believe that Myers would use the car for other than lawful purposes. The trial court specifically found that said Myers did not have such reputation for unlawfully dealing in intoxicating liquors as would require further inquiry and investigation by the claimant. On these facts we are asked to decide whether the claimant satisfied the requirements of the act which authorizes the remission and mitigation of forfeitures, Title 27 U.S.C.A. § 40a (b), and particularly subsection (b) (3). Admittedly the claimant has satisfied subsections (b) (1) and (2) , and it remains only to determine whether he has met the requirements of subdivision (3), and precisely the question of what constitutes a reputation within the meaning and context of subsection (b) (3) . The difficult phrasing of subsection (b) (3)- has produced divergent views concerning its meaning. In United States v. One 1936 Model Ford V-8 DeLuxe Coach, 307 U.S. 219, 59 S.Ct. 861, 868, 83 L.Ed. 1249, the Supreme Court abridged and simplified the abstruse language employed in subsection (b) (3) as follows: “The court shall not allow the (request) — claim—of any claimant for remission or mitigation, if it appears that the interest asserted by (him) — the" }, { "docid": "1290218", "title": "", "text": "locality in which the claimant has made any other inquiry as to the character or financial standing of such other person, that such other person had no such record or reputation.” We think it plain from the evidence that the court was justified in finding that the claimant had met the minimum requirements of subsection (b)(1) and (3). Therefore, we need only determine whether claimant satisfied the second condition precedent to remission or mitigation of forfeiture by proving that it had at no time any knowledge or reason to believe that the automobile was being or would be used in violation of laws of the United States or of the state relating to liquor. Section 3617 is a remedial measure, enacted in recognition of the fact that in many instances the drastic remedy of forfeiture may be unjust, and is intended to afford relief to innocent parties where their claims are just and reasonable. In discussing this fundamental purpose of the statute in the light of its legislative history, the Supreme Court in United States v. One 1936 Ford V-8 De Luxe Coach, 307 U.S. 219, at page 236, 59 S.Ct. 861, at page 869, 83 L.Ed. 1249 said: “These facts indicate that Congress intended a reasonable inquiry concerning the bootleg risk should be made in connection with the investigation of financial responsibility. They negative the notion that a wholly innocent claimant at his peril must show inquiry concerning something unknown and of which he had no suspicion. * * * The forfeiture acts are exceedingly drastic. They were intended for protection of the revenues, not to punish without fault. It would require unclouded language to compel the conclusion that Congress abandoned the equitable policy, observed for a very long time, of relieving those who act in good faith and without negligence, and adopted an oppressive amendment not demanded by the tax officials or pointed out in the reports of its committees.” Moreover, in order to carry out this legislative purpose, the section is to be liberally construed by the courts. We are mindful of the fact that we must" }, { "docid": "4646241", "title": "", "text": "3 Cir., 115 F.2d 864. The claimant must then show that it made inquiry at the headquarters of the sheriff, chief of police, principal Federal Internal Revenue officer engaged in the enforcement of the liquor laws, or other principal local or Federal law enforcement officer of the locality in which Buono acquired his right under the contract, of the locality in which Buono then resided, and of each locality in which Midtown Motors has made any other inquiry as to the character or financial standing of Buono, and in each instance learned that Buono had no record or reputation for violating liquor laws: Subsection (3) of 27 U.S.C. § 40a. The subsection requires inquiry of only one of the above-mentioned officers, since they are named in the alternative: United States v. One Ford Coach, supra; United States v. Federal Credit Co., 5 Cir., 117 F.2d 341; United States v. One 1935 Dodge, etc., 2 Cir., 88 F.2d 613. However, it does require inquiry from one such officer (1) in the locality where the sale was consummated, (2) in the locality where the purchaser resides, and (3) in any other locality where the dealer makes an investigation of the character and financial standing of the purchaser, and in each instance, the inquiry must be concerning record and reputation: United States v. One Ford Coach, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249; United States v. Ford Truck, 3 Cir., 115 F.2d 864; Pittsburgh Parking Garages v. United States, 3 Cir., 108 F.2d 35; United States v. Federal Credit Co., 5 Cir., 117 F.2d 341. The testimony produced by Midtown Motors at the hearing showed that the only investigation made at the time of sale, December 16, 1939, was a telephone call by Midtown Motors through a Mr. Brooks to the police department of Clifton, New Jersey, the locality where Buono acquired a right in the car. The police department was asked if Buono had any police record for violation of liquor laws and the reply was in the negative. Trial Record, pages 3, 4, 9, 10. The credit agency of" }, { "docid": "7680183", "title": "", "text": "of universal application. If we adopt a rule which requires the prospective purchaser of commercial paper on automobiles to make inquiry of one of the officers enumerated in the statute in the designated locality, and to secure from him an “answer” that the purchaser of the automobile which 'is the subject of the commercial paper had no record or reputation for violating the liquor laws of the United States or any state, we will have established a simple practical and unburdensome rule to govern intercourse in this important field of commerce, and at the same time we will have adequately and efficiently protected the revenue laws of the United States against the “boot-leg” hazard. Indeed this purpose is manifest in the many adjudicated decisions indicating a rule of strict construction. See Federal Motor Finance v. United States, 8 Cir., 88 F.2d 90. It is made plain that “reputation” within the context and meaning of (b) (3) is the reputation which the purchaser bears with the law enforcement officers in the community in which he resides and where the contract of purchase is made. The duty to make this inquiry is relieved only by the absence of the “reputation” with any of these officers in the event inquiry is not made. Myers, having a reputation with one of the enforcement officers enumerated in (b) (3) as contemplated by the act, and the claimant having failed to make the requisite inquiry, the lower court was powerless to grant the remission, and its finding that Myers had no such “reputation” as would require the claimant to make inquiry, was erroneous. The judgment of the lower court is reversed in accordance with the views herein expressed. United States v. One 1936 Model Ford V-8 De Luxe Coach, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249; Universal Credit Co. v. United States, 4 Cir., 111 F.2d 764; United States v. One Hudson Coupe, 4 Cir., 110 F.2d 300, 302; United States v. One 1936 Model Ford, 4 Cir., 93 F.2d 771; United States v. Automobile Financing, 5 Cir., 99 F.2d 498; C. I. T." }, { "docid": "4646238", "title": "", "text": "provisions of section 204 of the Liquor Law Repeal and Enforcement Act, 27 U.S.C.A. § 40a. This section provides that the court shall not allow a claim for remission and mitigation of a forfeiture unless and until the claimant proves (1) that he has an interest in the vehicle acquired in good faith, (2) That he had at no time any knowledge or reason to believe that it was being or would be used in violation of the laws of the United States or of any state relating to liquor, and (3) if it appears that the interest asserted by the claimant arises out of or is in any way subject to any contract or agreement under which any person having a record or reputation for violating laws of the United States or of any state relating to liquor has a right with respect to such vehicle, unless and until claimant proves that before the claimant acquired his interest or such other person acquired his right, whichever occurred later, the claimant, his officer or agent, was informed in answer to his inquiry at certain headquarters specified that such person had no such record or reputation. The claimant has made out a prima facie case by proving (1) and (2) above. It is then incumbent upon the United States to prove that some person with a record or reputation for violating State or Federal liquor laws has a right in the vehicle. When this is shown by the United States, the burden is then upon the claimant to prove that he made the inquiries of the persons required by (3) above and received an answer that such person had no record or reputation for violating these laws. Pittsburgh Parking Garages v. United States, 3 Cir., 108 F.2d 35; United States v. Ford Truck, 3 Cir., 115 F.2d 864; United States v. One Ford Coach, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249. Assuming that Midtown Motors, the claimant here, has proved (1) and (2) above, subsection (3) must then be considered. The United States called as a witness one William" }, { "docid": "15379164", "title": "", "text": "putting them upon notice, persons dealing with automobile paper in due course and in good faith, may deal with it upon the faith of the ownership being as it appears upon the papers to be; and that, if they have made the prescribed inquiry as to the owners so appearing, the Court, in the exercise of a sound discretion, may remit the forfeiture as to them. We think it plain that the discretion was soundly exercised in this case. The order of remission is affirmed. C. I. T. Corporation v. United States, 4 Cir., 86 F.2d 311, 314; C. I. T. Corporation v. United States, 4 Cir., 89 F. 2d 977; Universal Credit Co. v. United States, 6 Cir., 91 F.2d 388; United States v. One 1935 Dodge Rack-Body Truck, 2 Cir., 88 F.2d 613; United States v. C. I. T. Corp., 2 Cir., 93 F.2d 469; United States v. One 1936 Model Ford, 4 Cir., 93 F.2d 771, affirmed 59 S. Ct. 99, 83 L.Ed. —, Oct. 17, 1938, without opinion by an equally divided court. “If it appears that the interest asserted by the claimant arises out of or is in any way subject to any contract or agreement under which any person having a record or reputation for violating laws of the United States or of any State relating to liquor has a right with respect to such vehicle or aircraft, that,' before such claimant acquired his interest, or such other person acquired his right under such contract or agreement, whichever occurred later, the claimant, his officer or agent, was informed in answer to his inquiry, at the headquarters of the sheriff, chief of police, principal Federal internal-revenue officer engaged in the enforcement of the liquor laws, or other principal local or Federal law-enforcement officer of the locality in which such other person acquired his right under such contract or agreement. of the locality in which such other person then resided, and of each locality in which the claimant has made any other inquiry as to the character or financial standing of such other person, that such" }, { "docid": "7680175", "title": "", "text": "reputation for unlawfully dealing in intoxicating liquors as would require further inquiry and investigation by the claimant. On these facts we are asked to decide whether the claimant satisfied the requirements of the act which authorizes the remission and mitigation of forfeitures, Title 27 U.S.C.A. § 40a (b), and particularly subsection (b) (3). Admittedly the claimant has satisfied subsections (b) (1) and (2) , and it remains only to determine whether he has met the requirements of subdivision (3), and precisely the question of what constitutes a reputation within the meaning and context of subsection (b) (3) . The difficult phrasing of subsection (b) (3)- has produced divergent views concerning its meaning. In United States v. One 1936 Model Ford V-8 DeLuxe Coach, 307 U.S. 219, 59 S.Ct. 861, 868, 83 L.Ed. 1249, the Supreme Court abridged and simplified the abstruse language employed in subsection (b) (3) as follows: “The court shall not allow the (request) — claim—of any claimant for remission or mitigation, if it appears that the interest asserted by (him) — the claimant — arises out of or is in any way subject to any contract or agreement under which any person having a record or reputation for violating laws of the United States or of any State relating to liquor has a right with respect to such vehicle or aircraft, unless and until he (the claimant) proves that before (he) ' — such claimant' — acquired his interest, or such other person acquired his right under such contract or agreement, whichever occurred later, (he) — the claimant — his officer or agent, was informed in answer to his inquiry, at (certain headquarters specified in the alternative) as to the character or financial standing of such other person, that such other person had no such record or reputation.” The purpose of this legislation was remedial and enacted for the benefit of those positioned like the claimant here. Upon its enactment, for the first time the power of remission or mitigation was vested in the courts, but jurisdiction to remit or mitigate was clearly conditioned upon compliance with" }, { "docid": "2710339", "title": "", "text": "by statute. If he wishes to take the risk of a forfeiture, he may decline to make any investigation; in any case, he may make that investigation that he considers the nature of the risk to require, and to this extent the size and population of the vicinity may influence his judgment; but to exonerate himself entirely from any possible liability in event of forfeiture, each of the conditions precedent must be complied with by him. Under its settled construction, the statute imposed upon claimant the duty to make inquiry from only one of the several officers named, but required such inquiries to be made from officers in authority in each of the localities mentioned. It was therefore required of the claimant to make inquiry of some officer named by the statute having jurisdiction over the place of residence of the purchaser. McDaniel held no office in Shipman, and no inquiry was made of any other officer. Because the claimant failed to take the precautions imposed by the statute as conditions precedent to the right of the district court to remit the forfeiture, the judgment is reversed, and the cause is remanded to the district court for further proceedings not inconsistent with this opinion. 27 U.S.C.A., 49 Stat. 878. United States v. One 1936 Model Lafayette Coupe Automobile, D.C., 14 F.Supp. 1003; United States v. C. I. T. Corp., 2 Cir., 93 F.2d 469; United States v. 1938 Buick Sedan, D.C., 24 F.Supp. 739. United State v. National Discount Corp., 7 Cir., 104 F.2d 611; United States v. One 1938 Model Chevrolet Coach, 5 Cir., 106 F.2d 985; United States v. One Hudson Coupe, 4 Cir., 110 F.2d 300; Universal Credit Co. v. United States, 4 Cir., 111 F.2d 764; United States v. Ford Truck, etc., 3 Cir., 115 F.2d 864. United States v. One 1935 Dodge Rack-Body Truck, 2 Cir., 88 F.2d 613; United States v. One 1936 Model Ford V-8 De Luxe Coach, 4 Cir., 93 F.2d 771; Id., 305 U.S. 564, 59 S.Ct. 99, 83 L.Ed. 555; Id., 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249;" }, { "docid": "13513551", "title": "", "text": "further and not inconsistent proceedings. Reversed and remanded. In U. S. v. One 1936 Model Ford V-8, Deluxe Coach, 1939, 307 U.S. 219, at pages 234, 235, and 236, 59 S.Ct. 861, at page 868, 83 L.Ed. 1249, the Supreme Court says concerning subsection (b) (3): “A rearrangement of the words of subsection (b) (3) will enlighten its meaning— “ ‘The court shall not allow the [request] — claim—of any claimant for remission or mitigation, if it appears that the interest asserted by [him] — the claimant — arises out of or is in any way subject to any contract or agreement under which any person having a record or reputation for violating laws of the United States or of any States relating to liquor has a right with respect to such vehicle or aircraft, unless and until he [the claimant] proves that before [he] —such claimant — acquired his interest, or s'uch other person acquired his right under such contract or agreement, whichever occurred later, [he] — the claimant — - Ms officer or agent, was informed in answer to Ms inquiry, at [certain headquarters specified in the alternative] as to the character or financial standing of such other person, that such other person had no such record or reputation.’ ” United States v. One 1936 Model Ford V-8, De Luxe Coach, Commercial Credit Co., Claimant, 1939, 307 U.S. 219, 226, 59 S.Ct. 861, 83 L.Ed. 1249: “If any claimant has been negligent or in good conscience ought not to be relieved, the court should deny his application.” United States v. One Saxon Automobile, 4 Cir., 1919, 257 F. 251, 252. 7 Hughes, Federal Practice, sec. 4635, p. 277. United States v. One Kissel Touring Automobile (San Francisco Securities Corp., Claimant), D.C., 289 F. 120, aff’d, 9 Cir., 296 F. 688. McCORD, Circuit Judge (specially concurring). I am in full accord with the view that the defense that the car was stolen should have been tried, and for this reason I concur in the reversal and remand of the case. I do not agree that the evidence was insufficient" }, { "docid": "8894083", "title": "", "text": "HUTCHESON, Chief Judge. Appealing from a judgment of remission entered under Section 3617, Title 18 U.S. C.A., the United States is here insisting that the stipulation on which the question was tried below showed that claimant was within, but not in compliance with, subsection (b) (3) of the section. The appellee, relying upon: the stipulation showing that on the afternoon of June 16, 1950, claimant loaned the automobile in question “in good faith not knowing, or having any reason to believe, that the loanee would use the automobile” in violation of the law; the decision of the Supreme Court in United States v. One Model Ford, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249; and the carefully stated reasoning of the district judge in support of his judgment; insists that subsection (b)(3) is without application. Appellant, stating that there is one question for consideration thus poses it: “Is a dealer in automobiles, who lends an automobile to a customer having at the time a reputation for violating laws of the United States and a State relating to liquor, required to make the ‘bootleg hazard’ investigation in accordance with Section 3617(b) (3) of Title 18, U.S.C.A. before the Court would be authorized to remit a forfeiture of the automobile ?” Appellee, not taking issue with this statement of the question except to suggest that it would be more accurately put if the reputation were particularized as it appears set out in stipulation six, note \"2, accepts appellant’s challenge to debate it on those grounds and urges with confidence that the district judge properly answered it in the negative and his decision must be affirmed. We agree with appellee. Because the district judge has carefully canvassed the question and as carefully given his reasons for his answer, and because we are in general agreement not only with the result he reached but with the reasons given by him, we will not unduly extend this opinion. .It will suffice for us to here reaffirm the obligatory nature and force of the conditions fixed in subsection (b) and the necessity for compliance with" }, { "docid": "5790082", "title": "", "text": "clear that the District Court had no authority to remit or mitigate the forfeiture. Indeed, the language of section 3617 would seem to compel this conclusion. This section prescribes three conditions precedent to remission or mitigation and the discretionary power which it vests in the trial court becomes operative only when the statutory conditions have been fulfilled. In the instant proceeding it is plain that the interveners did not comply with the third condition, specified in subsection (b)(3). It is true that claimants made the requisite inquiry as to the owners record and reputation from one or more of the officers named in clause (3) but what claimants and the trial judge have both apparently overlooked is the significant requirement that the answer to such inquiry must be in the negative, that is, that the person has no such record or reputation as a liquor violator. As was pointed out in United States v. One Hudson Coupe, 4 Cir., 110 F.2d 300, 302, both record and reputation are necessary subjects of inquiry and information, and “it should by now be an elementary proposition that subsection (d) of this statute grants to the trial court discretion to refuse or grant remission or mitigation only when the statutory conditions have been fulfilled.” See United States v. One 1936 Model Ford V-8 De Luxe Coach, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249; United States v. National Discount Corporation, 7 Cir., 104 F.2d 611, 124 A.L.R. 283; Universal Credit Co. v. United States, 4 Cir., 111 F.2d 764; United States v. One 1937 La Salle Sedan Automobile, etc., 10 Cir., 116 F.2d 356; United States v. One 1941 Model Ford Coach Motor No. 18-60540108, 5 Cir., 138 F.2d 506; Kinston Auto Finance Co. v. United States, 4 Cir., 182 F.2d 543. The trial court found that Davis had a criminal record but apparently attached slight significance to its finding because the conviction was almost four years old and was outweighed by evidence of present reputation as a law abiding citizen. We cannot agree with the trial Court that this record was too" }, { "docid": "12803949", "title": "", "text": "reputation for liquor law violations. Neither did she at the time have a driver’s license or any source of income. To secure the purchase price of the car, a title retention note was executed to the First-Citizens Bank and Trust Company of Benson, North Carolina. Therio managed the entire transaction, both the purchase and the financing. He signed the note as endorser, and he also made the payments. The relationship of the parties, the Bank’s past dealings with Therio, the attendant circumstances taken as a whole — all point to the conclusion that the Bank knew or was purposely blind in refusing to see that Therio was the true purchaser of the automobile and that his daughter was only a straw retainer of an empty title. The facts are clearly distinguishable from those of United States v. One 1936 Model Ford V-8 DeLuxe Coach, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249, and the cases following that decision. Neither the Bank nor the seller could have in good faith escaped the obvious fact that the notorious violator, and not his innocent daughter, was the true purchaser of the car in question. Therefore, the Bank is bound by the unfavorable report it would have received to the statutory inquiry about Therio’s record and reputation. No inquiry was made. Indeed we may surmise that the character of the true purchaser was known to his banker without the need of inquiry. Cf. United States v. One Studebaker Coupe, 1940 Model, D.C., 39 F.Supp. 250. Officers testified that during, the months that followed they frequently saw the car being driven in Benson and the surrounding countryside by Sherwood Barefoot, the eighteen-year-old son of Therio. Sherwood, or “Little Dick” as he is commonly called, also has a record and reputation for whiskey. He was first convicted in this court in 1953. On December 13, 1954, Little Dick and one Leroy Joyner were apprehended in Benson. They were attempting to remove from the car eleven one-half gallon jars of non-taxpaid whiskey. We conclude that the ear was being used in violation of the Internal Revenue" }, { "docid": "2710340", "title": "", "text": "of the district court to remit the forfeiture, the judgment is reversed, and the cause is remanded to the district court for further proceedings not inconsistent with this opinion. 27 U.S.C.A., 49 Stat. 878. United States v. One 1936 Model Lafayette Coupe Automobile, D.C., 14 F.Supp. 1003; United States v. C. I. T. Corp., 2 Cir., 93 F.2d 469; United States v. 1938 Buick Sedan, D.C., 24 F.Supp. 739. United State v. National Discount Corp., 7 Cir., 104 F.2d 611; United States v. One 1938 Model Chevrolet Coach, 5 Cir., 106 F.2d 985; United States v. One Hudson Coupe, 4 Cir., 110 F.2d 300; Universal Credit Co. v. United States, 4 Cir., 111 F.2d 764; United States v. Ford Truck, etc., 3 Cir., 115 F.2d 864. United States v. One 1935 Dodge Rack-Body Truck, 2 Cir., 88 F.2d 613; United States v. One 1936 Model Ford V-8 De Luxe Coach, 4 Cir., 93 F.2d 771; Id., 305 U.S. 564, 59 S.Ct. 99, 83 L.Ed. 555; Id., 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249; United States v. O’Dea Finance Co., 8 Cir., 111 F.2d 358; United States v. One Studebaker Coach, D.C., 24 F.Supp. 76; United States v. One Ford Coupe, D.C., 24 F.Supp. 74." }, { "docid": "7680184", "title": "", "text": "and where the contract of purchase is made. The duty to make this inquiry is relieved only by the absence of the “reputation” with any of these officers in the event inquiry is not made. Myers, having a reputation with one of the enforcement officers enumerated in (b) (3) as contemplated by the act, and the claimant having failed to make the requisite inquiry, the lower court was powerless to grant the remission, and its finding that Myers had no such “reputation” as would require the claimant to make inquiry, was erroneous. The judgment of the lower court is reversed in accordance with the views herein expressed. United States v. One 1936 Model Ford V-8 De Luxe Coach, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249; Universal Credit Co. v. United States, 4 Cir., 111 F.2d 764; United States v. One Hudson Coupe, 4 Cir., 110 F.2d 300, 302; United States v. One 1936 Model Ford, 4 Cir., 93 F.2d 771; United States v. Automobile Financing, 5 Cir., 99 F.2d 498; C. I. T. Corp. v. United States, 4 Cir., 86 F.2d 311; United States v. C. I. T. Corp., 2 Cir., 93 F.2d 469; United States v. National Discount Corp., 7 Cir., 104 F.2d 611; United States v. McArthur Chev. Co., 5 Cir., 117 F.2d 343, decided January 29, 1941. See, also, United States v. Ford Truck, 3 Cir., 115 F.2d 864. See Universal Credit Co. v. United States, 4 Cir., 111 F.2d 764. PHILLIPS, Circuit Judge (dissenting). It was stipulated that Myers, prior to the purchase of the automobile, had a reputation with the Alcohol Tax Unit Agents of the Bureau of Internal Revenue, Tulsa, Oklahoma, for violating the laws of the United States relating to liquor. There was no other evidence tending to show that Myers had a reputation for violating the laws of the United States or of any state relating to liquor. From the stipulation it appears that the basis of the reputation with the agents was a prior arrest for a transaction which did not constitute a violation of federal law and a" }, { "docid": "5790083", "title": "", "text": "“it should by now be an elementary proposition that subsection (d) of this statute grants to the trial court discretion to refuse or grant remission or mitigation only when the statutory conditions have been fulfilled.” See United States v. One 1936 Model Ford V-8 De Luxe Coach, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249; United States v. National Discount Corporation, 7 Cir., 104 F.2d 611, 124 A.L.R. 283; Universal Credit Co. v. United States, 4 Cir., 111 F.2d 764; United States v. One 1937 La Salle Sedan Automobile, etc., 10 Cir., 116 F.2d 356; United States v. One 1941 Model Ford Coach Motor No. 18-60540108, 5 Cir., 138 F.2d 506; Kinston Auto Finance Co. v. United States, 4 Cir., 182 F.2d 543. The trial court found that Davis had a criminal record but apparently attached slight significance to its finding because the conviction was almost four years old and was outweighed by evidence of present reputation as a law abiding citizen. We cannot agree with the trial Court that this record was too remote. Nor do we subscribe to the view that Congress did not intend that this statute should be literally complied with. See United States v. One 1936 Model Ford V-8 De Luxe Coach, supra. The court below believed that the claimants acted in perfect good faith and doubtless was impressed by the inequity which would result from a strict enforcement of the literal provisions of the statute. But we are dealing here with power not equity arid since we have no power to relax the express provisions of the statute, it follows that the District Court should have denied claimants’ petition for remission. We notice now briefly the question of mootness which the appellees have raised in their motion to dismiss. It is their contention that the proceedings herein are in rem and, as the res has been delivered to appellees pursuant to an order of court, the subject matter of the controversy is no longer under the jurisdiction of the court. The contention is clearly without merit for several reasons, only one of which" }, { "docid": "23109209", "title": "", "text": "the purchaser and had received no information indicating that he was engaged in violation of the liquor laws. The failure of the claimant resided solely in the fact that it was not informed in answer to its inquiry, that the purchaser had no reputation for violating the laws of the United States or of any State relating to liquor. Inquiry was made of the sheriff of Forsyth County and of the chief of police of Winston-Salem, North Carolina, where the purchaser lived, and also of the investigator in charge of the Alcohol Tax Unit at Charlotte, North Carolina. The investigator in charge made no response to the inquiry. The sheriff and the chief of police answered that the purchaser had no record, but they said nothing about his reputation. The replies received would have been sufficient to confer jurisdiction upon the court had they also stated that the purchaser had no such reputation; but in the absence of the receipt by the claimant of favorable information on this point, the court was without power to grant the claimant’s petition. As we pointed out in United States v. One Hudson Coupe, 110 F.2d 300, 302, both record and reputation are necessarily subjects of inquiry and information, and “it should by now be an elementary proposition that subsection (d) of this statute grants to the trial court discretion to refuse or grant remission or mitigation only when the statutory conditions have been fulfilled”. See also, United States v. One Ford Coach, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249; United States v. One 1936 Model Ford, 4 Cir., 93 F.2d 771; United States v. Automobile Financing, Inc., 5 Cir., 99 F.2d 498; C. I. T. Corp. v. United States, 4 Cir., 86 F.2d 311; United States v. C. I. T. Corp., 2 Cir., 93 F.2d 469; United States v. National Discount Corp., 7 Cir., 104 F.2d 611. The plaintiff contends that it acted with due diligence and perfect good faith, since it had no information as to the bad record or reputation of the purchaser, and made all of the inquiries" } ]

[ { "docid": "9822778", "title": "", "text": "identity). The first element of the Turner test directs us to (1) determine whether the Department’s regulation is legitimate and neutral; and (2) assess whether there is a rational relationship between the governmental objective and the regulation. We hold that tying the receipt of subscription non-profit newsletters to postal service rate classifications is not rationally related to any legitimate penological interest put forth by the Department. In Frost v. Symington, 197 F.3d 348 (9th Cir.1999), we clarified that the level of scrutiny to be applied to the decisions of prison administrators depends on the circumstances in each case: When the inmate presents sufficient ... evidence that refutes a common-sense connection between a legitimate objective and a prison regulation, Walker [v. Sumner, 917 F.2d 382 (9th Cir.1990),] applies, and the state must present enough counter-evidence to show that the connection is not so remote as to render the policy arbitrary or irrational. On the other hand, when the inmate does not present enough evidence to refute a common-sense connection between a prison regulation and the [asserted] objective ..., Mauro [v. Arpaio, 188 F.3d 1054 (9th Cir.1999),] applies and, presuming the governmental objective is legitimate and neutral, Turner’s first prong is satisfied. Id. at 357 (internal quotation marks and citations omitted). Frost thus commands that if Publisher and Prisoners do not present sufficient evidence to refute a common-sense connection between the Department regulation and its stated objectives, “prison officials need not prove that the banned material actually caused problems in the past, or that the materials are ‘likely’ to cause problems in the future.” Mauro, 188 F.3d at 1060. The only question is whether prison administrators reasonably could have thought the regulation would advance legitimate penological interests. See id; Casey v. Lewis, 4 F.3d 1516, 1521 (9th Cir.1993). If Publisher and Prisoners refute the common-sense connection, however, the Department must demonstrate that the relationship is not so “remote as to render the policy arbitrary or irrational.” Mauro, 188 F.3d at 1060 (quoting Turner, 482 U.S. at 89-90, 107 S.Ct. 2254). The first purported justification for the regulation is that standard mail often" } ]

[ { "docid": "17988667", "title": "", "text": "objective and the regulation, the level of scrutiny applied to the judgment of prison officials “depends on the circumstances in each case.” Prison Legal News, 238 F.3d at 1150. If the inmate presents sufficient evidence to “refute[ ] a commonsense connection between a legitimate objective and a prison regulation, ... the state must present enough counter-evidence to show that the connection is not so ‘remote as to render the policy arbitrary or irrational.’ ” Frost v. Symington, 197 F.3d 348, 857 (9th Cir.1999) (quoting Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir.1999) (en banc)); see also Johnson v. Cal., 321 F.3d 791, 801-02 (9th Cir.2003) (discussing Frost). If, however, the inmate does not present evidence sufficient to refute a common-sense connection between the regulation and the government objective, “prison officials need not prove that the banned material actually caused problems in the past, or that the materials are ‘likely’ to cause problems in the future.” Mauro, 188 F.3d at 1060. “The only question is whether prison administrators reasonably could have thought the regulation would advance legitimate peno-logical interests.” Prison Legal News, 238 F.3d at 1150. We agree with the district court that the evidence submitted by both Ashker and CDC “refutes any common-sense connection between the book label policy and PBSP’s legitimate goals of ensuring against contraband and providing prison safety.” Ashker, 224 F.Supp.2d at 1260. When the inmate presents such evidence, the state is required to “ ‘present enough counter-evidence to show that the connection is not so remote as to render the policy arbitrary or irrational.’ ” Prison Legal News, 238 F.3d at 1150(quoting Frost, 197 F.3d at 357). CDC has failed to do so. First, CDC already requires that books be sent directly from approved vendors. As the district court reasoned, prison staff can easily determine whether packages have been sent directly by vendors or have been sent to a third party first by checking address labels and invoices. See Ashker, 224 F.Supp.2d at 1261. If the package had been sent to a third party, who then sent the package to the prisoner, the vendor’s address" }, { "docid": "16527763", "title": "", "text": "the Act, the Second Circuit had held that on an equal protection challenge, ... the reasonableness of the prison rules and policies must be examined to determine whether distinctions made between religious groups in prison are reasonably related to legitimate penological interests. Benjamin v. Coughlin, 905 F.2d at 575 (citation omitted). The Second Circuit had, thus, adopted the O’Lone/Tumer reasonableness test in assessing inmates’ Fourteenth Amendment equal protection claims concerning the free exercise of their religion. Whether this standard survives the passage of the Act need not be decided on the instant motion since I conclude that even under the less rigorous reasonableness test, plaintiffs have satisfied their preliminary injunction burden. Plaintiffs complain that Directive #4202 improperly distinguishes between religious medals, crosses and crucifixes and beads. Plaintiffs argue that this distinction is not reasonable because crosses and crucifixes can easily be used as weapons and because the prohibition on beads does not ensure the reduction or elimination of gang activity or violence. Plaintiffs maintain, and invite this Court to conclude, that defendants’ actual rationale for these distinctions is tainted by discriminatory motives. Defendants maintain that DOCS’ distinction is based on defendants’ conclusions that colored beads are used by gangs to publicly identify themselves and that they facilitate gang activities. I have accepted this justification and accord the appropriate deference due the defendants’ assessment of the gang situation in New York’s prisons and gang use of beads. There is nothing now before me to suggest that religious medals and crosses, however, are being used or have been used by prison gangs for their notorious activities. Accepting defendants’ distinction between crosses and beads does not conclude the equal protection inquiry. While it is reasonable to treat differently, even preferably, items which, until now, have not been associated with prison gangs and do not- impinge on prison security, it strains the outer boundaries of “reasonableness” to prohibit possession of all Santería beads, including black and white or gold beads, when rosary and Dhikr beads are not so burdened. Defendants have not proffered a valid reason for such a distinction, and on this record" }, { "docid": "5971755", "title": "", "text": "challenge is not to a particular application of the regulation but to the regulation itself, which they contend is drafted in such a manner that unconstitutional applications must result. Each alleged unconstitutional application is not treated as a separate grievance but rather as evidence that the regulation is not reasonably related to legitimate ■ penological interests, either as interpreted or applied by defendants. As defendants themselves argue, evaluation of the constitutionality of a challenged regulation must take into account the construction and consequent application of the enforcing body. See, e.g., Amatel v. Reno, 1998). 156 F.3d 192 (D.C.Cir.1998). B. First Amendment 1. The Turner test Several United States Courts of Appeals have held that prisoners’ access to sexually explicit material may be restricted without violating the First Amendment because such restrictions are rationally related to the legitimate penological interests of security, rehabilitation and the prevention of harassment of female guards. See Frost v. Symington, 197 F.3d 348 (9th Cir.1999); Mauro v. Arpaio, 188 F.3d 1054 (9th Cir.1999) (en banc); Waterman v. Farmer, 183 F.3d 208 (3d Cir.1999); Amatel, 156 F.3d 192; Oteen v. Wille, 117 F.3d 1235 (11th Cir.1997). In each case, the court of appeals applied a version of the test articulated by the Supreme Court in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), to determine the validity of prison regulations that allegedly impinge upon the exercise of constitutionally protected rights. Under Turner, a prison regulation does not infringe impermissibly upon rights protected by the First Amendment so long as the regulation is “reasonably related to legitimate penological interests.” Id. at 89, 107 S.Ct. 2254; Thornburgh v. Abbott, 490 U.S. 401, 409, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). To decide whether a challenged regulation is reasonably related to legitimate penological interests, courts apply a four-part test. (Several courts have acknowledged that the four parts are unequal and tend to blend into one another. See, e.g., Waterman, 183 F.3d at 213-14; Amatel, 156 F.3d at 196). First, the court examines the scope of the challenged regulation or statute, its purported content-neutral objective and" }, { "docid": "10030725", "title": "", "text": "Religious Land Use and Institutionalized Persons Act.” His “claims of an RLUIPA violation [were] without merit,” they argued, given the serious “safety and security” concerns justifying restrictions on religious practice while an inmate was in disciplinary housing. The district court granted summary judgment in favor of appellees. Citing Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir.1997), a religious exercise case litigated before the passage of RLUIPA, the court held that an inmate could prevail on a free exercise claim only by showing that prison officials “burdened the practice of [his] religion by preventing him from engaging in conduct mandated by his religious faith.” The court found the restrictions on Alvarez’s religious exercise were not a “substantial burden on the practice of his religion.” Furthermore, the court held that insofar as officials had produced “sufficient evidence” that the restrictions furthered the “legitimate institutional goals” of maintaining prison safety and security, they did not “rise to the level of a constitutional violation.” STANDARD OF REVIEW A district court’s grant of summary judgment is reviewed de novo. Blanford v. Sacramento County, 406 F.3d 1110, 1114 (9th Cir.2005). “Viewing the evidence in the light most favorable to the nonmoving party ... we must determine whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact.” Galvin v. Hay, 374 F.3d 739, 745 (9th Cir.2004). I. We agree with Alvarez’s contention that summary judgment would have been inappropriate on the available record had RLUIPA’s standard been applied to his religious exercise claim. Under Turner, which governs inmate free exercise claims brought under the First Amendment, prison restrictions will be upheld as long as they are “reasonably related to legitimate penological interests.” Warsoldier v. Woodford, 418 F.3d 989, 997-98 (9th Cir.2005) (quoting Turner, 482 U.S. at 89, 107 S.Ct. 2254). By contrast, RLUIPA disallows policies that impose “a substantial burden on ... religious exercise” unless the burden “furthers ‘a compelling governmental interest,’ and does so by ‘the least restrictive means.’ ” Id. at 994 (quoting 42 U.S.C. § 2000cc-1(a)). The district court’s analysis did not take" }, { "docid": "22230339", "title": "", "text": "have not yet considered whether Turner is limited to the prison context or whether it also applies to matters affecting parolees, certainly many of the reasons justifying prison authorities overriding prisoners rights disappear outside the prison walls. See Felce v. Fiedler, 974 F.2d 1484, 1495-1496 (7th Cir.1992). However, we need not decide that issue for purposes of this appeal. Assuming, without deciding, that Turner applies to all aspects of the case before us, we are required to determine whether there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.” Turner, 482 U.S. at 90, 107 S.Ct. 2254. The Board has, however, repeatedly failed to adduce any justification, rational or not, for its ADA policy. For starters, it presents no justification that we can discern in its briefs. Equally surprising, the Board admitted at oral argument that we would find none in the record: it argued that such omission was immaterial so long as, even at that late stage of proceedings, “we can come up with any reason in our heads” that would justify its policies. To satisfy Turner, the Board must, at the very least, adduce some penological reason for its policy at the relevant stage of the judicial proceedings. “[Considerations advanced to support a restrictive policy [must] be ... sufficiently articulated to permit meaningful ... review.” Walker v. Sumner, 917 F.2d 382, 386 (9th Cir.1990). Thus, at a minimum, the reasons must be urged in the district court. While the Board is correct that the burden rests with the plaintiff to refute the Board’s defense that its actions were peno-logically justified, see Frost v. Symington, 197 F.3d 348, 357 (9th Cir.1999), that defense must at the very least be raised. Here, at oral argument, the Board for the first time referred obtusely to something about “cost” and “administrative” concerns without any explanation whatsoever as to how or in what respect the injunction implicated these matters. Certainly, it did not suggest that the unspecified costs and administrative concerns were any greater than those of any other agency subject to the" }, { "docid": "10562699", "title": "", "text": "regardless of their religious views or beliefs, to keep their hair short and their faces shaven. It is clear from the record that the Grooming Policy was implemented to help eliminate contraband, reduce gang activity, identify inmates, and maintain order in South Carolina’s prisons. There is no suggestion that the Grooming Policy was enacted to burden anyone’s free exercise rights, or was at all motivated because of the religious beliefs or practices of any inmate. Thus, although the Grooming Policy may have an ineidentál effect of preventing the Inmates from wearing their hair and beards as-their religion prescribes, under Smith, the Grooming Policy is a neutral and generally applicable regulation and, therefore, does not violate the Free Exercise Clause. 2 In O’Lone, the Supreme Court held that a prison regulation that impinges on an inmate’s free exercise rights is valid if it is i’easonably related to legitimate penological interests. See O’Lone, 482 U.S. at 349, 107 S.Ct. 2400 (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). We assume for purposes of this case, without deciding, that the Grooming Policy infringes on the Inmates’ sincerely held religious beliefs. The threshold issue is, therefore, whether the Grooming Policy is reasonably related to legitimate penological interests. O’Lone identified several factors relevant to this reasonableness determination: (1) a regulation must have a logical connection to legitimate governmental interests invoked to justify it; (2) the inmates should have alternative means of exercising their religious rights; and (3) accommodating the inmates’ rights should not severely impact other inmates, prison officials and allocation of prison resources generally. See id. at 350-53, 107 S.Ct. 2400. The Grooming Policy at issue in this case satisfies each of these factors. First, the record is clear that the Grooming Policy was enacted to suppress contraband, limit gang activity, maintain discipline and security, and prevent inmates from quickly changing their appearance. It cannot be gainsaid that these are legitimate— indeed, compelling — governmental and peno-logical interests. Moreover, the Grooming Policy logically serves those interests because inmates may no longer hide contraband in long hair or" }, { "docid": "16527762", "title": "", "text": "facility level, absolutely not, which got me into a position to put out this policy. I finally said to the system, this is our policy. I didn’t put myself in to make a determination on a religious tenet. I wanted to make sure that the policy at the facility — not to slow down the process — that I knew was being permitted in the facility. The problem is that, for maybe 14 years or whatever time plaintiff had beads, the facility chaplain or the security supervisors were not following the process. In order to control the gang-problem and to get control over the beads, I said, I have to say that I want to look at every one myself. TT. 37-38. In summary, plaintiffs have met their burden of showing a likelihood of success or a serious question on the merits, albeit on the narrow and discreet issue of the deprivation of their beads pending completion of the DOCS approval process, to justify preliminary relief. VI. Fourteenth Amendment Violation Prior to the enactment of the Act, the Second Circuit had held that on an equal protection challenge, ... the reasonableness of the prison rules and policies must be examined to determine whether distinctions made between religious groups in prison are reasonably related to legitimate penological interests. Benjamin v. Coughlin, 905 F.2d at 575 (citation omitted). The Second Circuit had, thus, adopted the O’Lone/Tumer reasonableness test in assessing inmates’ Fourteenth Amendment equal protection claims concerning the free exercise of their religion. Whether this standard survives the passage of the Act need not be decided on the instant motion since I conclude that even under the less rigorous reasonableness test, plaintiffs have satisfied their preliminary injunction burden. Plaintiffs complain that Directive #4202 improperly distinguishes between religious medals, crosses and crucifixes and beads. Plaintiffs argue that this distinction is not reasonable because crosses and crucifixes can easily be used as weapons and because the prohibition on beads does not ensure the reduction or elimination of gang activity or violence. Plaintiffs maintain, and invite this Court to conclude, that defendants’ actual rationale for" }, { "docid": "22792351", "title": "", "text": "Cir.1999). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc). III. ANALYSIS A. Did the District Court Err in Finding the OSP Mail Regulation Prohibiting Bulk Rate, Third, and Fourth Class Mail Constitutional? Morrison first argues that OAR 291-131-025(6) unconstitutionally burdens his First Amendment rights. OAR 291-131-025(6) states that: “Mail shall be required to be sent by first or second class postage. Bulk rate, third and fourth class mail is prohibited.” OAR 291-131-025(6) (1993). Morrison asserts that this regulation is unconstitutional because it prevents him from receiving his pre-paid subscription to Montana Outdoors magazine, a for-profit, subscription publication, which is typically mailed bulk rate, third, or fourth class. 1. The Four-Part Test Set Forth in Turner v. Safley “Prison walls do not form a bar•rier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). “Thus, when a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect [prisoners’] constitutional rights.” Mauro v. Arpaio, 188 F.3d 1054, 1058 (9th Cir.1999) (en banc) (internal citation omitted). “Nevertheless, prisoners’ constitutional rights are subject to substantial limitations and restrictions in order to allow prison officials to achieve legitimate correctional goals and maintain institutional security.” Walker v. Sumner, 917 F.2d 382, 385 (9th Cir.1990) (internal citations omitted). “In Turner v. Safley, the Supreme Court set forth the standard for evaluating prisoners’ constitutional claims.” Id. Turner held that “a regulation that impinges upon a prisoner’s constitutional rights is valid if the regulation ‘is reasonably related to legitimate penological interests.’ ” Frost v. Symington, 197 F.3d 348, 354 (9th Cir.1999) (quoting Turner, 482 U.S. at 89, 107 S.Ct. 2254). To guide courts in evaluating whether a challenged regulation is reasonably related to legitimate penological interests, Tuner established the following four-part test: (1) whether the regulation is rationally related to" }, { "docid": "23511204", "title": "", "text": "that could fully accommodate[ ] the prisoner’s rights at de minimis cost to valid penological interests.” Turner 482 U.S. at 89-91, 107 S.Ct. 2254 (internal citations and quotation marks omitted). Turners standard also includes a neutrality requirement — “the government objective must be a legitimate and neutral one ... [and] [w]e have found it important to inquire whether prison regulations restricting inmates’ First Amendment rights operated in a neutral fashion.” Id. at 90, 107 S.Ct. 2254; see Freeman v. Texas Dep’t of Criminal Justice, 369 F.3d 854, 860-61 (5th Cir.2004) (“Foremost, TDCJ’s regulation is neutral .... There is no evidence that TDCJ’s policy is targeted toward the Church of Christ, or favors one religious group over another.” (internal quotation marks and citations omitted)). While Turner’s standard encompasses four factors, we have noted that rationality is the controlling factor, and a court need not weigh each factor equally. See Scott v. Miss. Dep’t of Corr., 961 F.2d 77, 81 (5th Cir.1992). Mayfield claims that his free exercise rights were improperly limited in two ways: (1) the TDCJ’s not allowing the Odinist group to assemble for religious services in the absence of an outside volunteer (the “volunteer policy”); and (2) the TDCJ’s preventing the Odinists from personally possessing runestones and accessing rune literature (the “runestones policy”). The district court concluded that no material issues of fact remained as to either claim. We consider each claim under Turner’s standard, analyzing whether the record, when interpreted in a light most favorable to Mayfield, reveals a genuine issue of material fact that precludes summary judgment. 1 We have analyzed the TDCJ’s volunteer policy under Turner’s standard in the past and upheld the policy on each occasion. See Baranowski, 486 F.3d at 121-22; Adkins v. Kaspar, 393 F.3d 559, 565 (5th Cir.2004). Applying Turners four factors to the TDCJ’s outside-volunteer policy in this case, we first note that the policy itself is reasonably related to a legitimate penological interest. The TDCJ’s asserted justifications for the volunteer requirement involve prison security concerns, as well as staff and space limitations. These are valid penological interests. We have recognized" }, { "docid": "22387084", "title": "", "text": "the considerations underlying our penal system.” Id. Accordingly, the Court has held that “a prison regulation imping[ing] on inmates’ constitutional rights ... is valid if it is reasonably related to legitimate penological interests.” Id. at 349, 107 S.Ct. 2400. Thus, in order to allege a constitutional violation based on a free exercise claim, a prisoner-plaintiff must survive a two-step inquiry. First, the prisoner-plaintiff must first show that a prison regulation “substantially burdened ... sincerely-held religious beliefs.” Boles v. Neet, 486 F.3d 1177, 1182 (10th Cir.2007). Consequently, “[t]he first questions in any free exercise claim are whether the plaintiffs beliefs are religious in nature, and whether those religious beliefs are sincerely held.” Snyder v. Murray City Corp., 124 F.3d 1349, 1352 (10th Cir.1997). Second, prison officials-defendants may “identify] the legitimate penological interests that justified] the impinging conduct.” Boles, 486 F.3d at 1182. At that point, courts balance the factors set forth in Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), to determine the reasonableness of the regulation: (1) whether a rational connection exists between the prison policy regulation and a legitimate governmental interest advanced as its justification; (2) whether alternative means of exercising the right are available notwithstanding the policy or regulation; (3) what effect accommodating the exercise of the right would have on guards, other prisoners, and prison resources generally; and (4) whether ready, easy-to-implement alternatives exist that would accommodate the prisoner’s rights. Boles, 486 F.3d at 1181. The district court prematurely dismissed Kay’s claim at step one. The district court denied his claim because Kay failed to sufficiently plead: (1) what religion he practices, (2) whether his religious beliefs are sincerely held, and (3) how tarot cards, incense, and religious books are necessary to the practice of his religion. This misconstrues the complaint. First, Kay’s complaint clearly identifies his religion as “Wicca.” Contrary to the district court’s statement that his complaint only mentions Wicca once in reference to “Wiccan books,” the complaint references Wicca four times. See Kay Compl., R., Doc. 3, at 5, 7. In two of those instances, Kay refers to" }, { "docid": "6996144", "title": "", "text": "court’s conclusion that a defendant is entitled to qualified immunity de novo. Farmer v. Perrill, 288 F.3d 1254, 1259 (10th Cir.2002). A. First Amendment Claim Hammons argues that his First Amendment right to freely exercise his religion was violated by appellees’ 1999 Policy, which prohibited in-cell use and possession of prayer oils while allowing in-cell use and possession of imitation colognes and perfumes. Hammons does not argue that the 2002 Policy violates his First Amendment right to freely exercise his religion. Therefore, this court only rules on the constitutionality of the 1999 Policy. The Free Exercise Clause mandates that prison authorities afford prisoners reasonable opportunities to exercise their sincerely held religious beliefs. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). Inmates’ free exercise rights are, however, subject to prison restrictions rationally related to legitimate penological interests. Id. at 349, 107 S.Ct. 2400. In this case, appellees had legitimate penological inter ests in preventing the use and possession of illegal drugs, in maintaining prison order and safety, in crime deterrence, and in inmate rehabilitation. See Turner v. Safley, 482 U.S. 78, 91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). In addition, appellees’ policies were rationally related to their valid penological interests. In determining whether a governmental policy is rationally related to a legitimate interest, this court weighs several factors. O’Lone, 482 U.S. at 350, 107 S.Ct. 2400. First, the court considers whether there is a logical connection between the prison regulation and the asserted penological interest. Id.; Turner, 482 U.S. at 89-91, 107 S.Ct. 2254. Second, the court considers whether alternative means of exercising the religious right in question remain open to inmates. Turner, 482 U.S. at 90, 107 S.Ct. 2254. Third, the court assesses the impact the accommodation of the right in question would have on guards, other inmates, and on the allocation of prison resources. Id. Fourth, the court considers whether any policy alternatives exist that would accommodate the right in question at de minimis cost to the prison. Id. at 91, 107 S.Ct. 2254. Hammons argues that the 1999 Policy" }, { "docid": "18818605", "title": "", "text": "curtailed by the fact of incarceration in the remote prison. In such circumstances, it is necessary to evaluate carefully the justifications proffered by the prison before determining whether the Constitution allows the intrusion into the free exercise right of tfie inmate. We remand this claim so that the district court can make specific factual findings and can engage in a careful balancing of all the Turner factors. III Ward argues that he must be allowed to have candles in his cell to observe certain rituals of his religion. The warden asserts that candles pose a significant fire hazard, and thus under no circumstances are prisoners allowed to have them in their cells. The Turner factors clearly weigh in favor of the prison officials on this claim. The serious safety and security concerns raised by allowing inmates to possess and use candles outweigh the curtailment of Ward’s religious practice. Thus, we conclude that the regulation is reasonably related to a legitimate penological purpose and thus is valid under Ttimer. IV Ward argues that the warden violated his First Amendment rights when it transferred him to Ely on the Sabbath. He asks for an injunction to prevent the prison from transporting him on any Sabbath or Jewish holiday, comprising eighty-eight days in the year. Again the application of the Turner factors leads to the conclusion that the prison’s policy is reasonably related to a legitimate governmental interest. First, the prison has a legitimate penological interest in having a standardized, efficient transportation system. Prisoners are transported for medical, security, and other reasons. According to the warden, the health, safety, and welfare of the prisoners is dependent upon the ability to move prisoners quickly and efficiently when necessary. The prison policy of not guaranteeing that inmates will be transported only on certain days is logically connected to the legitimate government interest in security and efficient transportation. Second, Ward does not contend that the prison intends to transfer him on every Sabbath. Because he can observe most Sabbaths, we conclude that he has alternative means of exercising his religion as contemplated by O’Lone. Third, a" }, { "docid": "21131015", "title": "", "text": "v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987)). A regulation that impinges on an inmate’s First Amendment rights is valid if that regulation “ ‘is reasonably related to legitimate penological interests.’ ” Frost v. Symington, 197 F.3d 348, 354 (9th Cir.1999) (citing Turner, 482 U.S. at 89, 107 S.Ct. 2254). Deterring criminal activity and maintaining prisoner security are legitimate peno-logical interests that justify regulations on prisoner mail. Nordstrom, 762 F.3d at 906; O’Keefe v. Van Boening, 82 F.3d 322, 326 (9th Cir.1996). As discussed above, the evidence shows that Defendant has legitimate penological interests in maintaining institutional security. The abuse of inmates’ right to send and receive legal mail poses a security threat in several ways: it can be used to introduce contraband into ADC’s facilities, to facilitate criminal activity within the prison’s walls, and to facilitate criminal activity on the outside. The legitimate pe-nological interest in mitigating such threats justifies ADC’s legal mail policy and practices. Nordstrom, 762 F.3d at 906; O’Keefe, 82 F.3d at 326. C. Fourteenth Amendment. Nordstrom contends that his Fourteenth Amendment right of access to the courts is violated by Defendant’s policy and practice. He has failed to prove this claim as well. The Fourteenth Amendment guarantees inmates meaningful access to the courts. Ching v. Lewis, 895 F.2d 608, 609 (9th Cir.1990) (citing Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)). This constitutional right “guarantees no particular methodology but rather the conferral of a capability — the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts.” Lewis v. Casey, 518 U.S. 343, 356, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). To bring such a claim, an inmate must establish that he suffered an actual injury, such as an inability to file a complaint or defend against a charge. Id. at 351-53, 116 S.Ct. 2174; see also Jones v. Blanas, 393 F.3d 918, 936 (9th Cir.2004) (affirming grant of summary judgment where inmate “did not allege injury, such as inability to file a complaint or defend against a" }, { "docid": "17988668", "title": "", "text": "advance legitimate peno-logical interests.” Prison Legal News, 238 F.3d at 1150. We agree with the district court that the evidence submitted by both Ashker and CDC “refutes any common-sense connection between the book label policy and PBSP’s legitimate goals of ensuring against contraband and providing prison safety.” Ashker, 224 F.Supp.2d at 1260. When the inmate presents such evidence, the state is required to “ ‘present enough counter-evidence to show that the connection is not so remote as to render the policy arbitrary or irrational.’ ” Prison Legal News, 238 F.3d at 1150(quoting Frost, 197 F.3d at 357). CDC has failed to do so. First, CDC already requires that books be sent directly from approved vendors. As the district court reasoned, prison staff can easily determine whether packages have been sent directly by vendors or have been sent to a third party first by checking address labels and invoices. See Ashker, 224 F.Supp.2d at 1261. If the package had been sent to a third party, who then sent the package to the prisoner, the vendor’s address label and invoice would indicate that fact. Requiring R & R staff to check the address label seems no more burdensome than requiring them to check for the vendor label and the vendor stamp in the appropriate box on the label. CDC has presented no evidence or argument to refute this reasoning. Second, all personal property received by inmates in the mail is searched prior to delivery. CDC contends that these searches are not always effective, pointing out that contraband has been missed due to human error. However, “CDC[has] ar-tieulate[d] no scenario in which the book label policy provides a measure of security not afforded by these routine and mandatory searches.” Id. CDC further argues that the fluoroscope machine does not detect weapons or encrypted messages. That the lack of a book label can act as a sort of “red flag,” alerting prison staff to books sent by non-vendors when their routine search may have missed this fact may be a legitimate concern, but it is a concern that is quite lacking in substantial eviden-tiary" }, { "docid": "1056013", "title": "", "text": "that the defendants’ refusal to permit him to meet with other atheist inmates to study and discuss their beliefs violates the Free Exercise Clause. “ ‘[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.’ ” O’Lone v. Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)); see also Sasnett v. Litscher, 197 F.3d 290, 292 (7th Cir.1999). In the context of the Free Exercise Clause, Kaufman must first establish that his right to practice atheism was burdened in a significant way. See Hernandez v. Comm’n of Internal Revenue, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) (plaintiff must show a “substantial burden” on a “central religious belief or practice” to prevail under the Free Exercise Clause); Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 760 (7th Cir.2003) (collecting cases). He failed utterly to do so. Kaufman introduced no evidence showing that he would be unable to practice atheism effectively without the benefit of a weekly study group. The defendants apparently allow him to study atheist literature on his own, consult informally with other atheist inmates, and correspond with members of the atheist groups he identified, and Kaufman offered nothing to suggest that these alternatives are inadequate. Moreover, an inmate is not entitled to follow every aspect of his religion; the prison may restrict the inmate’s practices if its legitimate penological interests outweigh the prisoner’s religious interests. Tarpley, 312 F.3d at 898; Canedy v. Boardman, 91 F.3d 30, 33 (7th Cir.1996). The defendants submitted an affidavit stating that allowing any group of inmates to congregate for a meeting raises security concerns and requires staff members to supervise the group. Prison officials unquestionably have a legitimate interest in maintaining institutional security, see, e.g., Lindell v. Frank, 377 F.3d 655, 658-59 (7th Cir.2004), and we cannot say that their denial of Kaufman’s request for a study group was not rationally related to that interest. Accordingly," }, { "docid": "22832331", "title": "", "text": "the summary judgment record demonstrating that there is a material fact issue concerning the essential elements of its case for which it will bear the burden of proof at trial.’ ” Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir.1996) (en banc) (quoting Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.1994) (citations omitted)). “However, the non-movant cannot satisfy this burden with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Freeman, 369 F.3d at 860. III. DISCUSSION Baranowski’s appeal raises three challenges to the district court’s summary judgment ruling: the dismissal of his free exercise claim; the dismissal of his equal protection claim; and the dismissal of his RLUIPA claim. Baranowski also contends that he was wrongly denied appointment of counsel, an evidentiary hearing, and the right to his day in court. We address each issue in turn. A. Free Exercise Claim Baranowski argues that Defendants have impeded his free exercise of religion under the First Amendment by denying him access to Jewish Sabbath and other holy day services, by depriving him of kosher meals required by his faith, and by denying him access to the Huntsville Unit chapel for religious observances. Defendants counter that valid penological objectives, including security, staff and space limitations, and financial burdens, justify TDCJ’s policies, and that Baranowski has alternative means of practicing his religion. This court reviews prison policies that impinge on fundamental constitutional rights under the deferential standard set forth in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Under Turner, a prison regulation that impinges on an inmate’s constitutional rights is valid if it is reasonably related to legitimate penological interests. Id. at 89, 107 S.Ct. 2254. Turner requires the court to consider four factors: (1) whether a valid and rational connection exists between the prison regulation and the legitimate governmental interest put forward to justify it; (2) whether there are alternative means of exercising the right that remain open to prison inmates; (3) the impact of the accommodation on prison guards, other inmates, and the allocation of prison resources generally; and" }, { "docid": "22792352", "title": "", "text": "U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). “Thus, when a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect [prisoners’] constitutional rights.” Mauro v. Arpaio, 188 F.3d 1054, 1058 (9th Cir.1999) (en banc) (internal citation omitted). “Nevertheless, prisoners’ constitutional rights are subject to substantial limitations and restrictions in order to allow prison officials to achieve legitimate correctional goals and maintain institutional security.” Walker v. Sumner, 917 F.2d 382, 385 (9th Cir.1990) (internal citations omitted). “In Turner v. Safley, the Supreme Court set forth the standard for evaluating prisoners’ constitutional claims.” Id. Turner held that “a regulation that impinges upon a prisoner’s constitutional rights is valid if the regulation ‘is reasonably related to legitimate penological interests.’ ” Frost v. Symington, 197 F.3d 348, 354 (9th Cir.1999) (quoting Turner, 482 U.S. at 89, 107 S.Ct. 2254). To guide courts in evaluating whether a challenged regulation is reasonably related to legitimate penological interests, Tuner established the following four-part test: (1) whether the regulation is rationally related to a legitimate and neutral governmental objective; (2) whether there are alternative avenues that remain open to the inmates to exercise the right; (3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials. Prison Legal News, 238 F.3d at 1149 (citing Turner, 482 U.S. at 89-90, 107 S.Ct. 2254). Although all four Tuner factors are relevant to our analysis, the Ninth Circuit has recognized that “[t]he first of these factors constitutes a sine qua non.” Walker, 917 F.2d at 385 (emphasis added). Our court recently relied on the Tuner test in an as-applied constitutional challenge to the same OSP regulation prohibiting prisoners from receiving bulk rate, third, and fourth class mail. Prison Legal News, 238 F.3d at 1146-48. In Prison Legal News, inmate subscribers and publishers of the non-profit newsletter “Prison Legal News” challenged the same OSP mail regulation “as applied to subscription" }, { "docid": "23511205", "title": "", "text": "TDCJ’s not allowing the Odinist group to assemble for religious services in the absence of an outside volunteer (the “volunteer policy”); and (2) the TDCJ’s preventing the Odinists from personally possessing runestones and accessing rune literature (the “runestones policy”). The district court concluded that no material issues of fact remained as to either claim. We consider each claim under Turner’s standard, analyzing whether the record, when interpreted in a light most favorable to Mayfield, reveals a genuine issue of material fact that precludes summary judgment. 1 We have analyzed the TDCJ’s volunteer policy under Turner’s standard in the past and upheld the policy on each occasion. See Baranowski, 486 F.3d at 121-22; Adkins v. Kaspar, 393 F.3d 559, 565 (5th Cir.2004). Applying Turners four factors to the TDCJ’s outside-volunteer policy in this case, we first note that the policy itself is reasonably related to a legitimate penological interest. The TDCJ’s asserted justifications for the volunteer requirement involve prison security concerns, as well as staff and space limitations. These are valid penological interests. We have recognized in previous cases that the TDCJ’s volunteer requirement is rationally related to these legitimate concerns. See Baranowski, 486 F.3d at 121 (affirming a district court’s grant of summary judgment, in part, because “[t]he record demonstrates that the prison policies at issue here are logically connected to legitimate penological concerns of security, staff and space limitations”). However, in this case, the summary judgment record reveals a factual dispute as to the neutrality of the policy’s application. In prior cases where we have affirmed summary judgment on similar § 1983 claims, we have relied on the neutrality of the prison’s policy in doing so. See Adkins 393 F.3d at 571 (noting that, “[t]he requirement of an outside volunteer ... is a uniform requirement .... ”); Freeman, 369 F.3d at 860 (“Foremost, TDCJ’s regulation is neutral .... ”); Green v. Polunsky, 229 F.3d 486, 490 (5th Cir.2000) (finding that a prison policy requiring short hair and clean-shaven faces does not violate inmates’ right to free exercise, in part because the “the policy is neutral, affecting all inmates, regardless" }, { "docid": "21131014", "title": "", "text": "practice authorize officers to scan and inspect — but not read — inmates’ legal mail in their presence. Although Nordstrom has provided evidence that he is reluctant to put certain things in letters to his attorney, the evidence shows that Nordstrom has adequate alternative means of communicating fully with his lawyers and that their effectiveness has not been compromised by the ADC policy and practice. B. First Amendment. Nordstrom argues that his First Amendment free speech rights are violated by Defendant’s legal mail policy and practices. Nordstrom has failed to prove this claim. The First Amendment, as incorporated against the states by the Fourteenth Amendment, prohibits states from “abridging the freedom of speech.” U.S. Const, amend. I. Although inmates enjoy a First Amendment right to send and receive mail, Witherow v. Paff, 52 F.3d 264, 265 (9th Cir.1995), these rights are “necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security.” McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir.1987) (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987)). A regulation that impinges on an inmate’s First Amendment rights is valid if that regulation “ ‘is reasonably related to legitimate penological interests.’ ” Frost v. Symington, 197 F.3d 348, 354 (9th Cir.1999) (citing Turner, 482 U.S. at 89, 107 S.Ct. 2254). Deterring criminal activity and maintaining prisoner security are legitimate peno-logical interests that justify regulations on prisoner mail. Nordstrom, 762 F.3d at 906; O’Keefe v. Van Boening, 82 F.3d 322, 326 (9th Cir.1996). As discussed above, the evidence shows that Defendant has legitimate penological interests in maintaining institutional security. The abuse of inmates’ right to send and receive legal mail poses a security threat in several ways: it can be used to introduce contraband into ADC’s facilities, to facilitate criminal activity within the prison’s walls, and to facilitate criminal activity on the outside. The legitimate pe-nological interest in mitigating such threats justifies ADC’s legal mail policy and practices. Nordstrom, 762 F.3d at 906; O’Keefe, 82 F.3d at 326. C." }, { "docid": "17988666", "title": "", "text": "of prison resources; and (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials. Morrison v. Hall, 261 F.3d 896, 901 (9th Cir.2001) (quoting Prison Legal News, 238 F.3d at 1149). The first factor is a sine qua non. Id.; Prison Legal News, 238 F.3d at 1151. Therefore, if the prison fails to show that the regulation is rationally related to a legitimate penological objective, we do not consider the other factors. Prison Legal News, 238 F.3d at 1151. In considering the first factor, we are to (1) determine whether the regulation is legitimate and neutral, and (2) assess whether there is a rational relationship between the governmental objective and the regulation. Morrison, 261 F.3d at 901-02. For purposes of this discussion, we assume that the prison’s asserted interest in security and order is a legitimate penological objective. We conclude, however, that the challenged book label policy is not rationally related to that objective. In determining whether there is a rational relationship between the purported objective and the regulation, the level of scrutiny applied to the judgment of prison officials “depends on the circumstances in each case.” Prison Legal News, 238 F.3d at 1150. If the inmate presents sufficient evidence to “refute[ ] a commonsense connection between a legitimate objective and a prison regulation, ... the state must present enough counter-evidence to show that the connection is not so ‘remote as to render the policy arbitrary or irrational.’ ” Frost v. Symington, 197 F.3d 348, 857 (9th Cir.1999) (quoting Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir.1999) (en banc)); see also Johnson v. Cal., 321 F.3d 791, 801-02 (9th Cir.2003) (discussing Frost). If, however, the inmate does not present evidence sufficient to refute a common-sense connection between the regulation and the government objective, “prison officials need not prove that the banned material actually caused problems in the past, or that the materials are ‘likely’ to cause problems in the future.” Mauro, 188 F.3d at 1060. “The only question is whether prison administrators reasonably could have thought the regulation would" } ]

[ { "docid": "23093342", "title": "", "text": "Because we conclude that § 1611 (f) does not violate the Constitution, there is no occasion to consider the remedial issues raised by the appeal and cross-appeal. Social welfare legislation, by its very nature, involves drawing lines among categories of people, lines that necessarily are sometimes arbitrary. This Court has consistently upheld the constitutionality of such classifications in federal welfare legislation where a rational basis existed for Congress’ choice. “The basic principle that must govern an assessment of any constitutional challenge to a law providing for governmental payments of monetary benefits is well established. ... In enacting legislation of this kind a government does not deny equal protection 'merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” ’ Dandridge v. Williams, 397 U. S. 471, 485. “To be sure, the standard by which legislation such as this must be judged 'is not a toothless one,’ Mathews v. Lucas, 427 U. S. 495, 510. But the challenged statute is entitled to a strong presumption of constitutionality.” Mathews v. De Castro, 429 U. S. 181, 185. See, e. g., Califano v. Jobst, 434 U. S. 47; Califano v. Goldfarb, 430 U. S. 199, 210; Mathews v. Diaz, 426 U. S. 67; Weinberger v. Salfi, 422 U. S. 749; Jefferson v. Hackney, 406 U. S. 535; Richardson v. Belcher, 404 U. S. 78. Aznavorian argues that, even though § 1611 (f) may under this standard be valid as against an equal protection or due process attack, a more stringent standard must be applied in a constitutional appraisal of § 1611 (f) because this statutory provision limits the freedom of international travel. We have concluded, however, that § 1611 (f), fortified by its presumption of constitutionality, readily withstands attack from that quarter as well. The freedom to travel abroad has found recognition in at least three decisions of this Court. In Kent v. Dulles, 357 U. S. 116, the Secretary of" } ]

[ { "docid": "13331310", "title": "", "text": "S.Ct. 1367, 4 L.Ed.2d 1435, was concerned with a due process argument relating to classifications established by nonentitlement provisions of the Act affecting aliens. The Court said, Ibid, at 611, 80 S.Ct. at 1373: “Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as this, we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.” Under the rubric of equal protection, Richardson, 404 U.S. at 81, 92 S.Ct. at 257, 30 L.Ed.2d 231, cites with approval Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 25 L.Ed.2d 491, and says that a statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is “rationally based and free from invidious discrimination.” The Court goes on to say that: “While the present case, involving as it does a federal statute, does not directly implicate the Fourteenth Amendment’s Equal Protection Clause, a classification that meets the test articulated in Dandridge is perforce consistent with the due process requirement of the Fifth Amendment.” The Secretary says that the attacked provisions relating to adopted children are rational because the purpose is (1) to replace lost support when a worker becomes retired or disabled, and (2) to ^prevent spurious claims. Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363, was concerned with the rationality of a distinction made by the Social Security Act between two classes of illegitimate children. The decision mentions the position of the Secretary that the purpose was to provide lost support, Ibid, at 633, 94 S.Ct. 2496, and holds that the legislative lines drawn by Congress refute that general principle in the context of illegitimacy. We are concerned with adoption. The intent of Congress to prevent abuse of the Act by adoption after entitlement to old-age benefits is shown by the statement in S. Rep. p. 404, 1 U.S.Cong. & Admin.News 65 p. 2048, that: “The committee believes that the" }, { "docid": "12321041", "title": "", "text": "conclude that the duration-of-relationship test meets this constitutional standard.” 422 U.S. at 777, 95 S.Ct. at 2472-73. In the instant case, Congress made a rational judgment that households typically pool funds to meet shared expenses, and that the AFDC calculation should be based on the total amount of income available to each family. For all of these reasons, we reject appellants’ claim that the statute violates their right to procedural due process. B. Equal Protection Appellants claim that the regulation and policy deprives them of equal protection under law by imposing a burden on one group of OASDI beneficiaries in an arbitrary and capricious manner. The regulation effectively divides OASDI beneficiaries into two classes: those who live with family members who are otherwise eligible for AFDC assistance, and those who do not. In the first case, the regulation compels that the OASDI benefits be used for the entire family, while in the second case, the recipient enjoys full use of the benefits. Although this situation may appear unfair, it does not amount to a constitutional violation. In Belcher, 404 U.S. 78, 92 S.Ct. 254, the Supreme Court stated that: A statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is “rationally based and free from invidious discrimination.” Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491. While the present case, involving as it does a federal statute, does not directly implicate the Fourteenth Amendment’s Equal Protection Clause, a classification that meets the test articulated in Dandridge is perforce consistent with the due process requirement of the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 [(1954)]. Id. at 81, 92 S.Ct. at 257. “If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because in practice it ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Dandridge, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). For the reasons articulated above," }, { "docid": "13331309", "title": "", "text": "child relies on Kara-haleos v. Secretary of Health, Education and Welfare, 144 U.S.App.D.C. 181, 445 F.2d 657. That decision recognizes that legislative history bolsters the Secretary’s position, but rejects it on the ground that its acceptance would raise a substantial due process question. Ibid, at 659-660. The court says that the interpretation of the savings clause urged upon it (elimination of the requirements of subparagraphs (i) and (ii)) is a “fairly possible one,” Ibid, at 660, and adopts that interpretation. The case does not discuss the merits of the claim of unconstitutionality which arises if the savings clause is interpreted in accordance with our views. The child’s argument for unconstitutionality is based on the claim of invidious discrimination against adopted children. See Stanley v. Secretary of Health, Education and Welfare, W.D. Mo., 356 F.Supp. 793, 804-806. Reliance is placed on both due process and equal protection. We have already rejected the argument that the 1965 amendments divested the child of an accrued interest in violation of due process. Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435, was concerned with a due process argument relating to classifications established by nonentitlement provisions of the Act affecting aliens. The Court said, Ibid, at 611, 80 S.Ct. at 1373: “Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as this, we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.” Under the rubric of equal protection, Richardson, 404 U.S. at 81, 92 S.Ct. at 257, 30 L.Ed.2d 231, cites with approval Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 25 L.Ed.2d 491, and says that a statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is “rationally based and free from invidious discrimination.” The Court goes on to say that: “While the present case, involving as it does a federal statute, does not directly implicate the Fourteenth Amendment’s Equal" }, { "docid": "17390231", "title": "", "text": "blood test that is required to defend against a state-sponsored paternity suit (Little), by denying those benefits to anyone who cannot pay the required fee. The rationale of those cases has never been extended to a monetary benefit program such as the Vaccine Act. Nor has the denial of eligibility for a monetary benefit program been regarded as an infringement of the right to rear and care for children, even though such programs may have a significant impact on a claimant’s ability to provide for his or her children. See Weinberger v. Salfi, 422 U.S. at 768-73, 95 S.Ct. at 2468-71; Dandridge v. Williams, 397 U.S. 471, 485-87, 90 S.Ct. 1153, 1161-63, 25 L.Ed.2d 491 (1970). Second, the fact that the statute may have a disparate impact on indigents does not call for heightened scrutiny under equal protection principles. See Harris v. McRae, 448 U.S. 297, 323, 100 S.Ct. 2671, 2691, 65 L.Ed.2d 784 (1980); Maher v. Roe, 432 U.S. 464, 470-71, 97 S.Ct. 2376, 2380-81, 53 L.Ed.2d 484 (1977); San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 29, 93 S.Ct. 1278, 1294-95, 36 L.Ed.2d 16 (1973); see also Schweiker v. Wilson, 450 U.S. 221, 234, 101 S.Ct. 1074, 1082-83, 67 L.Ed.2d 186 (1981). Consequently, the Vaccine Act eligibility standard satisfies equal protection principles as long as the standard satisfies the “rational basis” test traditionally applied to legislation that confers benefits on qualifying persons. See Bowen v. Gilliard, 483 U.S. 587, 598, 107 S.Ct. 3008, 3015-16, 97 L.Ed.2d 485 (1987); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971); Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1372-73, 4 L.Ed.2d 1435 (1960). An eligibility test may be rational even if it does not do a perfect job of selecting those eases that appear to be appropriate subjects of congressional concern. As the Supreme Court has stated, drawing lines that create distinctions regarding eligibility for social welfare programs “is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary.” Schweiker v. Wilson," }, { "docid": "20818961", "title": "", "text": "89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). The first question to be considered is what is the appropriate standard for determining if plaintiffs have been afforded due process under the Fifth Amendment. The cases which followed Bolling v. Sharpe, have not clearly delineated the proper test to be used. In Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960), the Court upheld the validity of a section of the Social Security Act which terminated certain benefits of aliens who were deported. The standard enunciated in that case was that “the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.” 363 U.S. at 611, 80 S.Ct. at 1373. More recently in Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971), the Court stated that: A statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is ‘rationally based and free from invidious discrimination.’ Dandridge v. Williams, 397 U.S. 471, 487 [90 S.Ct. 1153, 1162, 25 L.Ed.2d 491], While the present case, involving as it does a federal statute, does not directly implicate the Fourteenth Amendment’s Equal Protection Clause, a classification which meets the test articulated in Dandridge is perforce consistent with the due process requirement of the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U.S. 497, 499 [74 S.Ct. 693, 694, 98 L.Ed. 884], 404 U.S. at 81, 92 S.Ct. at 257. Later in the same opinion it is said that: If the goals sought are legitimate, and the classification adopted is rationally related to the achievement of those goals, then the action of Congress is not so arbitrary as to violate the Due Process Clause of the Fifth Amendment. 404 U.S. at 84, 92 S.Ct. at 258. More recently, however, the Supreme Court in Weber v. Aetna Casualty & Surety Co., 406 S.Ct. 1400, 31 L.Ed.2d 768 (1972) stated that: The tests to determine the validity of state statutes under the Equal Protection Clause have been" }, { "docid": "1954053", "title": "", "text": "two of the cases cited by plaintiffs on the ground that they clearly involved sanctions for wrongdoing. Cross v. United States, 512 F.2d 1212 (4th Cir.1975) (suspension of grocer from food stamp program for alleged violations of the Food Stamp Act); Wright v. Arkansas Activities Association, 501 F.2d 25 (8th Cir.1974) (termination of coach’s employment contract for violating rule against conducting pre-season practice). There is no intent to punish wrongdoing in the case before the Court. While the lump sum policy admittedly has a harsh impact on AFDC recipients, the Court cannot accept plaintiffs’ characterization of its operation as a “punishment” which offends due process. (3) Equal protection Plaintiffs argue that defendant’s lump sum policy violates the equal protection clause of the fifth and fourteenth amendments to the Constitution because it irrationally distinguishes between recipients of AFDC and non-recipients of AFDC. The latter group would include those persons who receive a lump sum and then subsequently apply for AFDC benefits, or who receive a lump sum during the application process. Defendant’s policy does not prohibit non-recipients who receive a lump sum from spending the entire sum and then applying for AFDC benefits. The appropriate standard of review in equal protection challenges to social welfare legislation is the rational basis test. E.g., Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). The inquiry under this test is whether the challenged classification bears a rational relationship to a legitimate governmental objective. The Court finds that the distinction which defendant’s policy draws between recipients and non-recipients is rational and that the policy therefore does not offend the equal protection clause. Non-recipients are not subject to state welfare agency program rules, so that it is quite rational not to apply the policy to them. Moreover, as the federal third party defendant points out, it would be unfair to apply the lump sum budgeting formula to non-recipients who have no notice of AFDC rules and regulations. While Congress could have enacted a lump sum policy which required retroactive consideration of lump sum income in determining eligibility for AFDC benefits, it was" }, { "docid": "4536960", "title": "", "text": "(1970), solely because of their failure to meet the five-year continuous resi- ■ dency requirement of 42 U.S.C. § 1395o(2) (A)-(ii) (1970). EQUAL PROTECTION STANDARD Whether the compelling governmental interest test or the rational basis criterion provides the applicable standard by which the constitutionality of the alien eligibility provision must be assessed presents the threshold question for consideration. Defendant contends that because this ease falls within the area of economic and social welfare legislation, it must ipso facto be governed by the rule that the “Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.” Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972) ; United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973) . But the government’s reliance on Flemming and its progeny is inapposite to the extent that none of those cases involved even a colorable claim of discrimination. Plaintiffs respond that the deprivation they suffer from denial of eligibility for supplemental medical insurance can only be justified if “necessary to promote a compelling governmental interest,” Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969), because the classification they challenge, as one based on alienage, is “inherently suspect,” Graham v. Richardson, 403 U.S. 365, 376, 91 S.Ct. 1848, 1854, 29 L.Ed.2d 534 (1971); Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948); Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); cf. Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed. 2d 768 (1972); Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969) ; Loving v. Virginia, 388 U.S." }, { "docid": "10258237", "title": "", "text": "effectively creates two categories of illegitimates and treats each differently. Defendant urges us to uphold the constitutionality of this restriction because it is a reasonable means of preventing spurious claims. Plaintiffs assert that this restriction is an unconstitutional denial of due process because it is not rationally related to the objectives of the Social Security Act and because there are less restrictive alternatives available to prevent spurious claims. In considering these arguments, this court may not substitute its judgment of social policy for that of the legislature, but rather must consider whether Congress has the power to discriminate between classes of illegitimates as it has done in the Social Security Act. Dandridge v. Williams, 397 U.S. 471, 486, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). The power of Congress to discriminate is limited by the due process clause of the fifth amendment, which includes the principle of equal protection when a federal statute discriminates in an invidious manner or deprives persons of their fundamental constitutional rights. Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 4, 30 L.Ed.2d 13 (1971); Shapiro v. Thompson, 394 U.S. 618, 641-642, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) ; Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954). In analyzing an alleged denial of equal protection, the Supreme Court has utilized basically two tests depending on the type of interest involved. See generally Developments in the Law Equal Protection, 82 Harv.L.Rev. 1065 (1969). The traditional test consists of a two-part inquiry that first identifies the purposes or objectives of a legislative scheme and then asks whether the challenged discrimination bears a rational relationship to one of those purposes. Moreover, the purpose need not have been a main objective of the statute or even one that the legislators had in mind when they passed it. Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). The second test, that of the compelling state interest, is not applicable in this case because the Supreme Court has held that a challenged discrimination involving public welfare benefits must stand" }, { "docid": "18891323", "title": "", "text": "was over $1 million dollars. The state could rationally have concluded that to eliminate the expense limitation completely or to raise it further, would result in larger expenditures of limited funds. Plaintiffs have argued that because of the work disincentive built into the program, the state would actually save money by eliminating the expense limitation. This argument, however, is addressed to the wrong forum. “[T]he Constitution does not empower . . . [the] Court[s] to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.” Dandridge v. Williams, supra, 397 U.S. at 487, 90 S.Ct. at 1163. Due Process Plaintiffs also challenge the statute on due process grounds, arguing that it creates a presumption that money actually spent on work expenses in excess of $80 per month is available to meet other needs. It is claimed that the presumption is arbitrary, capricious, erroneous and irrebuttable by its terms. We do not agree that the limitation violates the Due Process Clause. In Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971) the Supreme Court concluded that a classification which “meets the test articulated in Dandridge is perforce consistent with the due process requirement of the Fifth Amendment.” Since a non-contractual claim to receive funds from the public treasury is not constitutionally protected, Weinberger v. Salfi, 422 U.S. 749, 772, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), in evaluating a social welfare program, “the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.” Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960). The limitation on work related expenses is not patently arbitrary nor utterly lacking in rational justification. The state makes no claim of allowing all deductions for work related expenses. Rather it has balanced the desire to provide incentives to work against use of the state’s limited resources. The limit of $80 set by the legislature was apparently based to some extent upon a" }, { "docid": "7899728", "title": "", "text": "1383, 12 L.Ed.2d 506. It does not permit legislation that accords different treatment to persons classified on the basis of criteria wholly unrelated to the objective of the statute. Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 30 L.Ed.2d 225. In Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435, the Supreme Court said, “. . . when we deal with a withholding of a noncontractual benefit under a social. welfare program such as this, we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.” The interest of a Social Security claimant is protected by the due process clause from arbitrary governmental action but such benefits do not have the protection of accrued property rights. The social security system “is a child of Congress and, as such, subject to its regulation”. Randolph v. United States, 274 F.Supp. 200, 203 (M.D.N.C.), aff’d 389 U.S. 570, 88 S.Ct. 695, 19 L.Ed.2d 785. “A statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is ‘rationally based and free from invidious discrimination.’ ” Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231; Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 25 L.Ed.2d 491. “To characterize an act of Congress as conferring a ‘public benefit’ does not, of course, immunize it from scrutiny under the Fifth Amendment.” Richardson v. Belcher, supra. However, the Constitution does not leave Government “an unrestricted range when it engages in doling out public funds.” De Rodulfa v. United States, 149 U.S.App.D.C. 154, 461 F.2d 1240, 1256. “So long as its judgments are rational, and not invidious, the legislature’s efforts to tackle the problems of the poor and the needy are not subject to a constitutional strait jacket.” Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285. In drawing the line between eligibility and non-eligibility Congress does not have to use" }, { "docid": "4536959", "title": "", "text": "submit, and we find, that each of the prerequisites for maintenance of a class action pursuant to Rules 23(a) and (b)(2) has been met with respect to both the class and subclass hereinafter defined. The class certified in this action shall consist of: All immigrants residing in the United States who have attained the age of 65 and who have been or will be denied enrollment in the supplemental medical insurance program under Medicare, 42 U.S.C. § 1395j et seq. (1970), because they are not aliens lawfully admitted for permanent residence who have resided in the United States continuously during the five years immediately preceding the month in which they apply for enrollment as required by 42 U.S.C. § 1395o(2)(A)(ii) (1970). Pursuant to Rule 23(c)(4), we will also certify a sub-class consisting of: All immigrants lawfully admitted for permanent residence in the United States who have attained the 'age of 65 and who have been or will be denied enrollment in the supplemental medical insurance . program under Medicare, 42 U.S.C. § 1395j et seq. (1970), solely because of their failure to meet the five-year continuous resi- ■ dency requirement of 42 U.S.C. § 1395o(2) (A)-(ii) (1970). EQUAL PROTECTION STANDARD Whether the compelling governmental interest test or the rational basis criterion provides the applicable standard by which the constitutionality of the alien eligibility provision must be assessed presents the threshold question for consideration. Defendant contends that because this ease falls within the area of economic and social welfare legislation, it must ipso facto be governed by the rule that the “Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.” Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285" }, { "docid": "13034648", "title": "", "text": "withdraw from the program). Friedman v. Perales, 668 F.Supp. at 225. The reimbursement system, if not altered, will ultimately have a measurable negative impact on Pennsylvania medicaid recipients because their ready access to quality care will be impaired. This is another reason why the overall system for out-of-state hospitals is violative of the federal law. Fourteenth Amendment Another question before the court is whether Pennsylvania’s disparate treatment constitutes unconstitutional discrimination in violation of WVUH’s equal protection rights under the Fourteenth Amendment. The state has developed a payment methodology in which it classifies hospitals and bases reimbursements on hospitals’ classifications. The method used by the state has resulted in plaintiff being placed in a class in which it receives a considerably lower reimbursement than other hospitals similarly situated but within Pennsylvania’s borders. The court applies a “traditional” equal protection analysis because suspect classifications such as race, religion or national origin are not involved here. “Under ‘traditional’ equal protection analysis, a legislative classification must be sustained unless it is ‘patently arbitrary’ and bears no rational relationship to a legitimate governmental interest.” Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768-69, 36 L.Ed.2d 583 (1973) (citing Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. at 1724, 1731, 32 L.Ed.2d 285 (1972)); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971); Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970). Whether defendants’ classifications are unconstitutional turns on the question of reasonableness. In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequity.’ Dandridge v. Williams, 397 U.S. at 485, 90 S.Ct. at" }, { "docid": "13034649", "title": "", "text": "a legitimate governmental interest.” Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768-69, 36 L.Ed.2d 583 (1973) (citing Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. at 1724, 1731, 32 L.Ed.2d 285 (1972)); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971); Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970). Whether defendants’ classifications are unconstitutional turns on the question of reasonableness. In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequity.’ Dandridge v. Williams, 397 U.S. at 485, 90 S.Ct. at 1161-62 (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911)). In cases involving economics and social welfare wherein classifications and resultant “imbalanced” treatment occur, the United States Supreme Court looks for links between legitimate governmental interests and the classifications. E.g. Dandridge v. Williams, supra (State regulation placing a maximum ceiling on benefits in the Aid to Families with Dependent Children (AFDC) program was challenged unsuccessfully by large family recipients. Court found the regulation free from invidious discrimination and found it rationally related to the “State’s legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of working poor.” Id. at 486, 90 S.Ct. at 1162); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972) (State’s decision to provide somewhat lower welfare benefits to AFDC recipients than to the aged and infirm was not invidious or irrational because it is not unreasonable for a state to conclude “that the aged and infirm are the least able of" }, { "docid": "8756755", "title": "", "text": "violated if the Medicare statutes and regulations allow or disallow a return on equity solely on the basis of whether a provider is proprietary or non- proprietary. This equal protection argument can only be proved under the Fifth Amendment if the discrimination is “so unjustifiable as to be violative of due process.” Shapiro v. Thompson, 394 U.S. 618, 642, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600, 619 (1969); Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218, 222 (1964). Therefore, the due process clause of the Fifth Amendment guarantees equal protection. United States Department of Agriculture v. Moreno, 413 U.S. 528, 533 n. 5, 93 S.Ct. 2821, 2825 n. 5, 37 L.Ed.2d 782, 787 n. 5 (1973). The plaintiffs have attempted to support its claims that this distinction is discriminatory with statements by Robert Ball (the “anomalous result” testimony from the Hearings, quoted above), a 1966 Memorandum of the Comptroller General of the United States in favor of the 2% allowance and unsupported assertions that the distinction between proprietary and nonproprietary providers is neither rational nor reasonable insofar as the return on equity issue is concerned. The standard to be applied in cases in which the constitutionality of a social welfare program is challenged is the same low level of scrutiny that is applied to legislation regulating business. Weinberger v. Salfi, 422 U.S. 749, 771-72, 95 S.Ct. 2457, 2469-70, 45 L.Ed.2d 522, 542-43 (1975). Salfi cited with approval social welfare legislation cases (Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); and Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)) which “establish that a statutory classification violates due process only if it is ‘patently arbitrary ..., utterly lacking in rational justification.’ 363 U.S. at 611 [80 S.Ct. at 1372]. They establish that a classification violates equal protection only if it lacks a reasonable basis; there is no violation merely because the classification is ‘imperfect,’ or ‘ “not made with mathematical nicety or because" }, { "docid": "8756756", "title": "", "text": "nonproprietary providers is neither rational nor reasonable insofar as the return on equity issue is concerned. The standard to be applied in cases in which the constitutionality of a social welfare program is challenged is the same low level of scrutiny that is applied to legislation regulating business. Weinberger v. Salfi, 422 U.S. 749, 771-72, 95 S.Ct. 2457, 2469-70, 45 L.Ed.2d 522, 542-43 (1975). Salfi cited with approval social welfare legislation cases (Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); and Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)) which “establish that a statutory classification violates due process only if it is ‘patently arbitrary ..., utterly lacking in rational justification.’ 363 U.S. at 611 [80 S.Ct. at 1372]. They establish that a classification violates equal protection only if it lacks a reasonable basis; there is no violation merely because the classification is ‘imperfect,’ or ‘ “not made with mathematical nicety or because in practice it results in some inequality.” ’ 397 U.S. at 485-86 [90 S.Ct. at 1161-62].” Caylor-Nickel Hospital, Inc. v. Califano, Civil No. F 77-83 (N.D.Ind. Sept. 10, 1979) ¶ 30,718, CCH Medicare and Medicaid Guide. In Caylor-Nickel, Judge Eschbach, with specific reference to the return on equity provisions, held that the regulations which “provide for profit institutions but not to nonprofit institutions” are sufficiently rationally based to satisfy Salfi. Id., ¶ 30,718, Medicare and Medicaid Guide at 9098. The reasons for this finding of sufficient rationality to sustain the constitutionality of the statutory and regulatory scheme are that: It is certainly rational that profit institutions receive this advantage when nonprofit institutions receive numerous other advantages, such as various grants and contributions, and tax-exempt status. The purpose and rationality of this classification is made clear in 42 U.S.C. § 1395x(v)(l)(A) and in the legislative history .... The distinction drawn between profit and nonprofit institutions violates nothing in the fifth amendment. See Am. Med. Int'l, Inc. v. Sec. of H.E.W., 466 F.Supp. 605, 615 (D.C.Dist.Columb. 1979)." }, { "docid": "782145", "title": "", "text": "to these benefits, let alone a “property” right, is an almost meaningless one taken out of context. There are, for example, broad equal protection limits on the denial of Social Security benefits, and similarly there are limits on the power of government to deny benefits without proper procedures. Goldberg v. Kelly, 1970, 897 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. The Kelly Court states that for purposes of its decision “It may be realistic today to regard welfare entitlements as more like ‘property’ than a ‘gratuity.’ ” Id. at n. 8. On the other hand, “The Constitution does not empower this Court to second-guess * * * officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.” Dandridge v. Williams, 1970, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491. The collective meaning of these decisions is that entitlement of an individual to benefits attaches at some point in the award process, after which there is a right that cannot be infringed but by due process or just compensation, but until that time the underlying substantive decision whether a given class of persons should receive benefits remains with the legislature subject to equal protection limits. We do not think that either the passage by Congress of a statute that this Court found ambiguous enough to read as it did on the prior appeal to this Court, or the prior decision itself, established such a property right as to bar Congress from clarifying that law. Entitlement to these benefits has always been held not to create a vested property right before adjudication or payment. Flemming v. Nestor, 1960, 363 U.S. 603, 608, 80 S.Ct. 1367, 1371, 4 L.Ed.2d 1435. The mere fact that the Act of Congress at issue here relates, as does the decision of this Court, to rights that might have attached in the past had they been awarded under a particular interpretation does not debase this Act of Congress to the status of a fifth amendment violation. As the Court said in Nestor, “To engraft upon the Social Security" }, { "docid": "6340962", "title": "", "text": "as cases in which the challenged regulation or statute was not rationally related to the object of the regulation or statute (a typical ground for invalidating a classification) or as a case involving a fundamental constitutional right (a classification which corresponded to the extreme hardship ease noted in the comment supra j. It then proceeded to dismiss the irrebuttable or conclusive presumption doctrine as entirely inapposite in reviewing for constitutionality statutes or regulationSj involved in “social welfare legislation” and to reaffirm the rule in that area as declared in Richardson v. Belcher, supra, 404 U.S. 788, 92 S.Ct. 254, 30 L.Ed.2d 231; Dandridge v. Williams, supra, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 and Flemming v. Nestor, supra, 363 U.S. 604, 80 S.Ct. 1367, to wit: So long as a claimant for benefits or payments under a social welfare program is “free to present evidence” that he is not disqualified under the test established by the statute or regulation, his “only constitutional claim is that the test [he] cannot meet is not so rationally related to a legitimate legislative objective that it can be used to deprive [him] of benefits available to those who do satisfy that test.” The rule thus declared in Salfi has been recently reaffirmed in Knebel v. Hein which involved a regulation of the Secretary of Agriculture issued under the Food Stamp program. That regulation, in fixing the amount an eligible householder had to pay for food stamps by the householder’s income, defined income to include transportation allowances received in attendance at a training school. The allowance. in the particular case was conceded to be less than the actual cost of transportation. As a result of the inclusion, the householder had his price for food stamps increased. The householder contended the regulation re-suited in a conclusive presumption that the transportation allowance was income, a presumption which in the particular case was not true in fact. After observing that the challenged regulation “operate[d] somewhat unfairly in appellee’s case,” the Court sustained the regulation, saying (p. 297, 97 S.Ct. at 555): “Nor do the regulations embody" }, { "docid": "20798900", "title": "", "text": "of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). However, the cases recognize also that social welfare legislation cannot be expected to be surgically precise in its classification and the existence of some discrimination incidental to the statute’s goal and the means used to achieve it will not make the statute constitutionally infirm under either the Fifth or Fourteenth Amendments. Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). What the Court stated in Dandridge, supra at 485, 90 S.Ct. at 1161, in regard to equal protection: In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” it later reaffirmed in Richardson, supra, 404 U.S. at 84, 92 S.Ct. at 258, for due process: We have no occasion, within our limited function under the Constitution, to consider whether the legitimate purposes of Congress might have been better served by applying the same offset to recipients of private insurance, or to judge for ourselves whether the apprehensions of Congress were justified by the facts. If the goals sought are legitimate, and the classification adopted is rationally related to the achievement of those goals, then the action of Congress is not so arbitrary as to violate the Due Process Clause of the Fifth Amendment. The child’s insurance benefits provision of the Social Security Act is founded on the dual concepts of parentage and dependency. To be eligible for benefits, a claimant must be both the child of and dependent upon the deceased wage earner. 42 U.S.C. § 402(d)(1). The purpose of" }, { "docid": "23209915", "title": "", "text": "waiver of any further conditions to eligibility implicit in the program. It is clear, both from the entire context and from specific references in the materials before him, that the proponents and opponents of the projects and the Secretary were well aware that the PSWOP and IFI work programs differed in some respects from WIN; indeed their very purpose was to provide employment for AFDC recipients not participating in a WIN program. It would elevate form over substance to issue a temporary injunction against the operation of these projects until the Secretary went through the formality of adding 42 U.S.C. § 602(a) (19) to the list of sections compliance with which was being waived. VI. The Constitutional Issues We deal first with appellants’ claims that the different treatment of the 25% of the State welfare recipients in the areas chosen for inclusion in PS WOP and the 2.5% of such recipients chosen for inclusion in IFI from that accorded welfare recipients in the rest of the State violates the Equal Protection Clause of the Fourteenth Amendment. Dandridge v. Williams, 397 U.S. 471, 484-86, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970), decided that despite the fact that “the administration of public welfare assistance . . . involves the most basic economic needs of impoverished human beings,” claims of denial of equal protection in the allocation of welfare benefits did not invoke the “strict scrutiny” developed by the Court for equal protection claims where “fundamental rights” were at stake. The Court has since reaffirmed this in Richardson v. Belcher, 404 U.S. 78, 92 S. Ct. 254, 30 L.Ed.2d 231 (1971), and Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972). As said in the latter case, 406 U.S. at 546-547; 92 S.Ct. at 1731: So long as its judgments are rational, and not invidious, the legislature’s efforts to tackle the problems of the poor and the needy are not subject to a constitutional strait jacket. The very complexity of the problems suggests that there will be more than one constitutionally permissible method of solving them. If the" }, { "docid": "1954048", "title": "", "text": "the previous two years, by taxpayers who were themselves ineligible for food stamps, could not participate in the food stamp program. This provision reflected legislative concern about abuses of the food stamp program by college students. The Supreme Court found that the irrebuttable presumption that the tax dependent’s household was not needy for food stamp purposes constituted a violation of due process because it lacked a rational basis. Id. at 514, 93 S.Ct. at 2835. Tax deductions taken in previous years with respect to one individual, according to the Court, were not a rational measure of whether the household with which that individual was currently living needed food stamps. Plaintiffs argue that the presumption of continued availability built into defendant’s lump sum policy is similarly irrational, for the reasons given above, and that it should therefore be held to violate due process. The proper standard of review in cases involving constitutional challenges to social welfare programs is minimal scrutiny. The United States Supreme Court, in Fleming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960), provided the following description of this standard: Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as [Social Security], we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification. Id. at 611, 80 S.Ct. at 1372. The Supreme Court has consistently upheld social welfare legislation under the rational basis test. See, e.g., Schweiker v. Hogan, 457 U.S. 569, 102 S.Ct. 2597, 73 L.Ed.2d 227 (1982) (provision of Medicaid benefits based upon income level rationally related to providing scarce resources to the most needy); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972) (state’s reduced standard of need formula, which affected AFDC recipients more adversely than other welfare recipients, rationally related to budget constraints); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (state imposition of AFDC grant ceiling, regardless of family size, rationally related to goal of" } ]

[ { "docid": "22927325", "title": "", "text": "does include officer and employee, but certainly does not exclude all others. Its scope is illustrated rather than qualified by the specified examples. In our judgment the section must be construed to include all those so connected with a corporation as to be responsible for the performance of the act in respect of which the violation occurred. Graham next contends that he was not a person under § 6672 “required to collect, truthfully account for, and pay over” the taxes in question, since he was not a disbursing officer of the corporation and had no authority to draw or sign checks on the corporation’s bank account. This again, we feel, is too narrow a construction. The statute’s purpose is to permit the taxing authority to reach those responsible for the corporation’s failure to pay the taxes which are owing. It would make little sense to confine liability to those performing the mere mechanical functions of collection and payment when such functions are performed simply in accordance with the executive judgment of others whose duty it is to decide for the corporation in this area. The question is simply whether the board of directors “had the final word as to what bills should or should not be paid, and when.” Wilson v. United States, 9 Cir., 1957, 250 F.2d 312, 316. Appellee contends that it did not and that the district court has so found. In the light of the issues (hereinbefore discussed) upon which this case was tried to the district court ánd the findings made upon those issues, we regard the court’s determination in this area as inconclusive. Never did the evidence come to grips with the. essential question: whether the board controlled the payment of the corporation’s tax debt or whether this power had by the board been delegated to some officer of the corporation. Nor does it appear that the district court was called upon to find upon this issue. Graham contends that irrespective of the outcome upon this issue, he himself did not willfully fail to pay over the taxes due and that the district court" } ]

[ { "docid": "9543979", "title": "", "text": "in respect of which the violation occurs. (emphasis supplied). “Duty” under § 6671(b) has a much more focused meaning than the generalized duty of all taxpayers to pay taxes and is expressly limited to the duty that attaches to the position an employee holds within the corporation. For purposes of § 6672, a “responsible person” includes one who either individually or as part of a group exercises ultimate authority over a corporation’s financial affairs. See, e.g., Kalb v. United States, 505 F.2d 506, 511 (2d Cir.1974), cert. denied, 421 U.S. 979, 95 S.Ct. 1981, 44 L.Ed.2d 471 (1975); Monday v. United States, 421 F.2d 1210, 1214-15 (7th Cir.1970). A “responsible person” also includes any person who has significant control over the corporation’s affairs and participates in decisions concerning what bills should or should not be paid and when, and thus determines whether the United States or other creditors will be paid. See, e.g., Simpson v. United States, 664 F.Supp. 43 (S.D.N.Y.1987); Abramson v. United States, 48 B.R. 809 (E.D.N.Y.1985). Ultimate authority and significant control do not mean exclusive authority or control, so that more than one person may be held responsible under § 6672. See Thibodeau v. United States, 828 F.2d 1499, 1503 (11th Cir.1987); Simpson, 664 F.Supp. at 48. The requisite duty for liability under § 6672 may arise either from titular authority or from actual management of corporate finances. Although clear titular authority is generally sufficient, see, e.g., Kalb v. United States, 505 F.2d 506 (2d Cir.1974), cert. denied, 421 U.S. 979, 95 S.Ct. 1981, 44 L.Ed.2d 471 (1975); Simpson v. United States, 664 F.Supp. 43 (E.D.N.Y.1987); Cella v. United States, 80-1 U.S. Tax Cas. (CCH) H 9369 (E.D.N.Y.1980), in the absence of such authority, decisions have focused on the assessed person’s actual exercise of significant control over the corporate decisions concerning which bills to pay and when. See, e.g., Neckles v. United States, 579 F.2d 938 (5th Cir.1978) (per curiam); Copperman v. United States, 78-2 U.S. Tax Cas. ¶ 9579 (E.D.N.Y.1978); Werner v. United States, 374 F.Supp. 558 (D.Conn.1974), aff'd on opinion below, 512 F.2d 1381 (2d" }, { "docid": "23148041", "title": "", "text": "other creditors should be paid, and asserts that he did not have such authority. This argument is without merit. While some courts have suggested that an individual is responsible under section 6672 only if he has the power to make the final decision on the order in which creditors will be paid, see, e.g., Maggy, 560 F.2d at 1374, we agree with the weight of authority that “[i]t is not necessary that an individual have the final word as to which creditors should be paid in order to be subject to liability under this section. Rather, it is sufficient that the person have significant control over the disbursement of funds.” Gephart, 818 F.2d at 475; see Neckles, 579 F.2d at 940; Brown v. United States, 464 F.2d 590, 591 n. 1 (5th Cir.1972), cert. denied, 410 U.S. 908, 93 S.Ct. 962, 35 L.Ed.2d 270 (1973); see also Schwinger v. United States, 652 F.Supp. 464, 467 (E.D.N.Y.1987) (“ ‘final’ in this context indicates significant rather than exclusive control”). The district court found that Hochstein “had nothing approaching the requisite power [to disburse funds].” 713 F.Supp. at 123. This finding is clearly erroneous. The record indicates that, in addition to Hochstein's check-signing authority, he made the initial determination of the order in which large bills were to be paid, subject to President Eckstein’s approval, and that he had discretion to pay smaller bills. The fact that Hochstein was the person who requested funds on behalf of Safelon from Rosenthal also suggests that Hochstein was intimately involved in Safel-on’s financial affairs. Bearing in mind that Hochstein had the burden of proof on this issue, we conclude that he was a responsible person. See Howard v. United States, 711 F.2d 729, 734 (5th Cir.1983) (issuance of small checks without approval of superior demonstrated authority to pay taxes). B. Willfulness The district court went on to hold that, even if Hochstein was a responsible person, his failure to pay was not willful because he “did not give priority to other business obligations of Safelon, over the liability to the I.R.S.” 713 F.Supp. at 124. While" }, { "docid": "22211840", "title": "", "text": "directed that $8,000 in back taxes be paid the IRS. See Brown v. United States, 464 F.2d 590, 591 (5th Cir.1972) (“responsible person” was person successful in securing payment of withholding taxes during prior quarter), cert. denied, 410 U.S. 908, 93 S.Ct. 962, 35 L.Ed.2d 270 (1973). Howard’s duties, prerogatives, and prior acts are more than sufficient to establish that he was a “responsible person” for the purpose of section 6672(a) liability. Commonwealth National Bank of Dallas v. United States, 665 F.2d 743, 755 (5th Cir.1982) (lending bank officer with power to see that corporate borrower’s taxes were paid, and to make decisions as to disbursement of funds, was a “responsible person”); Mazo, 591 F.2d at 1155-56 (general manager in charge of corporation’s day-to-day operations and possessing check-signing authority was a “responsible person”); Hornsby v. IRS, 588 F.2d 952, 953 (5th Cir.1979) (corporate officer with check-signing authority was a “responsible person”); Neckles v. United States, 579 F.2d 938, 940 (5th Cir.1978) (de facto corporate officer regarded by some as a “boss,” who signed checks and had significant control over disbursement of corporate funds, was a “responsible person”); Adams v. United States, 504 F.2d 73, 75 (7th Cir.1974) (“responsible person” need not be a corporate officer, but only someone with significant control over the disbursement of funds); Liddon v. United States, 448 F.2d 509, 513 (5th Cir.1971) (50% shareholder and corporate agent with authority to sign checks was a “responsible person”), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117 (1972); Monday v. United States, 421 F.2d 1210, 1214-15 (9th Cir.1970) (“responsible person” status generally attaches to “high corporate officials charged with general control over corporate business affairs who participate in decisions concerning payment of creditors and disbursement of funds.”), cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970). The fact that Jennings might well have fired Howard had he disobeyed Jennings’ instructions and paid the taxes does not make Howard any less responsible for their payment. See Brown, 464 F.2d at 591 n. 1 (5th Cir.1972) (“responsible person” need not have final word on payment" }, { "docid": "11574353", "title": "", "text": "conclusion that Caterino was liable under 26 U.S.C. § 6672. Accordingly, we affirm the district court’s judgment imposing liability on Caterino for Northerlin’s withheld income and social security taxes for the first two quarters of 1974. AFFIRMED. . Responsible persons under section 6672 can include those who are neither officers nor employees of the corporation owing the taxes. Fidelity Bank v. United States, 616 F.2d 1181, 1185 (10th Cir.1980); Pacific National Insurance Co. v. United States, 422 F.2d 26, 30 (9th Cir.), cert. denied, 398 U.S. 937, 90 S.Ct. 1838, 26 L.Ed.2d 269 (1970); Commonwealth National Bank of Dallas, 665 F.2d at 750-51; Werner, 374 F.Supp. at 562. The statute may impose responsibility on a surety for the employer, Pacific National Insurance Co., 422 F.2d at 30-31, a creditor of the employer, Adams, 504 F.2d at 75-76; Mueller v. Nixon, 470 F.2d 1348, 1350 (6th Cir.1972); Commonwealth Bank of Dallas, 665 F.2d at 755, and an individual who provides funds to the employer, Werner, 374 F.Supp. at 562. . Caterino argues on appeal that the trial judge after previous remand again failed to make findings of fact with respect to willfulness. Although such a finding would have facilitated our evaluation as to whether willfulness was present, the finding is not indispensable to an understanding of the basis of the district court’s decision. The failure of the trial judge in a non-jury action to comply with Rule 52(a) of the Federal Rules of Civil Procedure with respect to a finding of fact does not require a remand or impel a reversal of a correct judgment “if a complete understanding of the issues is possible in the absence of separate findings and if there is a sufficient basis for the appellate court’s consideration of the merits of the case.” Gulf Towing Co., Inc. v. The Steam Tanker, Amoco New York, 648 F.2d 242, 245 (5th Cir.1981); Seligson v. Roth, 402 F.2d 883, 887 (9th Cir.1968). Willfulness in failing to pay the taxes may be inferred from the other facts found by the district court which will support the judgment and under such" }, { "docid": "9543980", "title": "", "text": "not mean exclusive authority or control, so that more than one person may be held responsible under § 6672. See Thibodeau v. United States, 828 F.2d 1499, 1503 (11th Cir.1987); Simpson, 664 F.Supp. at 48. The requisite duty for liability under § 6672 may arise either from titular authority or from actual management of corporate finances. Although clear titular authority is generally sufficient, see, e.g., Kalb v. United States, 505 F.2d 506 (2d Cir.1974), cert. denied, 421 U.S. 979, 95 S.Ct. 1981, 44 L.Ed.2d 471 (1975); Simpson v. United States, 664 F.Supp. 43 (E.D.N.Y.1987); Cella v. United States, 80-1 U.S. Tax Cas. (CCH) H 9369 (E.D.N.Y.1980), in the absence of such authority, decisions have focused on the assessed person’s actual exercise of significant control over the corporate decisions concerning which bills to pay and when. See, e.g., Neckles v. United States, 579 F.2d 938 (5th Cir.1978) (per curiam); Copperman v. United States, 78-2 U.S. Tax Cas. ¶ 9579 (E.D.N.Y.1978); Werner v. United States, 374 F.Supp. 558 (D.Conn.1974), aff'd on opinion below, 512 F.2d 1381 (2d Cir.1975). Since it is clear that Levy was not an officer of Art Steel and did not have the power to sign corporate checks, the question in this case is whether he nevertheless exercised significant control over the corporation’s affairs including the corporate decisions concerning what bills should or should not be paid. Levy argues that despite his status as an owner and director of Art Steel, in reality he had been stripped of the ability meaningfully to exercise power by 1976, and certainly did not participate in the control of Art Steel's financial affairs. The Government contends that the jury correctly found Levy to be a “responsible person” because as a director with a financial stake in the corporation, Levy had the power to influence corporate events. Although the Government concedes that Levy’s status as a shareholder and employee is not enough to make Levy a person required to pay over Art Steel’s withholding taxes, the Government also points to the facts (1) that a few lower level employees regarded Levy as being in" }, { "docid": "5275511", "title": "", "text": "assesesd [sic] tax quarters.” Before and during trial, the Bowlens never stipulated that they were responsible persons during the last two quarters of 1983. The absence of a stipulation, however, does not help the Bowlens. In this court, the Bowlens maintain that they lost their status as “responsible persons” after June 1983; but from the evidence the Bow-lens produced at trial, no reasonable juror could have agreed with their contention. The Bowlens correctly state that the key to liability under section 6672 is the power to control the decision-making process by which the employer corporation allocates funds to other creditors in preference to its withholding tax obligations. Purdy Co. v. United States, 814 F.2d 1183, 1188 (7th Cir.1987) (citing Haffa v. United States, 516 F.2d 931, 936 (7th Cir.1975)). Since David Briggs took over the day-to-day operations of Cinco Drilling and prepared all checks for payment to the creditors of Cin-co Drilling after June 1983, the Bowlens maintain that they did not retain responsible person status during the third and fourth quarters of 1983. Section 6672 casts a broad net of liability, however, and the Bowlens did not escape it once Briggs took over the day-to-day operations of Cin-co Drilling. A person is responsible under section 6672 if he retains sufficient control of corporate finances that he can allocate corporate funds to pay the corporation’s other debts in preference to the corporation’s withholding tax obligations. Sawyer, 831 F.2d at 758. To be responsible under section 6672, a person need not necessarily have exclusive control over the disbursal of funds or have the final word as to which creditors should be paid so long as he has significant control. Adams v. United States, 504 F.2d 73, 75 (7th Cir.1974). Courts have recognized several indicia of responsible person status including ownership of stock or holding of an entrepreneurial stake in a corporation and authority to sign cheeks on corporate accounts or prevent their issuance by denying a necessary signature. Monday, 421 F.2d at 1214-15; Godfrey, v. United States, 748 F.2d 1568, 1576 (Fed.Cir.1984) (where a person has authority to sign the corporation’s" }, { "docid": "11574347", "title": "", "text": "held: whether the person had the power to determine whether' the taxes should be remitted or paid or had “the final word as to what bills should or should not be paid and when.” Adams v. United States, 504 F.2d 73, 75 (7th Cir.1974), cert. denied sub nom. Estate of Klein v. Commissioner, 421 U.S. 991, 95 S.Ct. 1998, 44 L.Ed.2d 482 (1975). In the context of this case, “the word ‘final’ means significant rather than exclusive control over the disbursement of funds.” Neckles v. United States, 579 F.2d 938, 940 (5th Cir.1978); Emshmller v. United States, 565 F.2d 1042, 1045 (8th Cir.1977); Adams, 504 F.2d at 75. Under certain circumstances, lenders and even employees of lenders have been held “responsible” under section 6672. Fidelity Bank N.A. v. United States, 616 F.2d 1181, 1185 (10th Cir.1980); United States v. Graham, 309 F.2d 210, 212 (9th Cir.1962). Although the rule appears harsh, as in other tax litigation a person who challenges a section 6672 assessment bears the burden of persuasion to prove lack of control. See United States v. Rexach, 482 F.2d 10, 16-17 (1st Cir.), cert. denied, 414 U.S. 1039, 94 S.Ct. 540, 38 L.Ed.2d 330 (1973); United States v. Pompanio, 635 F.2d 293, 296 (4th Cir.1980). The district court concluded that Caterino did not carry this burden and is therefore “responsible” under section 6672. Central to this appeal is Caterino’s contention that the district court erred in finding that, for the first two quarters of 1974, he had sufficient control of the company to decide whom to pay and not to pay. This court cannot reverse merely because it is convinced that it would have decided the question differently; we must ascertain whether the finding of fact is clearly erroneous. Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 1511-13, 84 L.Ed.2d 518 (1985). We must affirm if the finding is reasonably supported on the record as a whole, Bruce Drug, Inc. v. Hollister Inc., 688 F.2d 853, 854 (1st Cir.1982). We must reverse when a review of the entire evidence leaves this court with the “definite and" }, { "docid": "11574351", "title": "", "text": "demonstrate that he had become the only remaining authority figure and that he had the power to substantially control whom Northerlin paid. We conclude that the district court’s finding that Caterino had sufficient power in early April 1974 to control what creditors Northerlin would pay is not clearly erroneous. Therefore, its conclusion that Caterino is “responsible” within the meaning of section 6672 is not incorrect. B. The district court did not directly address the “willfulness” requirement. Willfulness in this context is the “voluntary, conscious, and intentional decision to prefer other creditors to the United States.” Harrington, 504 F.2d at 1311; Newsome v. United States, 431 F.2d at 742, 746 (5th Cir.1970). Any responsible person who knows the taxes are not paid and allows the business to pay other creditors acts willfully. See Maggy, 560 F.2d at 1375; Hartman v. United States, 538 F.2d 1336, 1341 (8th Cir.1976). Evil motive and specific intent are not necessary elements. Harrington, 504 F.2d at 1311; Monday v. United States, 421 F.2d 1210, 1216 (7th Cir.1970). Mere knowledge, or reckless disregard for known risks, is sufficient. Monday, 421 F.2d at 1215. It is undisputed that Caterino learned of the unpaid 1973 withholding taxes no later than March 1974, and of the unpaid 1974 withholding taxes when he received the returns in April and July of 1974. He contends, however, that no evidence was introduced that in 1974 Northerlin diverted funds to pay other creditors or that it even had any funds. This argument fails for two reasons; first, Caterino did not raise the issue in the district court; second, he had the statutory burden of proof in this proceeding and he never attempted to meet it on this issue. Wilfulness for purpose of section 6672 means no more than knowledge that taxes are due and withheld and conscious disregard of the obligation to remit them. We have no difficulty in inferring willfulness from the district court’s finding that Cater-ino had assumed control over Northerlin early in 1974 and had directed the filing of the tax returns. III. We perceive no error in the district court’s" }, { "docid": "23148040", "title": "", "text": "is responsible for collecting and paying withholding taxes, including the individual’s duties as outlined in the corporate bylaws, his ability to sign checks, his status as an officer or director, and whether he could hire and fire employees. Gephart v. United States, 818 F.2d 469, 473 (6th Cir.1987) (per curiam). The central question, however, is whether the individual has significant control over the enterprise’s finances. See, e.g., Ruth v. United States, 823 F.2d 1091, 1094 (7th Cir.1987); Gephart, 818 F.2d at 473; Neckles v. United States, 579 F.2d 938, 940 (5th Cir.1978) (per curiam). While Hochstein was not an officer or director and had no authority to hire and fire employees, he did exercise significant control over Safelon’s finances. He had the authority to sign checks in any amount; he signed and filed Safelon’s payroll tax returns; he dealt with Rosenthal on a daily basis during Safelon’s financial troubles; and he oversaw Safelon’s bookkeeping. Hochstein maintains that, to be held liable, he would have to have the ultimate authority to determine whether the government or other creditors should be paid, and asserts that he did not have such authority. This argument is without merit. While some courts have suggested that an individual is responsible under section 6672 only if he has the power to make the final decision on the order in which creditors will be paid, see, e.g., Maggy, 560 F.2d at 1374, we agree with the weight of authority that “[i]t is not necessary that an individual have the final word as to which creditors should be paid in order to be subject to liability under this section. Rather, it is sufficient that the person have significant control over the disbursement of funds.” Gephart, 818 F.2d at 475; see Neckles, 579 F.2d at 940; Brown v. United States, 464 F.2d 590, 591 n. 1 (5th Cir.1972), cert. denied, 410 U.S. 908, 93 S.Ct. 962, 35 L.Ed.2d 270 (1973); see also Schwinger v. United States, 652 F.Supp. 464, 467 (E.D.N.Y.1987) (“ ‘final’ in this context indicates significant rather than exclusive control”). The district court found that Hochstein “had nothing" }, { "docid": "11574339", "title": "", "text": "withhold social security and federal income taxes from employees’ wages, 26 U.S.C. §§ 3102, 3402 (1982), and to hold such amounts in trust for the United States. 26 U.S.C. § 7501 (1982). Because the Internal Revenue Service (IRS) has no recourse against employees who have had income and social security taxes withheld from their wages, the Code imposes liability on certain individuals whom it deems to be in positions to determine whether employers remit withheld taxes to the government. 26 U.S.C. § 6672 provides in pertinent part: § 6672. Failure to collect and pay over tax, or attempt to evade or defeat tax. (a) General rule. — Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to ... pay over such tax, ... shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. The two elements essential to liability of a third party are that the person be “responsible” and act “willfully” within the meaning of section 6672. Harrington v. United States, 504 F.2d 1306, 1312-13 (1st Cir.1974); Maggy v. United States, 560 F.2d 1372, 1374-75 (9th Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 86, 58 L.Ed.2d 112 (1978); Werner v. United States, 374 F.Supp. 558, 560 (D.Conn.1974), aff'd per curiam, 512 F.2d 1381 (2d Cir.1975). The issue in this appeal is whether the factual findings that support the district court’s conclusions of responsibility and willfulness are clearly erroneous. B. Northerlin Company, Inc. at all times relevant to this case engaged in waterproofing basements through its twelve subsidiaries and through its own division, the Vulcan Basement Waterproofing Company. Edward Gilbert held a controlling interest in Northerlin until Caterino purchased all of the outstanding capital stock on June 3, 1974. In early 1973, Caterino began negotiations on behalf of Graham Stuart, in which he held the majority stock, to purchase the assets of Northerlin. Graham Stuart is a company organized to hold ownership interests in other" }, { "docid": "11397040", "title": "", "text": "the delinquency in paying over the withholdings held in trust, yet continued to pay other creditors. It thus appears that appellant was acting as a de facto officer or employee of TASK. The fact that he received no remuneration and held no official position, while important, is not conclusive as to his liabilities under section 6672. Whatever his motives and official position, the appellant had the power and authority to pay creditors, did so, and ignored the taxes collected and held in trust for the government. 26 U.S.C. § 7501. The appellant’s knowledge of these arrears, plus his duty and authority to remedy them, made him a responsible person under section 6672. Liddon, supra; Brown v. United States, 464 F.2d 590 (5th Cir. 1972); Hewitt v. United States, 377 F.2d 921 (5th Cir. 1967). The fact that others may also have had the duty and authority to remit the taxes does not relieve the appellant of section 6672 liability. Harrington v. United States, 504 F.2d 1306, 1312 (1st Cir. 1974); Burack v. United States, 461 F.2d 1282, 1291, 198 Ct.Cl. 855 (1972). Although the appellant may not always have had the “final” say about paying creditors, in the apocalyptic sense of that word, he did have significant control over disbursements. This is sufficient for section 6672 liability to attach. Hartman v. United States, 538 F.2d 1336, 1340 (8th Cir. 1976); Adams v. United States, 504 F.2d 73, 75 (7th Cir. 1974); Burack v. United States, supra at 1291; Turner v. United States, 423 F.2d 448, 449 (9th Cir. 1970). Such determinations as this are made on a case-by-case basis. We cannot say that the findings of the court below that Neckles was a responsible person are not supported by substantial evidence; they are. We are not left with a firm conviction that they are erroneous. This being so, whether we would have reached the same ones is of no import. AFFIRMED. . A shorthand phrase for one who may be held personally liable under § 6672 as a “person required to collect, truthfully account for, and pay over any tax" }, { "docid": "5275512", "title": "", "text": "6672 casts a broad net of liability, however, and the Bowlens did not escape it once Briggs took over the day-to-day operations of Cin-co Drilling. A person is responsible under section 6672 if he retains sufficient control of corporate finances that he can allocate corporate funds to pay the corporation’s other debts in preference to the corporation’s withholding tax obligations. Sawyer, 831 F.2d at 758. To be responsible under section 6672, a person need not necessarily have exclusive control over the disbursal of funds or have the final word as to which creditors should be paid so long as he has significant control. Adams v. United States, 504 F.2d 73, 75 (7th Cir.1974). Courts have recognized several indicia of responsible person status including ownership of stock or holding of an entrepreneurial stake in a corporation and authority to sign cheeks on corporate accounts or prevent their issuance by denying a necessary signature. Monday, 421 F.2d at 1214-15; Godfrey, v. United States, 748 F.2d 1568, 1576 (Fed.Cir.1984) (where a person has authority to sign the corporation’s checks, prevent their issuance, or control the voting stock of the corporation, he is generally a responsible person under section 6672); Burack v. United States, 461 F.2d 1282, 1291, 198 Ct.Cl. 855 (1972) (authority to cosign checks gives one the authority to decide which creditors should be paid). The existence of the same duty and concomitant liability in another officer of a corporation does not reduce the responsibility of a responsible person. Monday, 421 F.2d at 1214. Furthermore, delegation of the duty to turn over the taxes does not relieve a responsible person from liability. George v. United States, 819 F.2d 1008, 1012 (11th Cir.1987). In effect, responsibility under section 6672 encompasses all those connected closely enough with the business to prevent the default from occurring. Adams, 504 F.2d at 76. The Bowlens remained responsible persons during the third and fourth quarters of 1983. They retained their ownership interest in the corporation. They remained officers and directors of the corporation. They remained authorized signatories on corporate checks and admitted that they continued to sign checks" }, { "docid": "11574346", "title": "", "text": "memorandum and order holding that Caterino was not entitled to a refund and that the Government should prevail on its counterclaim. The court did not rely solely on Caterino’s filing of the tax returns, but considered the filing to be some evidence of the passage to him of control by default. Further, it found incredible Caterino’s testimony that he asserted no control over Northerlin’s daily affairs after Fleck left. Caterino appeals. II. Our task on appeal is to determine, first, whether the district court erred in finding that Caterino had sufficient control over Northerlin to render him “responsible” under section 6672 for the failure to remit the taxes withheld, and, second, whether the district court’s findings support an inference of “willfulness.” We turn to the former issue. A. Courts have explicitly given the word “responsible” a broad interpretation. Commonwealth National Bank of Dallas v. United States, 665 F.2d 743, 757 (5th Cir.1982). They have fashioned an elastic definition predicated upon the function of an individual in the employer’s business, not the level of the office held: whether the person had the power to determine whether' the taxes should be remitted or paid or had “the final word as to what bills should or should not be paid and when.” Adams v. United States, 504 F.2d 73, 75 (7th Cir.1974), cert. denied sub nom. Estate of Klein v. Commissioner, 421 U.S. 991, 95 S.Ct. 1998, 44 L.Ed.2d 482 (1975). In the context of this case, “the word ‘final’ means significant rather than exclusive control over the disbursement of funds.” Neckles v. United States, 579 F.2d 938, 940 (5th Cir.1978); Emshmller v. United States, 565 F.2d 1042, 1045 (8th Cir.1977); Adams, 504 F.2d at 75. Under certain circumstances, lenders and even employees of lenders have been held “responsible” under section 6672. Fidelity Bank N.A. v. United States, 616 F.2d 1181, 1185 (10th Cir.1980); United States v. Graham, 309 F.2d 210, 212 (9th Cir.1962). Although the rule appears harsh, as in other tax litigation a person who challenges a section 6672 assessment bears the burden of persuasion to prove lack of control. See" }, { "docid": "18906748", "title": "", "text": "12, 56 L.Ed.2d 275 (1978), each person responsible under Section 6672 is liable for that 100%. Thus, even if Philip Quattrone is held liable under 6672, the debtor, if found liable, will remain liable for 100% of the taxes owed. We conclude that the action between Philip Quattrone and the IRS to determine Philip’s Section 6672 liability to the IRS is not related to debtor’s bankruptcy. Therefore, the bankruptcy court does not have jurisdiction over Philip Quattrone’s claim. IV. We next address whether debtor, Quat-trone Accountants, is liable under Section 6672 as a responsible person who willfully failed to pay over withholding taxes. We hold that it is. The question of debtor’s liability under Section 6672 presents two issues: first, whether debtor is a responsible person; second, whether debtor willfully failed to collect or truthfully account for and pay over such tax. George v. United States, 819 F.2d 1008, 1011 (11th Cir.1987). We will first address the responsible person issue. A. A responsible person is a person required to collect, truthfully account for or pay over any tax. Slodov v. United States, 436 U.S. 238, 98 S.Ct. 1778, 56 L.Ed.2d 251 (1978). Responsibility is a matter of status, duty or authority, not knowledge. Mazo v. United States, 591 F.2d 1151 (5th Cir.1979). The responsible person need not be a corporate officer. Adams v. United States, 504 F.2d 73 (7th Cir.1974). A person is responsible if the person has significant, though not necessarily exclusive, control over the employer’s finances. United States v. Vespe, 868 F.2d 1328, 1332 (3d Cir.1983). A person has significant control if he has the final or significant word over which bills or creditors get paid. Commonwealth National Bank of Dallas v. United States, 665 F.2d 743, 757 (5th Cir.1982). Here, the evidence indicated that debtor had such control over the finances of UDF to become a responsible person. Debtor argues that the bankruptcy court overlooked the uncontradicted testimony of one of the members of UDF’s board of directors who stated the Board made the policy decisions and that President Hayes handled the day-to-day decisions. Debtor asserts that" }, { "docid": "11574350", "title": "", "text": "to allow Caterino to escape liability under section 6672. It may appear severe to impose liability upon a non-officer of a company, but Congress has chosen to impose responsibility on one who has the ability to determine whom a company will or will not pay. Adams v. United States, supra. Early in 1974, by virtue of the substantial loans Caterino had arranged or guaranteed for Northerlin, he had become a dominant force in piloting the course of the company. He was instrumental in installing Fleck as general manager. Fleck’s abandonment of Northerlin created a power vacuum and Northerlin employees apparently looked to Caterino to fill it. The mailing of the withholding tax returns to Caterino illustrated the devolution of authority to him. The evidence shows that Caterino did have the ability to significantly determine the flow of disbursements of funds by Northerlin. He did not become liable solely by ordering his bookkeeper to sign and mail the forms. Rather, the management’s abdication together with the mailing of the returns to and their filing by Caterino demonstrate that he had become the only remaining authority figure and that he had the power to substantially control whom Northerlin paid. We conclude that the district court’s finding that Caterino had sufficient power in early April 1974 to control what creditors Northerlin would pay is not clearly erroneous. Therefore, its conclusion that Caterino is “responsible” within the meaning of section 6672 is not incorrect. B. The district court did not directly address the “willfulness” requirement. Willfulness in this context is the “voluntary, conscious, and intentional decision to prefer other creditors to the United States.” Harrington, 504 F.2d at 1311; Newsome v. United States, 431 F.2d at 742, 746 (5th Cir.1970). Any responsible person who knows the taxes are not paid and allows the business to pay other creditors acts willfully. See Maggy, 560 F.2d at 1375; Hartman v. United States, 538 F.2d 1336, 1341 (8th Cir.1976). Evil motive and specific intent are not necessary elements. Harrington, 504 F.2d at 1311; Monday v. United States, 421 F.2d 1210, 1216 (7th Cir.1970). Mere knowledge, or reckless" }, { "docid": "9782780", "title": "", "text": "to the United States. Bowlen, 956 F.2d at 727. Once the government has assessed a taxpayer for the nonpayment of taxes under section 6672, the taxpayer bears the burdens of production and persuasion to disprove his status as a responsible person who willfully failed to collect, account for, or pay over the taxes. Ruth v. United States, 823 F.2d 1091 (7th Cir.1987). A taxpayer can be held liable as a responsible person under section 6672 in this circuit “if he retains sufficient control of corporate finances that he can allocate corporate funds to pay the corporation’s other debts in preference to the corporation’s withholding tax obligations.” Bowlen, 956 F.2d at 728. Having significant control does not mean having exclusive control over the disbursal of funds or the final say over whether taxes or bills are paid. Id. More than one taxpayer can be a responsible person in a given instance. Id. The concept of responsibility in this context does not focus on whether a particular taxpayer could himself have paid the taxes; rather, it focuses on whether the taxpayer could have impeded the flow of business to the extent necessary to prevent the corporation from squandering the taxes it withheld from its employees. See id. (noting that “responsibility under section 6672 en compasses all those connected closely enough with the business to prevent the default from occurring.”)- Indicia of a responsible person include possessing eheckwriting authority (and the converse authority to refuse to write checks), id., and holding a corporate office, see Monday v. United States, 421 F.2d 1210, 1214-15 (7th Cir.1970), cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970) (noting that holding corporate office does not per se impose a duty, but that an officer may have such a duty even if he is not the disbursing officer so long as he otherwise has sufficient power within the corporate structure). “Willful,” as the term is used in section 6672, means “voluntary, conscious and intentional — as opposed to accidental— decisions not to remit funds properly withheld to the government.” Monday, 421 F.2d at 1216 (citations" }, { "docid": "18513830", "title": "", "text": "amount of the tax evaded, or not collected, or not accounted for and paid over.... “The purpose of the 100 percent penalty provision ‘is to permit the taxing authority to reach those [persons] responsible for the corporations’ failure to pay the taxes which are owing.’” Godfrey v. U.S., 748 F.2d 1568, 1574 (Fed.Cir.1984) (quoting White v. U.S., 372 F.2d 513, 516 (Ct.Cl.1967)). More than one person may be assessed pursuant to § 6672, and each person assessed is liable for the total amount of unpaid withholding taxes. In re Bourque, 153 B.R. 87, 92 (Bankr.D.Mass.1993). Liability pursuant to § 6672 is contingent upon a finding that the taxpayer is “responsible” and acted “willfully” within the meaning of the statute. Caterino v. U.S., 794 F.2d 1, 2 (1st Cir.1986), cert. denied, 480 U.S. 905, 107 S.Ct. 1347, 94 L.Ed.2d 518 (1987). The First Circuit has stated that in the context of § 6672, [c]ourts have explicitly given the word “responsible” a broad interpretation. They have fashioned an elastic definition predicated upon the function of an individual in the employer’s business, not the level of the office held: whether the person had the power to determine whether the taxes should be remitted or paid or had “the final word as to what bills should or should not be paid and when.” ... “[T]he word ‘final’ means significant rather than exclusive control over the disbursement of funds.” Caterino v. U.S., 794 F.2d at 5 (citations omitted). Responsibility has been defined in terms of the taxpayer’s status, duty and authority. In re Bourque, 153 B.R. at 92. A person’s “duty” under § 6672 must be viewed in light of his power to compel or prohibit the allocation of corporate funds. It is a test of substance, not form. Thus, where a person has authority to sign the checks of the corporation, or to prevent their issuance by denying a necessary signature, or where that person controls the voting stock of the corporation, he will generally be held responsible. Id. (quoting Godfrey v. U.S., 748 F.2d at 1576 (omitting citations)). Other factors relevant to a" }, { "docid": "11397041", "title": "", "text": "F.2d 1282, 1291, 198 Ct.Cl. 855 (1972). Although the appellant may not always have had the “final” say about paying creditors, in the apocalyptic sense of that word, he did have significant control over disbursements. This is sufficient for section 6672 liability to attach. Hartman v. United States, 538 F.2d 1336, 1340 (8th Cir. 1976); Adams v. United States, 504 F.2d 73, 75 (7th Cir. 1974); Burack v. United States, supra at 1291; Turner v. United States, 423 F.2d 448, 449 (9th Cir. 1970). Such determinations as this are made on a case-by-case basis. We cannot say that the findings of the court below that Neckles was a responsible person are not supported by substantial evidence; they are. We are not left with a firm conviction that they are erroneous. This being so, whether we would have reached the same ones is of no import. AFFIRMED. . A shorthand phrase for one who may be held personally liable under § 6672 as a “person required to collect, truthfully account for, and pay over any tax imposed by this title who wilfully fails to collect such tax, or truthfully account for and pay over such tax, or wilfully attempts in any manner to evade or defeat any such tax or the payment thereof . . .In the recent decision of Slodov v. United States, -U.S.-,-, 98 S.Ct. 1778, 56 L.Ed.-2d 251, 263 (1978), the Court concluded that the above language was intended to limit § 6672 to persons responsible for collection of third-party taxes and not merely “to those persons in a position to perform all three of the enumerated duties with respect to the tax dollars question.”" }, { "docid": "11574352", "title": "", "text": "disregard for known risks, is sufficient. Monday, 421 F.2d at 1215. It is undisputed that Caterino learned of the unpaid 1973 withholding taxes no later than March 1974, and of the unpaid 1974 withholding taxes when he received the returns in April and July of 1974. He contends, however, that no evidence was introduced that in 1974 Northerlin diverted funds to pay other creditors or that it even had any funds. This argument fails for two reasons; first, Caterino did not raise the issue in the district court; second, he had the statutory burden of proof in this proceeding and he never attempted to meet it on this issue. Wilfulness for purpose of section 6672 means no more than knowledge that taxes are due and withheld and conscious disregard of the obligation to remit them. We have no difficulty in inferring willfulness from the district court’s finding that Cater-ino had assumed control over Northerlin early in 1974 and had directed the filing of the tax returns. III. We perceive no error in the district court’s conclusion that Caterino was liable under 26 U.S.C. § 6672. Accordingly, we affirm the district court’s judgment imposing liability on Caterino for Northerlin’s withheld income and social security taxes for the first two quarters of 1974. AFFIRMED. . Responsible persons under section 6672 can include those who are neither officers nor employees of the corporation owing the taxes. Fidelity Bank v. United States, 616 F.2d 1181, 1185 (10th Cir.1980); Pacific National Insurance Co. v. United States, 422 F.2d 26, 30 (9th Cir.), cert. denied, 398 U.S. 937, 90 S.Ct. 1838, 26 L.Ed.2d 269 (1970); Commonwealth National Bank of Dallas, 665 F.2d at 750-51; Werner, 374 F.Supp. at 562. The statute may impose responsibility on a surety for the employer, Pacific National Insurance Co., 422 F.2d at 30-31, a creditor of the employer, Adams, 504 F.2d at 75-76; Mueller v. Nixon, 470 F.2d 1348, 1350 (6th Cir.1972); Commonwealth Bank of Dallas, 665 F.2d at 755, and an individual who provides funds to the employer, Werner, 374 F.Supp. at 562. . Caterino argues on appeal that the" }, { "docid": "11574348", "title": "", "text": "United States v. Rexach, 482 F.2d 10, 16-17 (1st Cir.), cert. denied, 414 U.S. 1039, 94 S.Ct. 540, 38 L.Ed.2d 330 (1973); United States v. Pompanio, 635 F.2d 293, 296 (4th Cir.1980). The district court concluded that Caterino did not carry this burden and is therefore “responsible” under section 6672. Central to this appeal is Caterino’s contention that the district court erred in finding that, for the first two quarters of 1974, he had sufficient control of the company to decide whom to pay and not to pay. This court cannot reverse merely because it is convinced that it would have decided the question differently; we must ascertain whether the finding of fact is clearly erroneous. Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 1511-13, 84 L.Ed.2d 518 (1985). We must affirm if the finding is reasonably supported on the record as a whole, Bruce Drug, Inc. v. Hollister Inc., 688 F.2d 853, 854 (1st Cir.1982). We must reverse when a review of the entire evidence leaves this court with the “definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). We are persuaded that the district court’s overview of Caterino’s evolving relationship with Northerlin is accurate. Caterino commenced his relationship with Northerlin in a normal effort to have Graham Stuart acquire it. By the fall of 1973, however, his frustrated struggle to consummate the purchase reached a point where he personally was becoming directly involved in the financial and operational problems of the foundering prospect. He lent money to Northerlin because of the planned acquisition; when it became evident that the sale could not be concluded, Caterino cemented his relationship to protect his loans. He testified that he asserted no control over Northerlin’s daily affairs prior to purchasing the company’s capital stock in July 1974, despite his frequent contacts with the company. The district court, however, did not find this testimony to be credible. Moreover, failure to assert control over the operations of the company is not sufficient" } ]

[ { "docid": "23255203", "title": "", "text": "of interstate commerce.” United States v. Consolidated Laundries Corp., 291 F.2d 563, 573 (2d Cir. 1971). Some commentators have argued, however, that relevant market should be considered a necessary element of Section 2 conspiracy claims, at least in civil cases. See, e.g., 3 Von Kalinowski, supra, § 9.02[4]. In our view, a civil Section 2 conspiracy claim, standing alone, does require a minimal showing of product and geographic context — upon what and where the alleged conspiracy is focused — to ensure that a claim is not based upon some abstract showing of unlawful intent. The nature of such proof, however, is simply to show the context of the conspiracy. It need not be as rigorous as the relevant market showing for other Section 2 claims, because actual attainment or “dangerous probability” of monopoly power is not at issue in a conspiracy claim. These general antitrust principles must be construed in light of the immunity afforded farm cooperatives under the Cap-per-Volstead Act, 7 U.S.C. § 291. Such entities are exempt from liability for price-fixing and other joint marketing efforts which seek to achieve the lawful aims of the cooperative movement, i.e., collective marketing of farm products so as to improve economic conditions for individual farmers. See, e.g., Maryland & Virginia Milk Producers Assoc, v. United States, 362 U.S. 458, 466, 80 S.Ct. 847, 853, 4 L.Ed.2d 880 (1960). Cooperatives may combine with each other to do together what they may lawfully do individually and, hence, they cannot be conspirators to the extent their concerted action is in pursuit of legitimate aims. See Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U.S. 19, 82 S.Ct. 1130, 8 L.Ed.2d 305 (1962) (Sunkist I). Similarly, cooperatives may, singly or in combination with other exempt cooperatives, obtain monopoly power in a given market so long as it is achieved through natural growth, voluntary confederation and without resort to predatory or anti-competitive practices. E.g., Fairdale Farms v. Yankee Milk, Inc., 635 F.2d 1037, 1044 (2d Cir. 1980). Capper-Volstead provides only limited immunity and co-ops have occasionally sought to extend their market power" } ]

[ { "docid": "18626977", "title": "", "text": "and attempt to monopolize the sale of canning tomatoes in California by CTGA. Although Sherman Act § 2 makes it unlawful for any person to monopolize, attempt to monopolize, or conspire with another to monopolize trade, there exists an “inherent conflict between this provision and those of Capper-Volstead which legitimize the collective action of farmers in the marketing of their products.” Fairdale Farms, Inc. v. Yankee Milk, Inc., supra, 635 F.2d at 1040. Just as Capper-Volstead protects certain conduct from § 1 of the Sherman Act, it also shields certain combinations or conspiracies to monopolize between or among agricultural associations from the limitations of Sherman Act § 2. See Treasure Valley Potato Bargaining Association v. Ore-Ida Foods, Inc., supra. It would be anomalous indeed to hold that a defendant agricultural association’s alleged § 1 combination constituted a legitimate Capper-Volstead purpose, while claims based upon the same facts which are brought under § 2 are not similarly protected. Since both the § 1 claim and the § 2 combination and conspiracy claims in the instant casé are predicated upon defendants’ alleged price fixing, and since the Court has already established with regard to § 1 that price fixing is a legitimate Capper-Volstead purpose, the Court holds that the alleged § 2 violations are also immunized. “It is not unlawful under the antitrust acts for a Capper-Volstead cooperative . .. to try to acquire even 100% of the market if it does it exclusively through marketing agreements approved under the CapperVolstead Act.” Cape Cod Food Products v. National Cranberry Association, 119 F.Supp. 900 (D.Mass.1954). Because an agricultural cooperative may lawfully achieve 100% of a market, it necessarily follows that two or more such organizations may together hold such monopoly power. A contrary holding would “impose grave legal consequences upon organizational distinctions that are of de minimis meaning and effect .. .. ” Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., supra, 370 U.S. at 29, 82 S.Ct. at 1135. Given that price fixing is a legitimate Capper-Volstead purpose — even where such activity fosters a monopoly of one or more" }, { "docid": "10742417", "title": "", "text": "States, 436 U.S. 816, 822, 98 S.Ct. 2122, 56 L.Ed.2d 728 (1978) (footnote omitted). It was passed by Congress in 1922 “to make it clear that the formation of an agricultural organization with capital would not result in a violation of the antitrust laws, and that the organization, without antitrust consequences, could perform certain functions in preparing produce for market.” Id. at 824, 98 S.Ct. 2122; see also Newark Gardens, Inc., 847 F.2d at 1208 (noting that the Capper-Volstead Act “exempts agricultural cooperatives from the antitrust laws”). The Capper-Volstead Act includes within its scope agricultural producers who “act together in associations ... in collectively processing, preparing for market, handling, and marketing [farm products] in interstate and foreign commerce.” 7 U.S.C. § 291. “The real sense behind such an association and the prime purpose of the persons so banding together is to accomplish a common objective — collective marketing. It is a collection of producers cooperating to sell the goods they have produced.” United States v. Elm Spring Farm, Inc., 38 F.Supp. 508, 511 (D.Mass.1941); see also Alexander v. Nat’l Farmers Org., 687 F.2d 1173, 1185 (8th Cir.1982) (“The unmistakable purpose of the Cap-per-Volstead Act is to permit farmers and only farmers to band together and benefit economically from collective marketing of their products.”). In its motion to dismiss, Tyson argued that the TPGA does not qualify as an AFPA “association of producers” because Terry does not allege that the TPGA engaged in the requisite “marketing, bargaining, shipping, or processing” activities enumerated in § 2302(c); instead, Terry’s complaint avers only that the TPGA gathered information, educated its members, and reported complaints about Tyson and other processors to the government — functions purportedly outside of the purview of the AFPA. The district court examined Terry’s complaint and, relying on the plain language of § 2302(c), agreed with Tyson that the TPGA does not fall within the statutory definition of an “association of producers”: Interpreting § 2302(c), the United States Court of Appeals for the Sixth Circuit has held that a state-run potato commission was not an “association of producers” because it did" }, { "docid": "1496386", "title": "", "text": "the dictates of the USDA — an issue that has not been decided — defendants fail to offer sufficient evidence to permit a trier of fact reasonably to conclude that the policy arose from any “lobbying efforts” by defendants. The Noerr-Pennington doctrine “has been applied only to situations involving direct actions made to influence governmental decisionmaking_ Noerr-Pennington immunity should not extend to actions occurring in an essentially private context.” Mid-Texas Communications Sys., Inc. v. American Tel. & Tel. Co., 615 F.2d 1372, 1382-83 (5th Cir.), cert. denied sub nom. Woodlands Telecommunications Carp, v. Southwestern Bell Tel. Co., 449 U.S. 912, 101 S.Ct. 286, 66 L.Ed.2d 140 (1980). The Court finds as a matter of law that defendants cannot rely on the Noerr-Pen-nington doctrine as a defense in this case. As a result, their motion for summary judgment on this issue is DENIED and plaintiffs’ motion for summary judgment is GRANTED. 4. Capper-Volstead Act Immunity The Capper-Volstead Act, along with other statutes, provides an antitrust exemption for certain “agricultural cooperatives.” More specifically, [p]ersons engaged in the production of agricultural products ... may act together in associations, corporate or otherwise, ... in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged ... and such associations and their members may make the necessary contracts and agreements to effect such purposes. 7 U.S.C. § 291. The Capper-Volstead Act extends the scope of antitrust exemption granted to agricultural cooperatives by Section 6 of the Clayton Act, 15 U.S.C. § 17, which reads, “Nothing in the antitrust laws shall be construed to forbid the existence and operation of ... agricultural ... organizations, instituted for the purposes of mutual help.” Finally, Section 5 of the Cooperative Marketing Act was enacted for the purpose of making it clear that agricultural cooperatives were free to exchange and disseminate marketing, economic, and agricultural production data among themselves without incurring antitrust liability. 7 U.S.C. § 455. As this Court determined in its Memorandum-Decision and Order (“MDO”) issued on September 22, 1994, an agricultural cooperative must satisfy two requirements in order to" }, { "docid": "1496400", "title": "", "text": "exempt from the Donnelly Act to the extent it has entered into contracts or agreements with actual cooperative associations, such as its member affiliates. Both sides in this case appear to have misstated New York law regarding the Donnelly Act. The Court finds that the New York Legislature, in crafting the Donnelly Act, intended to duplicate Congress’ agricultural exemptions to the Capper-Volstead Act. Thus the Legislature, like Congress, “intended to exempt from the operation of the antitrust laws only legitimate activities and agreements undertaken to organize and operate the co-operative association and to further the collective sales and marketing of members’ products.” New York v. Elmhurst Milk & Cream Co., 116 Misc.2d 140, 455 N.Y.S.2d 473, 481 (Sup.Ct.1982). See also New York v. Wisch, 58 Misc.2d 766, 296 N.Y.S.2d 882, 888 (Sup.Ct.1969) (exemption intended only “to protect ... co-operatives and their officers and employees from the claim that by their very formation they were violating [the Donnelly Act] ”). The Court consequently will analyze defendant’s Donnelly Act argument just as it analyzed defendants’ Capper-Volstead argument. The Court first finds that Nat’l DHIA qualifies as a “cooperative association of dairymen” under N.Y.Bus.Law 340(3). As with Capper-Volstead, Nat’l DHIA is an organization whose true members are cooperative associations composed exclusively of dairymen. The Court will not countenance plaintiffs’ argument that what could be called a “cooperative association of cooperative associations of dairymen” lies beyond the scope of Donnelly Act immunity for producer organizations. Second, if all inferences are drawn in a light most favorable to plaintiffs as the non-moving parties, the facts as alleged and as supported by affidavits may indeed support claims for antitrust violations against defendants. Accordingly, as with Capper-Volstead, a genuine issue of material fact exists over whether the Donnelly Act exemption applies to defendant Nat’l DHIA. Summary judgment for defendant Nat’l DHIA on plaintiffs’ Donnelly Act claim is DENIED. C. PLAINTIFFS’ CROSS-MOTIONS FOR SUMMARY JUDGMENT To the extent the Court has not addressed plaintiffs’ motions for summary judgment on their Sherman Act §§ 1 and 2 claims, the motions are DENIED for two reasons. First, as the Court" }, { "docid": "23255212", "title": "", "text": "The Capper-Volstead Act, 7 U.S.C. § 291, was adopted in 1922 to make clear that the antitrust laws would not prohibit farmers from organizing collectively for purposes of marketing their products. The Supreme Court has construed the exemption as permitting “farmer-producers to * * * fix prices at which their cooperative will sell their produce * * * without thereby violating the antitrust laws.” Maryland & Virginia Milk Producers Assoc., supra, 362 U.S. at 466, 80 S.Ct. at 853 (emphasis added). Thus, the milk marketing arrangements of NFO are clearly within the scope of activities contemplated under the Capper-Volstead exemption. The exemption is an affirmative defense and NFO introduced sufficient evidence to establish prima facie entitlement to the exemption. The stipulated facts show that NFO is a nonprofit, non-stock corporation which gives collective bargaining and marketing services exclusively to its members in connection with their agricultural commodities. The record further shows that in 1970, the Department of Agriculture deemed NFO to be a qualified cooperative marketing association, although the parties disputed that determination when it was made and do so here as well., The challenge to NFO’s exemption relates to (1) the corporate structure of its marketing program, and (2) certain non-farmers who appear to have been members of NFO at various periods. The structural issue arises because NFO’s bylaws prohibit distribution of income to its members. As a result, when it began to market milk, NFO created a separate legal entity — essentially a trust custodial account — that received payment for milk sales and, in turn, paid the producers. The Capper-Volstead Act requires that a cooperative be “operated for the mutual benefit of the members thereof, as such producers.” 7 U.S.C. § 291. Mid-Am argues that because NFO cannot distribute income, its marketing program cannot be considered to be “for the mutual benefit” of its members. This precise claim' was squarely rejected in Waters v. NFO, Inc., 328 F.Supp. 1229, 1245 (S.D.Ind.1971). We also find no merit in Mid-Am’s claim. Mid-Am concedes that the NFO Trust properly operates for the mutual benefit of producer-members who market through NFO." }, { "docid": "17764992", "title": "", "text": "seq. Neither situation is here present. There is no allegation that Central or its members have combined or attempted to combine with nonproducers, nor is there any allegation that defendants have engaged in predatory practices or have attempted to monopolize, or monopolized, the market by unlawful means. III. The principal dispute between the parties here concerns the scope of the protection afforded by Capper-Volstead, and the effect of Capper-Volstead on the Section 6 exemption. Northern contends that Section 6 and Capper-Volstead must be read together, and thus Central’s claim to immunity must rise or fall on whether or not it is engaged in “collective marketing” within the meaning of Capper-Volstead. Northern asserts that the antitrust exemption afforded by Section 6 and CapperVolstead is limited in scope and should be construed narrowly. Accordingly to Northern, the purpose of the exemptions was to give farmers greater bargaining power by allowing them to form associations to perform specific functions, i.e., collective marketing, processing, and handling. The thrust of the exemption, therefore, was to put farmers on an equal basis with corpo rate middlemen and buyers by allowing the farmers to do business in a corporate-type form. Thus, Northern concludes the purpose of the limited exemption for agricultural cooperatives is to permit farmers to associate for mutual benefit by acting collectively through the single medium of a cooperative. The statutory exemptions contemplate that a cooperative will represent its members and that it will be the entity through which the members act. Northern then argues that Central does not engage in collective marketing within the meaning of Capper-Volstead, and thus the action of Central and its members constitutes illegal price-fixing, a per se violation of Section 1, because each member of Central acts independently for its own account in every material aspect except for the determination of the price range at which it sells. Since Central does not grow, harvest, ship, sell or negotiate for sale in its own name, Northern contends that it is not engaged in “collective marketing”. Essentially, Northern argues that an agricultural cooperative must engage in bargaining, selling, processing or handling" }, { "docid": "5754601", "title": "", "text": "that though there are some differences between Capper-Volstead and the Fisherman’s Act, the two Acts provide exemptions from antitrust liability for essentially the same activities, the primary difference being the fact that one Act applies to the agricultural industry and the other to the fishing industry. Thus, in view of the facts presented by this case, including defendant’s argument that he and his alleged co-conspirators are both \"farmers” and ’’fisherman\" as those terms are defined in the two Acts, the court concludes that it does not matter under which Act the conduct at issue in this case is analyzed. As noted by the defendant at the hearing before this court, whether the conduct here is exempt or not, it is the same under either Act. . The evidence presented at the hearing pertained to only three of the defendant's alleged co-conspirators—Country Skillet, Farm Fresh and Magnolia Processing, Inc. d/b/a Pride of the Pond. For the reasons discussed infra, the court finds that at the time charged in the indictment, neither Country Skillet nor Farm Fresh was qualified to act collectively in accordance with the Capper-Volstead Act. As the Supreme Court made clear in National Broiler Marketing Ass'n v. United States, 436 U.S. 816, 823, 98 S.Ct. 2122, 2127, 56 L.Ed.2d 728 (1978) (discussed further infra), a defendant, in order to avoid antitrust liability under the Capper-Volstead Act, must establish more than just the fact that he is qualified to act collectively under the Act, but he must also establish that all those with whom he allegedly associated are likewise entitled to the Act's protection. Because the court is of the opinion that neither Country Skillet nor Farm Fresh falls within the limited exemption provided by the Capper-Volstead Act, the court, in determining whether the defendant has sustained his Capper-Volstead challenge to the indictment, need not decide if the other alleged co-conspirators hold exempt status under the Act. This opinion, therefore, will focus on the catfish-producing activities of Country Skillet and Farm Fresh as they relate to the defendant’s claim of immunity pursuant to the Capper-Volstead Act. . Country Skillet is" }, { "docid": "18626974", "title": "", "text": "so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes.” 7 U.S.C. § 291. The courts have broadly interpreted this statute to afford farmers’ associations significant exemptions from the antitrust laws. See, e. g., Maryland and Virginia Milk Producers Association v. United States, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880 (1960); Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U.S. 19, 82 S.Ct. 1130, 8 L.Ed.2d 305 (1962); Treasure Valley Potato Bargaining Association v. Ore-Ida Foods, Inc., 497 F.2d 203 (9th Cir. 1974), cert. denied, 419 U.S. 999, 95 S.Ct. 314, 42 L.Ed.2d 273 (1974). Generally, the Capper-Volstead Act allows agricultural producers to act in association “[to] make the necessary contracts to accomplish their legitimate purpose.” Treasure Valley Potato Bargaining Association v. Ore-Ida Foods, Inc., supra, 497 F.2d at 214. This court has held that price fixing is a legitimate purpose under the Act. See Northern California Supermarkets, Inc. v. Central California Lettuce Producers Cooperative, 413 F.Supp. 984 (N.D.Cal.1976), aff’d. 580 F.2d 369 (9th Cir. 1978), cert. denied, 439 U.S. 1090, 99 S.Ct. 873, 59 L.Ed.2d 57 (1979). Plaintiff apparently contends that while individual farmers may combine within one organization to pursue their legitimate purposes, CapperVolstead protection is lost when two or more such organizations associate for the same reasons. This argument, however, has been soundly rejected by previous decisions. For example,’the court in Treasure Valley Potato Bargaining Association v. Ore-Ida Foods, Inc., supra, 497 F.2d at 214, stated that: “If Section 1 of the Capper-Volstead Act, 7 U.S.C. § 291, permits a common marketing agency, separate from the cooperatives themselves, it would follow that without such a separate agency, the associations may act together in marketing and make the necessary contracts to accomplish their legitimate purpose.” See Fairdale Farms, Inc. v. Yankee Milk, Inc., 635 F.2d 1037 (2d Cir. 1980). In short, that which agricultural producers may combine to accomplish within a single association, they may lawfully combine to achieve by way of multiple organizations. “To hold" }, { "docid": "22550191", "title": "", "text": "to the Chicago marketing area, and hence that this cause is moot. But that order affects a period subsequent to the time covered by the indictment. These contentions are unavailing in relation to the question before us. . Our conclusion is that the Agricultural Adjustment Act as reenacted and amended by the Agricultural Marketing Agreement Act affords no ground for construing the Sherman Act as inapplicable to the charges contained in counts one, two and four. (2) There remains the question whether the court below rightly held that the Capper-Volstead Act had modified the Sherman Act so as to exempt the Pure Milk Association, a cooperative agricultural organization, and. its officers and agents, from prosecution under these counts. As to the Capper-Volstead Act the court said: “This Act legalizes price fixing for those within its purview. To that extent it modifies the. Sherman Act. It removes from the Sherman Act those organizations, cooperative in their nature, which come within the purview of the Capper-Volstead Act. Prior to the Capper-Vol-stead Act farmers were treated no differently than haliers under the antitrust laws, so far as price fixing was Concerned. ... “The Capper-Volstead Act does not condemn any kind of monopoly or restraint of trade, or any price fixing, unless such monopoly or price .fixing unduly enhances the price of an agricultural product. The Act then, by section 2 thereof, commits to an officer of the executive department, the Secretary of Agriculture, the power of regulation and visitation. - “Under this act farmers are favored under the antitrust laws in that they are given a qualified right, free from any criminal liability, to combine among themselves to monopolize and restrain interstate trade and commerce in farm products and to fix and enhance the price thereof. “ . . . The court deduces from the Capper-Volstead Act that the Secretary of Agriculture has exclusive. jurisdiction to determine and order, in the first instance, whether or not farmer cooperatives, in their operation'^ monopolize and restrain interstate trade and commerce ‘to such an extent that the price of any agricultural product is unduly enhanced’. Until" }, { "docid": "18626975", "title": "", "text": "Producers Cooperative, 413 F.Supp. 984 (N.D.Cal.1976), aff’d. 580 F.2d 369 (9th Cir. 1978), cert. denied, 439 U.S. 1090, 99 S.Ct. 873, 59 L.Ed.2d 57 (1979). Plaintiff apparently contends that while individual farmers may combine within one organization to pursue their legitimate purposes, CapperVolstead protection is lost when two or more such organizations associate for the same reasons. This argument, however, has been soundly rejected by previous decisions. For example,’the court in Treasure Valley Potato Bargaining Association v. Ore-Ida Foods, Inc., supra, 497 F.2d at 214, stated that: “If Section 1 of the Capper-Volstead Act, 7 U.S.C. § 291, permits a common marketing agency, separate from the cooperatives themselves, it would follow that without such a separate agency, the associations may act together in marketing and make the necessary contracts to accomplish their legitimate purpose.” See Fairdale Farms, Inc. v. Yankee Milk, Inc., 635 F.2d 1037 (2d Cir. 1980). In short, that which agricultural producers may combine to accomplish within a single association, they may lawfully combine to achieve by way of multiple organizations. “To hold otherwise would be to impose grave legal consequences upon organizational distinctions that are of de minimis meaning and effect.” Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., supra, 370 U.S. at 29, 82 S.Ct. at 1135. Of course, this exemption would be forfeited were any of the associated parties “non-producers”; however, Tri-Valley, Cal-Can and CTGA are each “producers” under the Act. See Treasure Valley Potato Bargaining Association v. Ore-Ida Foods, Inc., supra, 497 F.2d at 216. Accordingly, since price fixing is a legitimate Capper-Volstead purpose, and since two or more agricultural associations may act together in the furtherance of such legitimate activities, the alleged conduct of Tri-Valley, Cal-Can and CTGA is protected from the dictates of Sherman Act § 1. The Sherman Act § 2 Claims. Plaintiff’s Sherman Act § 2 claims focus upon: (1) an alleged combination among Tri-Valley, Cal-Can and CTGA to monopolize non-brand name tomato canning in California; (2) an alleged conspiracy between Tri-Valley and Cal-Can to monopolize certain submarkets of processed tomato products; and (3) an alleged monopolization of" }, { "docid": "1496393", "title": "", "text": "in, rejecting any “hyper-technical” reading of the Capper-Volstead Act. Fairdale Farms, Inc. v. Yankee Milk, Inc., 635 F.2d 1037, 1040 (2d Cir.1980), cert. denied, 454 U.S. 818, 102 S.Ct. 98, 70 L.Ed.2d 88 (1981). See also Northern California Supermarkets, Inc. v. Central California Lettuce Producers Cooperative, 413 F.Supp. 984, 990 (N.D.Cal.1976), aff'd, 580 F.2d 369 (9th Cir.1978), cert. denied, 439 U.S. 1090, 99 S.Ct. 873, 59 L.Ed.2d 57 (1979). In the case at bar, the Complaint by its own terms states that defendants are in the business of “testing milk and providing the ‘official’ milk production records for dairy farmers.” As such, each defendant clearly has demonstrated that it is performing a “marketing” function within the meaning of the Cooperative Marketing and Capper-Volstead Acts. Accordingly, each defendant has satisfied the second requirement for antitrust immunity. Despite the preferred treatment given to agricultural producers, the CapperVolstead Act was not intended to create an absolute shield from antitrust liability for agricultural cooperatives. Farmers and their organizations have been held to lose protection from antitrust attack when they combine with nonproducer “outsiders” to unreasonably restrain trade under Section 1 of the Sherman Act. See 15 U.S.C. § 1; United States v. Borden Co., 308 U.S. 188, 204-05, 60 S.Ct. 182, 191, 84 L.Ed. 181 (1939). Nor are farmers immune when they or their cooperative engage in predatory practices directed at restraining trade, or use their legitimately acquired monopoly power in such a manner as to smother competition under Section 2 of the Sherman Act. See 15 U.S.C. § 2; Maryland and Virginia Milk Producers Ass’n v. United States, 362 U.S. 458, 465-66, 80 S.Ct. 847, 852-53, 4 L.Ed.2d 880 (1960). Plaintiffs allege that defendants fall within both of these exceptions to the agricultural exemption. Plaintiffs first argue that defendants’ contracts with the DRPCs, the AI industry, and other trade associations restrain trade such that defendants should lose their antitrust immunity. As an initial matter, the Court agrees with defendants that merely contracting with non-exempt parties does not destroy defendants’ protection. See 7 U.S.C. § 291. Borden indicates that a cooperative must contract or" }, { "docid": "18626978", "title": "", "text": "are predicated upon defendants’ alleged price fixing, and since the Court has already established with regard to § 1 that price fixing is a legitimate Capper-Volstead purpose, the Court holds that the alleged § 2 violations are also immunized. “It is not unlawful under the antitrust acts for a Capper-Volstead cooperative . .. to try to acquire even 100% of the market if it does it exclusively through marketing agreements approved under the CapperVolstead Act.” Cape Cod Food Products v. National Cranberry Association, 119 F.Supp. 900 (D.Mass.1954). Because an agricultural cooperative may lawfully achieve 100% of a market, it necessarily follows that two or more such organizations may together hold such monopoly power. A contrary holding would “impose grave legal consequences upon organizational distinctions that are of de minimis meaning and effect .. .. ” Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., supra, 370 U.S. at 29, 82 S.Ct. at 1135. Given that price fixing is a legitimate Capper-Volstead purpose — even where such activity fosters a monopoly of one or more agricultural associations — the § 2 combination and conspiracy allegation must fall under the weight of Congress’s intent to immunize such conduct from the antitrust laws. The only limitation upon attempts, conspiracies, or combinations to monopolize undertaken by Capper-Volstead organizations is that such groups may “neither acquire nor exercise monopoly power in a predatory fashion .. .. ” Fairdale Farms, Inc. v. Yankee Milk, Inc., supra, 635 F.2d at 1044. See Maryland and Virginia Milk Producers Association v. United States, supra, 362 U.S. at 463, 80 S.Ct. at 851. The types of predatory conduct necessary for holding an agricultural association liable under § 2 are well established. See Otto Milk Co. v. United Dairy Farmers Cooperative Association, 388 F.2d 789 (3d Cir. 1967) (picketing); North Texas Producers Association v. Metzger Dairies, Inc., 348 F.2d 189 (5th Cir. 1965), cert. denied, 382 U.S. 977, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966) (boycotts and coercion); Gulf Coast Shrimpers and Oystermans Association v. United States, 236 F.2d 658 (5th Cir. 1956), cert. denied, 352 U.S. 927, 77 S.Ct." }, { "docid": "18626981", "title": "", "text": "369 F.2d 449, 458 (9th Cir. 1966). However, the Court does not believe that this decision demands “the full application of the second element of [the Grinnell ] test to agricultural cooperatives.” Fairdale Farms, Inc. v. Yankee Milk, Inc., supra, 635 F.2d at 1045. The Court views the principle articulated by the Second Circuit in the Fairdale Farms case as the controlling statement of law on this subject, and interprets Case-Swayne to be consistent with this expression: “[W]hile the formation, growth and operation of a powerful cooperative is obviously a ‘willful acquisition or maintenance of such power,’ and will rarely result from ‘a superior product, business acumen, or historic accident,’ id., it is exactly what Capper-Volstead permits .... It is not a violation of the Sherman Act for the members of an agricultural cooperative to carry out the legitimate objectives of their association which follow naturally from their attempts to achieve unity of effort and the voluntary elimination of competition among themselves. [Cites omitted]” Id. The Case-Swayne court defined the second element of the Grinnell test, at least with regard to allegations of monopolization against agricultural cooperatives, to render unlawful “the wrongful use and exercise of [monopoly] power .... ” Case-Swayne Co. v. Sunkist Growers, Inc., supra, 369 F.2d at 458. Given its recognition that legitimate Capper-Volstead purposes are immune from Sherman Act prohibitions, the court certainly could not have meant that such activities constituted a “wrongful use or exercise of [monopoly] power ... . ” What the Case-Swayne decision does stand for, however, is that where there are a number of alleged predatory acts — such as boycotts, coercion, etc. — each of which alone may be insufficient to establish wrongful use of monopoly power, this conduct must be “viewed as a whole” to determine whether a cause of action under § 2 lies. Case-Swayne Co. v. Sunkist Growers, Inc., supra, 369 F.2d at 459. The opinion does not suggest that legitimate Capper-Volstead activities may form the basis for a § 2 allegation. In short, Case-Swayne merely reaffirms the principle that plaintiffs charging an agricultural cooperative with monopolization must" }, { "docid": "17764991", "title": "", "text": "privileges by changing the law applicable to the ordinary business corporations so the farmers can take advantage of it.’ This indicates a purpose to make it possible for farmer-producers to organize together, set association policy, fix prices at which their cooperative will sell their produce, and otherwise carry on like a business corporation without thereby violating the antitrust laws.” Despite the preferred treatment given to agricultural producers, it is clear that neither Section 6 nor Capper-Volstead was intended to create an absolute shield from antitrust liability for agricultural cooperatives. Farmers and their organizations have been held to lose protection from antitrust attack when the cooperative or its members combine with nonproducer “outsiders” to unreasonably restrain trade. United States v. Borden Co., 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181 (1939). Nor are farmers immune when the cooperative or its members engage in predatory, competitive-stifling practices directed at restraining trade or monopolizing the market by unlawful means. Maryland and Virginia Milk Producers Ass’n v. United States, supra ; see generally, 20 A.L.R.Fed. 924 (1974) et seq. Neither situation is here present. There is no allegation that Central or its members have combined or attempted to combine with nonproducers, nor is there any allegation that defendants have engaged in predatory practices or have attempted to monopolize, or monopolized, the market by unlawful means. III. The principal dispute between the parties here concerns the scope of the protection afforded by Capper-Volstead, and the effect of Capper-Volstead on the Section 6 exemption. Northern contends that Section 6 and Capper-Volstead must be read together, and thus Central’s claim to immunity must rise or fall on whether or not it is engaged in “collective marketing” within the meaning of Capper-Volstead. Northern asserts that the antitrust exemption afforded by Section 6 and CapperVolstead is limited in scope and should be construed narrowly. Accordingly to Northern, the purpose of the exemptions was to give farmers greater bargaining power by allowing them to form associations to perform specific functions, i.e., collective marketing, processing, and handling. The thrust of the exemption, therefore, was to put farmers on an equal" }, { "docid": "16437479", "title": "", "text": "through DMS (Dairylea, Land O’Lakes, St. Albans, and Maryland & Virginia Milk Producers Cooperative Association, Inc.), Agri-Mark, and Upstate Niagara Cooperative, Inc. (Doc. 16 ¶¶ 126-27.) The Amended Complaint alleges that “GNEMMA’s member cooperatives ... fix and monitor the over-order premiums that they will distribute to their respective member farmers in the Northeast.” (Doc. 16 ¶ 127.) It further asserts that by establishing and participating in GNEMMA, DFA eliminated competition between cooperatives in the Northeast for members and sought to bring cooperatives that did not participate in DMS into a common decision-making and strategic organization. (Doc. 16 ¶ 129.) Plaintiffs allege that they and class members have been injured by these activities through their receipt of artificially depressed milk prices. (Doc. 16 ¶¶ 130-32.) In response, DFA and DMS argue that the Capper-Volstead Act immunizes the GNEMMA price-fixing alleged by Plaintiffs and that it is Plaintiffs’ burden to demonstrate otherwise. DFA and DMS cite no authority for this allocation of the burden of proof. As price-fixing is otherwise a per se violation under Section 1 of the Sherman Act, and as a cooperative is generally in the best position to establish whether its members are farmer-producers, the court finds more rational the approach taken by those courts that interpret Capper-Volstead immunity as an af- firmative defense to be established by a defendant seeking its protection. The court thus examines whether DFA and DMS have conclusively demonstrated that Capper-Volstead immunity requires dismissal of Plaintiffs’ GNEMMA price-fixing claims. “The Capper-Volstead Act removed from the proscription of the antitrust laws cooperatives formed by certain agricultural producers that otherwise would be directly competing with each other in efforts to bring their goods to market.” Nat’l Broiler Mktg. Ass’n v. United States, 436 U.S. 816, 822, 98 S.Ct. 2122, 56 L.Ed.2d 728 (1978). It thus grants dairy cooperatives antitrust immunity with respect to price-fixing agreements with other dairy cooperatives, “[provided, however, [t]hat such associations are operated for the mutual benefit of the members thereof ...” 7 U.S.C. § 291. The Act does not, however, extend immunity for conduct “outside the ‘legitimate objects’ of a cooperative,”" }, { "docid": "10742416", "title": "", "text": "associations. The AMA was enacted to promote the efficient production and distribution of agricultural commodities, in part, by permitting producers to organize “cooperative associations” to assist in bringing products to market. 12 U.S.C. § 1141(a)(3); see Fairdale Farms, Inc. v. Yankee Milk, Inc., 635 F.2d 1037, 1042 (2d Cir.1980) (observing that the declared policy of the AMA is “to promote the effective merchandising of agricultural commodities” through “a farm marketing system of producer-owned and producer-controlled cooperative associations.”). The AMA defines the term “cooperative association” as any association in which farmers act together in processing, preparing for market, handling, and/or marketing the farm products of persons so engaged, and also means any association in which farmers act together in purchasing, testing, grading, processing, distributing, and/or furnishing farm supplies and/or farm business services.... 12 U.S.C. § 1141j(a). The Capper-Volstead Act “removed from the proscription of the antitrust laws cooperatives formed by certain agricultural producers that otherwise would be directly competing with each other in efforts to bring their goods to market.” Nat’l Broiler Mktg. Ass’n v. United States, 436 U.S. 816, 822, 98 S.Ct. 2122, 56 L.Ed.2d 728 (1978) (footnote omitted). It was passed by Congress in 1922 “to make it clear that the formation of an agricultural organization with capital would not result in a violation of the antitrust laws, and that the organization, without antitrust consequences, could perform certain functions in preparing produce for market.” Id. at 824, 98 S.Ct. 2122; see also Newark Gardens, Inc., 847 F.2d at 1208 (noting that the Capper-Volstead Act “exempts agricultural cooperatives from the antitrust laws”). The Capper-Volstead Act includes within its scope agricultural producers who “act together in associations ... in collectively processing, preparing for market, handling, and marketing [farm products] in interstate and foreign commerce.” 7 U.S.C. § 291. “The real sense behind such an association and the prime purpose of the persons so banding together is to accomplish a common objective — collective marketing. It is a collection of producers cooperating to sell the goods they have produced.” United States v. Elm Spring Farm, Inc., 38 F.Supp. 508, 511 (D.Mass.1941); see" }, { "docid": "1496401", "title": "", "text": "The Court first finds that Nat’l DHIA qualifies as a “cooperative association of dairymen” under N.Y.Bus.Law 340(3). As with Capper-Volstead, Nat’l DHIA is an organization whose true members are cooperative associations composed exclusively of dairymen. The Court will not countenance plaintiffs’ argument that what could be called a “cooperative association of cooperative associations of dairymen” lies beyond the scope of Donnelly Act immunity for producer organizations. Second, if all inferences are drawn in a light most favorable to plaintiffs as the non-moving parties, the facts as alleged and as supported by affidavits may indeed support claims for antitrust violations against defendants. Accordingly, as with Capper-Volstead, a genuine issue of material fact exists over whether the Donnelly Act exemption applies to defendant Nat’l DHIA. Summary judgment for defendant Nat’l DHIA on plaintiffs’ Donnelly Act claim is DENIED. C. PLAINTIFFS’ CROSS-MOTIONS FOR SUMMARY JUDGMENT To the extent the Court has not addressed plaintiffs’ motions for summary judgment on their Sherman Act §§ 1 and 2 claims, the motions are DENIED for two reasons. First, as the Court has already decided, it has yet to be determined whether defendants are immune from antitrust liability under the federal law doctrine, the Capper-Volstead agricultural exemption, and/or the Donnelly Act. Second, as the Court has decided, genuine issues of material fact remain in regard to whether any of defendants actually violated either Section 1 or Section 2 of the Sherman Act. IV. CONCLUSION Defendants’ motion for summary judgment is DENIED and plaintiffs’ cross-motion for summary judgment is hereby GRANTED IN PART, in that defendants are precluded from relying on their “state action immunity” and Noerr-Pennington defenses, and DENIED IN PART. IT IS SO ORDERED." }, { "docid": "5754602", "title": "", "text": "was qualified to act collectively in accordance with the Capper-Volstead Act. As the Supreme Court made clear in National Broiler Marketing Ass'n v. United States, 436 U.S. 816, 823, 98 S.Ct. 2122, 2127, 56 L.Ed.2d 728 (1978) (discussed further infra), a defendant, in order to avoid antitrust liability under the Capper-Volstead Act, must establish more than just the fact that he is qualified to act collectively under the Act, but he must also establish that all those with whom he allegedly associated are likewise entitled to the Act's protection. Because the court is of the opinion that neither Country Skillet nor Farm Fresh falls within the limited exemption provided by the Capper-Volstead Act, the court, in determining whether the defendant has sustained his Capper-Volstead challenge to the indictment, need not decide if the other alleged co-conspirators hold exempt status under the Act. This opinion, therefore, will focus on the catfish-producing activities of Country Skillet and Farm Fresh as they relate to the defendant’s claim of immunity pursuant to the Capper-Volstead Act. . Country Skillet is a division of ConAgra, Inc., a Delaware corporation with its home office in Omaha, Nebraska. Farm Fresh is a subsidiary of Geo. A. Hormel & Co., a Minnesota corporation. Both ConAgra and Hormel are large conglomerates with multi-billion dollar annual sales in the production of a wide variety of food products. . Because it matters not whether the defendant's claim of exemption is analyzed under either the Capper-Volstead Act or the Fisherman's Act, see supra at note 4, the court’s analysis, so as to avoid repetition, will refer only to the Capper-Volstead Act. . As noted previously, Delta Pride is owned entirely by catfish farmers. Testimony at the hearing revealed that Delta Pride was formed by these farmers so that they would not be taken advantage of by large processors that controlled the price at which catfish would be purchased from the farmers. The farmers formed Delta Pride to process and sell their own fish, and thus enable them to receive a larger portion of the profit realized on the eventual sale of their catfish." }, { "docid": "12825928", "title": "", "text": "in Mississippi were illegal, but it did not issue an injunction because there was no probability that these practices would recur. In this appeal the Government contends that the district court erred in holding that the Capper-Volstead Act, 7 U.S.C. §§ 291, 292, and Section 6 of the Clayton Act, 15 U.S.C. § 17, exempt agricultural cooperatives from liability for attempts to monopolize unless their anticompetitive conduct is deemed “predatory.” We agree. The Capper-Volstead Act was intended to permit agricultural producers to join together to process, prepare, and market agricultural products without fear of prosecution under the antitrust laws. It permits an agricultural cooperative to be formed solely to fix the price at which its members products are sold. Northern Cal. Supermarkets, Inc. v. Central Cal. Lettuce Producers Coop., 413 F.Supp. 984 (N.D.Cal. 1976), aff’d, 580 F.2d 369 (9th Cir. 1978) cert. denied, 439 U.S. 1090, 99 S.Ct. 873, 59 L.Ed.2d 57 (1979). Two or more cooperatives can voluntarily join together solely for the purpose of setting uniform prices for their members. Id.; Fairdale Farms, Inc. v. Yankee Milk, Inc., 635 F.2d 1037 (2d Cir. 1980); Treasure Valley Potato Bargaining Ass’n v. Ore-Ida Foods, Inc., 497 F.2d 203 (9th Cir.) cert. denied, 419 U.S. 999, 95 S.Ct. 314, 42 L.Ed.2d 273 (1974). As a result; an agricultural cooperative can willfully attain a monopoly through the voluntary enrollment of its members, or through a voluntary combination with other cooperatives. The mere accretion of monopoly power through voluntary combination is immunized by the Capper-Volstead Act. Fair-dale Farms, Inc. v. Yankee Milk, Inc., 635 F.2d 1037 (2d Cir. 1980). The use of the term “predatory practices” in cases construing the Capper-Volstead Act is intended to distinguish monopolies acquired through anticompetitive practices from lawful accretions of market power willfully created through the voluntary enrollment of members of cooperatives. In Maryland and Virginia Milk Producers Ass’n v. United States, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880 (1960), the Supreme Court reversed the district court’s dismissal of an action under Section 2 of the Sherman Act and stated that the Capper-Volstead Act “did not" }, { "docid": "16437480", "title": "", "text": "of the Sherman Act, and as a cooperative is generally in the best position to establish whether its members are farmer-producers, the court finds more rational the approach taken by those courts that interpret Capper-Volstead immunity as an af- firmative defense to be established by a defendant seeking its protection. The court thus examines whether DFA and DMS have conclusively demonstrated that Capper-Volstead immunity requires dismissal of Plaintiffs’ GNEMMA price-fixing claims. “The Capper-Volstead Act removed from the proscription of the antitrust laws cooperatives formed by certain agricultural producers that otherwise would be directly competing with each other in efforts to bring their goods to market.” Nat’l Broiler Mktg. Ass’n v. United States, 436 U.S. 816, 822, 98 S.Ct. 2122, 56 L.Ed.2d 728 (1978). It thus grants dairy cooperatives antitrust immunity with respect to price-fixing agreements with other dairy cooperatives, “[provided, however, [t]hat such associations are operated for the mutual benefit of the members thereof ...” 7 U.S.C. § 291. The Act does not, however, extend immunity for conduct “outside the ‘legitimate objects’ of a cooperative,” including restraining or monopolizing trade, or suppressing competition. Maryland & Virginia Milk Producers Ass’n, Inc. v. United States, 362 U.S. 458, 468, 80 S.Ct. 847, 4 L.Ed.2d 880 (1960) (internal quotation marks omitted); see Fairdale Farms, Inc. v. Yankee Milk, Inc., 635 F.2d 1037, 1044 (2d Cir.1980) (“Of course, a cooperative may neither acquire nor exercise monopoly power in a predatory fashion by the use of such tactics as ... harassment ... coerced membership, and discriminatory pricing.”) (citations omitted). Moreover, not every agricultural cooperative is a Capper-Volstead entity. 7 U.S.C. § 291; Agritronics Corp. v. Nat’l Dairy Herd Ass’n, Inc., 914 F.Supp. 814, 823 (N.D.N.Y.1996) (Capper-Volstead immunity extends only to organizations or cooperatives whose members are producers of agricultural products and which are involved in processing, preparing for market, handling or marketing the agricultural products of its members); see also Nat’l Broiler Mktg. Ass’n, 436 U.S. at 827-29, 98 S.Ct. 2122 (Capper-Volstead requires that all members of the cooperative be farmers and even one middleman is sufficient to destroy the Capper-Volstead immunity shield). Here, Plaintiffs" } ]

[ { "docid": "22606807", "title": "", "text": "See id., at 86 (relying on Mooney v. Holohan, 294 U. S. 103, 112 (1935), and Pyle v. Kansas, 317 U. S. 213, 215-216 (1942)). Brady held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U. S., at 87; see Moore v. Illinois, 408 U. S. 786, 794-795 (1972). In United States v. Agurs, 427 U. S. 97 (1976), however, it became clear that a defendant’s failure to request favorable evidence did not leave the Government free of all obligation. There, the Court distinguished three situations in which a Brady claim might arise: first, where previously undisclosed evidence revealed that the prosecution introduced trial testimony that it knew or should have known was perjured, 427 U. S., at 103-104; second, where the Government failed to accede to a defense request for disclosure of some specific kind of exculpatory evidence, id., at 104-107; and third, where the Government failed to volunteer exculpatory evidence never requested, or requested only in a general way. The Court found a duty on the part of the Government even in this last situation, though only when suppression of the evidence would be “of sufficient significance to result in the denial of the defendant’s right to a fair trial.” Id., at 108. In the third prominent case on the way to current Brady law, United States v. Bagley, 473 U. S. 667 (1985), the Court disavowed any difference between exculpatory and impeachment evidence for Brady purposes, and it abandoned the distinction between the second and third Agurs circumstances, i. e., the “specific-request”'and “general- or no-request” situations. Bagley held that regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been differ ent.” 473 U. S., at 682 (opinion of Blackmun, J.); id., at 685 (White, J.," } ]

[ { "docid": "4864738", "title": "", "text": "and Acosta is consistent with Van Arsdall that Friedman does not have the unfettered right to cross-examination. 4. Giglio Friedman argues that the Government violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) because it concealed certain impeachment evidence related to Acosta and Callahan. Brady stands for the proposition that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. Under Giglio, “the government must disclose materials that go to the question of guilt or innocence as well as materials that might affect the jury’s judgment of the credibility of a crucial prosecution witness.” United States v. Milan, 304 F.3d 273, 287 (3d Cir.2002) (citing United States v. Bagley, 473 U.S. 667, 676-77, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). A defendant must prove three elements for a Brady violation: (1) “the evidence at issue must be favorable to the defendant;” (2) “it must be material;” and (3) “it must have been suppressed by the prosecution.” United States v. Reyeros, 537 F.3d 270, 281 (3d Cir.2008) (citing Pelullo, 399 F.3d at 209; United States v. Perdomo, 929 F.2d 967, 970 (3d Cir.1991)). Evidence is material “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Material evidence can include evidence that may be used to impeach a witness. Id. at 676-77, 105 S.Ct. 3375; Giglio, 405 U.S. at 154, 92 S.Ct. 763. However, “impeachment evidence, if cumulative of similar impeachment evidence used at trial ... is superfluous and therefore has little, if any, probative value.” Lambert v. Beard, 633 F.3d 126, 133 (3d Cir.2011) (citations omitted). On the other hand, it does not follow “that" }, { "docid": "10440670", "title": "", "text": "failed to evaluate the cumulative effect of the above violations. 1. Gilbert Melendez’s Testimony Spence argues that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose certain privileges and benefits Gilbert Melendez received in exchange for his testimony. The standards for a Brady violation are well settled. In Brady, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. at 1196-97. The Court further established in Giglio v. U.S., 405 U.S. 150, 154-55, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972), that: “when the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within the general rule of Brady.... Here, the Government’s case depended almost entirely on [one witness’s] testimony. [The person’s] credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.” Id. at 154-55, 92 S.Ct. at 766. To establish a Brady claim, a habeas petitioner must demonstrate that (1) the prosecution suppressed evidence, (2) the evidence was favorable to the petitioner, and (3) the evidence was material. U.S. v. Ellender, 947 F.2d 748, 756 (5th Cir.1991) (citations omitted). In assessing the materiality of suppressed evidence, the Supreme Court explained that “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” U.S. v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id., at 682, 105 S.Ct. at 3383. Recently, the Court further observed that a “reasonable probability” of a different result is shown when the non-disclosure" }, { "docid": "6971200", "title": "", "text": "new information about Horn was not disclosed until then. Thus, staying the district court habeas proceedings and holding them in abeyance while Wogenstahl pursued these claims in state court was proper. The timing of the state court’s decision and the fact it was ren dered while the habeas petition was stayed have no effect on our standard of review under AEDPA. B. “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). “To assert a successful Brady claim, a habeas petitioner must show that: (1) evidence favorable to the petitioner, (2) was suppressed by the government, and (3) the petitioner suffered prejudice.” Johnson v. Bell, 525 F.3d 466, 475 (6th Cir.2008) (citing Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004)). “Brady requires that the prosecution disclose evidence that may impeach the credibility of a witness.” Wilson v. Parker, 515 F.3d 682, 701 (6th Cir.2008) (citing Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). “Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the case would have been different.” Id. (citing Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). “A reasonable probability is a ‘probability sufficient to undermine confidence in the outcome.’ ” Id. at 701-02 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). “[T]he Brady standard is not met if the petitioner shows merely a reasonable possibility that the suppressed evidence might have produced a different outcome.... ” Montgomery, 654 F.3d at 678. Where the prosecution is shown to have suppressed Brady or Giglio matter relevant to its presentation of evidence known to be false, the “materiality” standard is less stringent. “To prove that the prosecutor’s failure to correct" }, { "docid": "2284222", "title": "", "text": "mixed questions of law and fact de novo.” Harding v. Walls, 300 F.3d 824, 827 (7th Cir.2002). The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), however, significantly constrains federal court review of state court decisions. Under that statute, habeas relief should only be granted if a state court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1) (2003). Once the clearly established governing legal principles are identified, we must then determine whether the Illinois Appellate Court’s decision in Pruitt’s case was either “contrary to, or involved an unreasonable application of’ those legal principles. A. Nondisclosure of the Appearance Bond We begin with Pruitt’s claim that he was denied a fair trial, as guaranteed by the Due Process Clause of the Fourteenth Amendment, because of the State’s failure to disclose the existence of the appearance bond guaranteeing Sims’s presence at his trial. The Supreme Court has made clear that the due process guarantee includes protection against the nondisclosure to the defense of favorable and material evidence in the possession of the prosecution. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.”). The Court has further explained that “[ijmpeachment evidence ... as well as exculpatory evidence, falls within the Brady rule.” Bagley, 473 U.S. at 676, 105 S.Ct. 3375 (citing Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). The Brady duty to disclose favorable evidence does not mean that the prosecution is required to turn over its entire case file to the defense. Bagley, 473 U.S. at 675, 105 S.Ct. 3375. Rather, the key to triggering the duty to disclose is the materiality of the evidence to the question of guilt: “We do not, however, automatically require a" }, { "docid": "7836406", "title": "", "text": "the marijuana charge arose. Hence, the incremental benefit to Olarte from the marijuana dismissal was insignificant for impeachment purposes in light of the multiple federal narcotics trafficking charges he faced. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97 (1963), the Supreme Court held “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution.” See Bowen v. Maynard, 799 F.2d 593, 602 (10th Cir.1986), cert. denied, 479 U.S. 962, 107 S.Ct. 458, 93 L.Ed.2d 404 (1986). This widely cited passage establishes the prosecutor’s broad duty to disclose exculpatory evidence to the defense. The prosecutor’s duty is based on the requirements of due process. The defendant’s right to due process is violated when material evidence is suppressed thus undermining confidence in the outcome of the trial. For evidence to fall under the rule in Brady, it must be both exculpatory and material, Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. The impeachment evidence here at issue is exculpatory. This court has stated, “Impeachment evidence merits the same constitutional treatment as exculpatory evidence.” Bowen, 799 F.2d at 610; see Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). The gravamen of the dispute is materiality. If the evidence sought to impeach Olarte did not materially affect the ultimate outcome, there is no reversible error. As the Court held in United States v. Bagley, 473 U.S. 667, 676 n. 7, 105 S.Ct. 3375, 3380 n. 7, 87 L.Ed.2d 481 (1985), “Furthermore, a rule that the prosecutor commits error by any failure to disclose evidence favorable to the accused, no matter how insignificant, would impose an impossible burden on the prosecutor and would undermine the interest in the finality of judgments.” Hence, materiality is the key to understanding the application of Brady. The Brady issue in this case is a mixed question of law and fact. “The materiality of withheld evidence under Brady and its" }, { "docid": "4313414", "title": "", "text": "this case. At the appellants’ request, the District Court examined the unredacted 302s in camera, and also reviewed 302s that had not been produced to the defense. The court ordered the release of some of the withheld summaries and some of the redacted information. The court declined appellants’ request to order production of all the government’s files in this case for an in camera review. Shortly after the trial got underway, the F.B.I. case agent for the first time revealed to the prosecutor and to counsel for the defense that one of the government’s witnesses, Kevin Dobson, was a paid informant for the F.B.I. The information was in the hands of the defense one week before Dobson was called to testify as a witness for the prosecution and the defense cross-examined him on his role as a government informant. Also, the District Court received in evidence a photograph, about which the government asserted it was unaware-and thus the defense was unaware-until the trial had commenced. These incidents form the basis for appellants’ claims that the prosecution withheld material in the government’s files to which the defense was entitled. A review of the applicable law convinces us that the District Court did not err in refusing to review all of the government’s files in camera. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court declared the rule “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. at 1196. Over the years the Court has elaborated upon the rule. The obligation of disclosure now encompasses not only exculpatory evidence, but also evidence that might be valuable in impeaching government witnesses. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985) (citing Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972)). Further, the duty to produce such" }, { "docid": "2154824", "title": "", "text": "have affected the outcome of the trial and that, therefore, Peltier was not entitled to relief. Peltier appeals to this Court, asking us to make an independent judgment as to whether the previously undisclosed evidence would have produced a different result at trial. The Legal Standard. In United States v. Bagley, — U.S. -, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), Mr. Justice Blackmun, writing for the Court, reviewed the Supreme Court cases dealing with a prosecutor’s failure to disclose evidence that could have been used effectively to impeach important government witnesses. He stated: In Brady v. Maryland, 373 U.S. 83, 87 [83 S.Ct. 1194, 1196, 10 L.Ed.2d 215] (1963), this Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment.” ****** The holding in Brady v. Maryland requires disclosure only of evidence that is both favorable to the accused and “material either to guilt or punishment.” Id., 105 S.Ct. at 3377, 3379, 87 L.Ed.2d at 486, 489 (citations omitted). He went on to state: Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule. See Giglio v. United States, 405 U.S. 150, 154 [92 S.Ct. 763, 766, 31 L.Ed.2d 104] (1972). Such evidence is “evidence favorable to an accused,” Brady, * * * so that, if disclosed and used effectively, it may make the difference between conviction and acquittal. Cf. Napue v. Illinois, 360 U.S. 264, 269 [79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217] (1959) (“The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend”). ****** [Constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial. Id., 105 S.Ct. at 3380-81, 87 L.Ed.2d at 490-91. He then turned to the question of materiality," }, { "docid": "23592403", "title": "", "text": "bond reduction hearing and by failing to apprise defense of alleged plea negotiations between Biscuiti and the Georgia and Pennsylvania authorities. Appellants also argue that the prosecutor violated Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), by failing to correct Biscuiti’s allegedly false testimony that he had turned himself in upon learning of the warrant for his arrest. We discuss these issues in order. 1. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. at 1196-97. The Supreme Court has determined that “[i]mpeachment evidence, [ ] as well as exculpatory evidence, falls within the Brady rule.” See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). To establish a Brady violation a defendant must prove the following: (1) that the Government possessed evidence favorable to the defendant (including impeachment evidence), see id.; (2) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence, see United States v. Valera, 845 F.2d 923, 927-28 (11th Cir.1988); (3) that the prosecution suppressed the favorable evidence, see United States v. Burroughs, 830 F.2d 1574, 1577 (11th Cir.1987), cert. denied sub nom. Rogers v. United States, — U.S. -, 108 S.Ct. 1243, 99 L.Ed.2d 442 (1988); and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different, see Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. With respect to the allegation that the Government suppressed impeaching evidence upon which it based its arguments at Biscuiti's bond reduction hearing, we conclude that appellants have failed to make the requisite showing to establish a violation of Brady. Our review of the transcript of the hearing convinces us that" }, { "docid": "4964089", "title": "", "text": "MEMORANDUM OPINION MICHAEL, District Judge. Nine defendants are charged with conspiracy to possess with intent to distribute and conspiracy to distribute cocaine and marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(B)(ii) and 841(b)(1)(D). This court heard motions in this case on July 30, 1992 during which defendants Ernest Shifflett and Margaret Shifflett, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requested production of the criminal records of prosecution witnesses, and Defendants Ernest Shifflett, Margaret Shifflett, Michael Shifflett, Joyce Morris, William Ral-ston and Donald Shifflett requested any exculpatory information contained in grand jury statements made by certain government agents. The government objected to producing any criminal records that it did not have in its possession, and it objected to producing the Grand Jury statements pursuant to the Jencks Act, 18 U.S.C. § 3500 (1985), as adopted in Fed.R.Crim.P. 26.2. This court holds that criminal records of government witnesses must be disclosed after each witness has testified on direct examination at trial, and any exculpatory portions of grand jury testimony of government witnesses that could potentially require investigation by the defense must be disclosed promptly upon demand. I. This case presents the court with the familiar challenge of interpreting the scope of Brady, which states: “[T]he suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. Evidence is material if there is a “reasonable probability” that the result of the proceeding would be different if the evidence is disclosed. United States v. Russell, 971 F.2d 1098, 1113 (4th Cir.1992) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)). Criminal records of witnesses are exculpatory material requiring disclosure pursuant to Brady. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The question in this case, however, concerns when the criminal records must be disclosed. The" }, { "docid": "10692319", "title": "", "text": "the state court adjudication of his Brady claim resulted in a decision that is contrary to, or involves an unreasonable application of, federal law. 28 U.S.C. § 2254(d)(1). He argues that the recorded pretrial interviews with Brown and Dane Dickson contained “material” impeachment evidence under Brady on the issue of intent to kill. Respondent argues that the district court should be affirmed because the state determination that the evidence was not material is not objectively unreasonable. “[T]he suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (quoting Brady, 373 U.S. at 87, 83 S.Ct. 1194). “When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule.” Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)). To prevail on a Brady claim, “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler, 527 U.S. at 281-82, 119 S.Ct. 1936. Evidence is material where there exists a “reasonable probability” that had it been disclosed the result at trial would have been different. Banks, 540 U.S. at 699, 124 S.Ct. 1256. “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Under AEDPA, we do not decide de novo whether a state prisoner has sufficiently proven a Brady violation. See Yarborough v. Alvarado, 541 U.S. 652, 665, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) (“We cannot grant relief under AEDPA by conducting our own independent inquiry into whether the state" }, { "docid": "13738134", "title": "", "text": "by permitting United States officials to interview Uribe and by acting upon the United States’ request to extradite him. On December 14, 2004, during the trial, the District Court held a hearing to consider the defendants’ discovery demands. At the hearing, the government took the position that it had no obligation to obtain and turn over the documents sought by the defense. Nevertheless, the prosecutor represented that the United States was attempting to obtain documents from Ur-ibe’s attorney in Colombia and that it would turn over whatever it obtained. As earlier noted, the District Court denied the discovery demands. It ruled that the prosecution was not in actual or constructive possession of the documents sought by the defense and was therefore not required under Brady or the Jencks Act to obtain and produce them. The defendants wrongly say that was error. Brady stands for the proposition that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. A Brady violation has three components: the evidence at issue must be favorable to the defendant; it must be material; and it must have been suppressed by the prosecution. United States v. Pelullo, 399 F.3d 197, 209 (3d Cir.2005); United States v. Perdomo, 929 F.2d 967, 970 (3d Cir.1991). Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Material evidence can include evidence that may be used to impeach a witness. Id. at 676, 105 S.Ct. 3375; Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Brady prohibits the prosecution from “supress[ing]” material, favorable evidence, 373 U.S. at 187, 83 S.Ct. 1151, but that does not mean that the prosecution’s duty to disclose is limited to evidence within" }, { "docid": "4048935", "title": "", "text": "witness credibility. See Cotto, 331 F.3d at *233-34; -see also Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1040-41, 154 L.Ed.2d 931 (2003). However, “[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review .... A federal court can disagree with a state court’s credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.” MillerEl, 123 S.Ct. at 1041. In sum, “[deference does not by definition preclude relief.” Id. III. Brady v. Maryland “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Under Brady and its progeny, the government has a due process obligation to disclose to the defendant its knowledge of material evidence favorable to the defendant either because it is exculpatory or because it can serve to impeach a key witness. See Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Impeachment evidence includes promises that the prosecution makes to key witnesses in exchange for their testimony. Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). “In order for evidence to be ‘material’ within the meaning of Brady, a defendant does not need to show that the evidence, if disclosed, would have resulted in his acquittal; rather, he needs to show only that the evidence could ‘reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ” United States v. Schwarz, 259 F.3d 59, 64 (2d Cir.2001) (per curiam) (quoting Kyles, 514 U.S. at 434-35, 115 S.Ct. 1555). The Supreme Court has identified three distinct situations in which a Brady claim might arise: “first, where previously undisclosed evidence revealed that the prosecution introduced trial testimony that it knew or should have known" }, { "docid": "6894429", "title": "", "text": "a fair trial by the totality of the government’s misconduct.” Williams, 81 F.3d at 1438. A defendant relying on newly discovered evidence as the basis for his motion for a new trial must show that the evidence (1) came to his knowledge only after trial; (2) could not have been discovered sooner had due diligence been exercised; (3) is material and not merely impeaching or cumulative; and (4) would probably lead to an acquittal in the event of a new trial. United States v. Severson, 49 F.3d 268, 271 (7th Cir.1995); United States v. Kamel, 965 F.2d 484, 490 (7th Cir.1992). The defendants in this case claim that the government’s failure to disclose before trial all the impeaching evidence within its possession concerning confidential informant Varela constituted a violation of the requirements of Brady and Giglio. 1. One of the central tenets of our criminal law jurisprudence is the prosecution’s affirmative duty to disclose evidence favorable to a defendant and material either to the issue of guilt or to the issue of punishment. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court set forth the basic principle that the prosecution violates due process by suppressing favorable evidence that is material either to the guilt or to the punishment of the accused, “irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. at 1196-97. In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Court extended the Brady rule by holding that the prosecution violates due process by suppressing information concerning the reliability of a key witness when such impeachment evidence would be material to guilt or innocence. Id. at 154, 92 S.Ct. at 766. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), fo cused on the materiality of the undisclosed evidence: Favorable evidence is material if “its suppression undermines confidence in the outcome of the trial.” Id. at 678, 105 5.Ct. at 3381. And Kyles v. Whitley, — U.S. -, 115 S.Ct. 1555, 131" }, { "docid": "4313415", "title": "", "text": "prosecution withheld material in the government’s files to which the defense was entitled. A review of the applicable law convinces us that the District Court did not err in refusing to review all of the government’s files in camera. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court declared the rule “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. at 1196. Over the years the Court has elaborated upon the rule. The obligation of disclosure now encompasses not only exculpatory evidence, but also evidence that might be valuable in impeaching government witnesses. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985) (citing Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972)). Further, the duty to produce such material arises even if the defense request is non-specific or if there is no request at all. United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). According to appellants, because the incidents cited above were clearly violative of their due process rights as set forth in Brady, it therefore follows that the government withheld other information that would have resulted in an acquittal at trial. The District Court, relying on the representations of the prosecution that it had produced all Brady materials in its files, refused to conduct an in camera review of all the government files. Monde-jar further argues that the incidents detailed above, in and of themselves, warrant reversal of his conviction and remand for a new trial. In the alternative, he, together with the other appellants, requests this Court to remand the case to the District Court for an in camera review of all the government’s files. “In the typical case where a defendant makes only a general request for exculpatory material under Brady v." }, { "docid": "9902848", "title": "", "text": "that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” and accordingly, the petition for a writ of habe-as corpus pursuant to 28 U.S.C. § 2254(d) must be denied. B. Brady Claim The remaining claims before us also do not support a grant of habeas corpus relief. In his state post-conviction petition, Payne raised a claim that the prosecution withheld exculpatory information from Payne in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), specifically, information that the victim Charisse Christopher had a boyfriend who, at one point, admitted to having intercourse with Charisse the night before the murders. The Tennessee Court of Criminal Appeals, the last state court to issue a reasoned opinion on the issue, affirmed the denial of Payne’s petition for post-conviction relief. Payne v. State, 1998 WL 12670 (Tenn.Crim.App. Jan.15, 1998). Given the state court’s factual determination on what evidence was in the possession of the prosecution at the time of trial, a determination that we must defer to, the Court of Criminal Appeals’ affirmance was not an unreasonable application of clearly established federal law. Under Brady v. Maryland, “the suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. In order to establish a Brady violation, a defendant must show (1) that the evidence at issue was exculpatory, that is, favorable to the accused, United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); (2) that the evidence was material, so that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,” id. at 682, 105 S.Ct. 3375; and (3) that the evidence that was suppressed was known to the prosecution but unknown to the defense at the time of trial, United States v." }, { "docid": "22838487", "title": "", "text": "office.” (J.A. at 429) Apparently, after following up with IntegriGuard, Sparks learned that the edited version had been given to them by the Assistant U.S. Attorney working with CMS. On that basis, Defendants again moved for a new trial, and in the alternative for an evidentiary hearing, alleging Brady violations. The district court again denied the motion, and Defendants appeal that denial. Prosecutorial suppression of evidence favorable to the accused implicates the Due Process Clause of the Fifth and Fourteenth Amendments. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that, where the accused makes a pre-trial request for evidence favorable to his case, the government violates his due process rights in suppressing such evidence “where [it] is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” It matters little whether the government suppresses the evidence out of oversight or guile. Id. at 88, 83 S.Ct. 1194; see also Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (“Nor do we believe the constitutional obligation is measured by the moral culpability, or the willfulness, of the prosecutor.”). Exculpatory evidence and impeaching evidence alike can be “favorable to [the] accused” within the meaning of Brady and the defendant need not show the evidence would likely lead to acquittal. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Giglio, 405 U.S. at 154, 92 S.Ct. 763; Agurs, 427 U.S. at 111, 96 S.Ct. 2392; Frost, 125 F.3d at 382. Rather, the evidence must be material. “The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt.” Agurs, 427 U.S. at 112, 96 S.Ct. 2392. Accordingly, the “touchstone of materiality” is “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding wuuld have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. 3375" }, { "docid": "23108894", "title": "", "text": "him due process under the standards of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). A. Again, a defendant who has pleaded guilty may thereafter only challenge the voluntariness of his plea. United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989). Nevertheless, pleading guilty does not preclude a defendant from claiming that his plea was the product of prosecutorial “threats, misrepresentations, or improper promises.” Bradbury v. Wainwright, 658 F.2d 1083, 1086 (5th Cir.1981), cert. denied, 456 U.S. 992, 102 S.Ct. 2275, 73 L.Ed.2d 1288 (1982); see also Crow v. United States, 397 F.2d 284, 285 (10th Cir.1968). Such claims directly challenge the voluntary and intelligent nature of the plea. Bradbury, 658 F.2d at 1086. In Brady, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment.” 373 U.S. at 87, 83 S.Ct. at 1196. In Giglio, the Court extended its holding in Brady to include evidence affecting the credibility of the government’s witnesses. 405 U.S. at 154, 92 S.Ct. at 766. “When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule.” Id. (quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Edüd 1217 (1959)). And in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Court reaffirmed its holdings in Brady and Giglio, stating that the Brady rule extends to “[i]mpeachment evidence ... as well as exculpatory evidence [because] ... if disclosed and used effectively, [impeachment evidence] may make the difference between conviction and acquittal.” Bagley, 473 U.S. at 676, 105 S.Ct. at 3380. This court has yet to address whether a defendant who has pleaded guilty can raise a Brady or Giglio claim in his section 2255 petition. The central question is whether the withholding of" }, { "docid": "2284223", "title": "", "text": "guarantee includes protection against the nondisclosure to the defense of favorable and material evidence in the possession of the prosecution. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.”). The Court has further explained that “[ijmpeachment evidence ... as well as exculpatory evidence, falls within the Brady rule.” Bagley, 473 U.S. at 676, 105 S.Ct. 3375 (citing Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). The Brady duty to disclose favorable evidence does not mean that the prosecution is required to turn over its entire case file to the defense. Bagley, 473 U.S. at 675, 105 S.Ct. 3375. Rather, the key to triggering the duty to disclose is the materiality of the evidence to the question of guilt: “We do not, however, automatically require a new trial whenever a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict. A finding of materiality of the evidence is required under Brady. A new trial is required if the false testimony could ... in any reasonable likelihood have affected the judgment of the jury.” Giglio, 405 U.S. at 154, 92 S.Ct. 763 (quotations and citations omitted). In Bagley, the Supreme Court further sought to clarify this concept of materiality, noting that “a constitutional error occurs ... only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.” 473 U.S. at 678, 105 S.Ct. 3375. The Court went on to explain that “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. at 682, 105 S.Ct. 3375 (Blackmun, J.); id. at 685, 105 S.Ct. 3375 (White, J., concurring in that sentence)." }, { "docid": "22911994", "title": "", "text": "show that the-government knew or should have known of the perjury. At the time of the trial, all Hazel Show recalled was a “flash of brown.” In light of the substantial evidence supporting Yunkin’s testimony and questioning Bayan’s credibility, it was reasonable for the PCRA Court to conclude that the government did not and should not have known Yunkin was perjuring himself (assuming, of course, that Hazel Show’s testimony in 1997 and 1998 in fact demonstrated he was lying). The existence of evidence tending to contradict testimony the government elicits at trial does not conclusively show that either the witness perjured himself or (if he did) that the government knew or should have known of the perjury. The PCRA Court’s factual findings are dispositive. b. Suppression of Brady Material In Brady v. Maryland, the Supreme Court held “that the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. The Court subsequently held that “a defendant’s failure to request favorable evidence did not leave the Government free of all obligation,” and a Brady violation might arise “where the Government failed to volunteer exculpatory evidence never requested, or requested only in a general way.” Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). In addition, impeachment evidence, as well as exculpatory evidence, falls within the Brady rule, see Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), because “[s]uch evidence is ‘evidence favorable to an accused.’ ” United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (quoting Brady, 373 U.S. at 87, 83 S.Ct. 1194). Thus to establish a Brady violation requiring relief, a defendant must show that (1) the government withheld evidence, either willfully or inadvertently; (2) the evidence was favorable, either because it was exculpatory or of impeachment value; and (3) the withheld evidence was material. See Banks v." }, { "docid": "12564468", "title": "", "text": "the instant motion is, in all material respects, identical to his motion for appointment of habeas counsel. In addition, Rivera requests discovery, supplementation of the record, and an evidentiary hearing pursuant to Rules 6, 7 and 8 of the Rules Governing Section 2255 Proceedings. Finally, he requests that his sentence be vacated and the judgment against him be set aside or, in the alternative, that he be granted a new trial or his sentence corrected pursuant to 28 U.S.C. § 2255. II. It is axiomatic under Brady that the government is obligated to provide a defendant with any exculpatory evidence in its possession, including evidence that can be used to impeach government witnesses. Brady, 373 U.S. at 87, 83 S.Ct. 1194; Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In Brady, the Supreme Court emphasized that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. Yet, “the purpose of the Brady rule is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur.” United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Thus, a prosecutor is not required to provide defense counsel with his entire file, but only to disclose evidence that if suppressed would deprive the defendant of a fair trial. Id. Furthermore, while due process requires the government to provide the defendant with exculpatory evidence, it “does not require the prosecution to disclose information in a specific form or manner.” United States v. Wooten, 377 F.3d 1134, 1143 (10th Cir.2004) (holding that government did not violate Brady where potentially exculpatory evidence was provided in a memorandum rather than at a pretrial conference); see Spears v. Mullin, 343 F.3d 1215, 1257 (10th Cir.2003) (holding that the state did not violate Brady by failing to" } ]

[ { "docid": "6945801", "title": "", "text": "to a case are those which foster and enhance, rather than retard or interrupt the progress of reorganization.” In re Richton International Corp., 15 B.R. 854, 855 (Bankr.S.D.N.Y.1981). While the policy aim behind these provisions is to promote meaningful creditor participation in the reorganization process, In re General Oil Distributers Inc., 51 B.R. 794, 805 (Bankr.E.D.N.Y.1985); Calumet Realty, 34 B.R. at 926, tension exists between this aim and the contrasting policy that administrative expenses of the estate be kept to a minimum. In the Matter of Baldwin-United Corp., 79 B.R. 321, 338 (Bankr.S.D.Ohio 1987). That tension gives rise to the well settled rule that these statutory provisions are to be narrowly construed, Manufacturers Hanover Trust Co. v. Bartsh (In re Flight Transportation Corp. Securities Litigation), 874 F.2d 576, 581 (8th Cir.1989); In re Hanson Industries, Inc., 90 B.R. 405, 409 (Bankr.D.Minn.1988); In re O.P.M. Leasing Services, Inc., 23 B.R. 104, 121 (Bankr.S.D.N.Y.1982), and that any recovery is subject to strict scrutiny by the court, In re D. W. G.K. Restaurants, Inc., 84 B.R. 684, 689 (Bankr.S.D.Cal.1988); McLean, 88 B.R. at 39. The burden of proof as to the substantial benefit rendered to the estate is on the applicant, and the entitlement to an award must be established by a preponderance of the evidence. Hanson Industries, 90 B.R. at 409; In re 1 Potato 2, Inc., 71 B.R. 615, 618, Bankr.L.Rep. (CCH) ¶ 71764 (Bankr.D.Minn.1987). As a result, benefits which have been found to be insubstantial under § 503(b)(3) and (4) include those services which would merely deplete the assets of an estate without providing a corresponding greater benefit. Accordingly, services found to be duplicative of duties of the debtor or other court-appointed officers, absent proof that the appointed officer is either unable or unwilling to act, are not to be compensated since they would entail an excessive and undue burden upon the estate. In re Texaco, Inc., 90 B.R. 622, 632 (Bankr.S.D.N.Y.1988); In re Ace Finance Co., 69 B.R. 827, 831 (Bankr.N.D.Ohio 1987); Baldwin-United, 79 B.R. at 344. Services that do not actually increase the size of the estate may" } ]

[ { "docid": "11406634", "title": "", "text": "in pertinent part: (a) Each United States trustee, within the region for which such United States trustee is appointed, shall— (3) supervise the administration of cases and trustees in cases under chapter 7, 11, or 13 of title 11 by, whenever the United States trustee considers it to be appropriate— (A) monitoring applications for compensation and reimbursement filed under section 330 of title 11 and, whenever the United States trustee deems it to be appropriate, filing with the court comments with respect to any of such applications^] 28 U.S.C.A. § 586(a) (1993). . See, e.g., In re Cascade Oil Co., 126 B.R. 99, 106 (D.Kan.1991); In re NRG Resources, Inc., 64 B.R. 643, 650 (W.D.La.1986); In re Ralph Marcantoni & Sons, 62 B.R. 245, 247 (D.Md.1986); Cohen & Thiros, P.C. v. Keen Enters., Inc., 44 B.R. 570, 574-75 (N.D.Ind.1984); In re Colonial Distrib. Co., 314 F.Supp. 418, 420 (D.S.C.1970) (pre-amendments); In re Maruko, Inc., 160 B.R. 633, 637 (Bankr.S.D.Cal.1993); In re Corporacion de Servicios Medico-Hospitalarios de Fajardo, Inc., 155 B.R. 1, 1 (Bankr.D.P.R.1993); In re Peter J. Schmitt Co., 154 B.R. 632, 634 (Bankr.D.Del.1993); In re Evans, 153 B.R. 960, 967-68 (Bankr.E.D.Pa.1993); In re Costello, 150 B.R. 675, 677 (Bankr.E.D.Ky.1992); In re Bonneville Pac. Corp., 147 B.R. 803, 805 (Bankr.D.Utah 1992); In re East Peoria Hotel Corp., 145 B.R. 956, 959 (Bankr.C.D.Ill.1991); In re Scoggins, 142 B.R. 940, 943 (Bankr.D.Or.1992); In re Gillett Holdings, Inc., 137 B.R. 475, 480 (Bankr.D.Colo.1992); In re Wilde Horse Enters., Inc., 136 B.R. 830, 839 (Bankr.C.D.Cal.1991); In re Bank of New England Corp., 134 B.R. 450, 453 (Bankr.D.Mass.1991), aff'd, 142 B.R. 584 (D.Mass.1992); In re Bennett, 133 B.R. 374, 377 (Bankr.N.D.Tex.1991); In re Viscount Furniture Corp., 133 B.R. 360, 362 (Bankr.N.D.Miss.1991); In re Saturley, 131 B.R. 509, 516 (Bankr.D.Me. 1991); In re Gold Seal Prods. Co., 128 B.R. 822, 827 & n. 3 (Bankr.N.D.Ala.1991); In re Sounds Distrib. Corp., 122 B.R. 952, 957 (Bankr.W.D.Pa.1991); In re Amstar Ambulance Serv., Inc., 120 B.R. 391, 394 (Bankr.N.D.W.Va.1990); In re Zenith Lab., Inc., 119 B.R. 51, 54 (Bankr.D.N.J.1990); In re Great Sweats, Inc., 113 B.R. 240, 242 (Bankr.E.D.Va.1990);" }, { "docid": "15417184", "title": "", "text": "at 39 (finding that \"consideration of these [four] factors clearly would weigh against the granting of the requested stay” (emphasis added)). . See In re Albicocco, No. 06-CV-3409, 2006 WL 2620464, at *1 n. 2 (E.D.N.Y. Sept. 13, 2006) (collecting cases, but declining to decide the question of the appropriate standard of review because the stay “should be denied under even the more generous standard, which treats the criteria as factors to be balanced rather than elements that all have to be necessarily satisfied”). . I note, however, that for the reasons discussed below, the result here would be the same even under the more stringent test. . Rothenberg v. Ralph D. Kaiser Co., 200 B.R. 461, 463 (D.D.C.1996) (quotations omitted). Accord Stern v. Bambu Sales, Inc., 201 B.R. 44, 46 (E.D.N.Y.1996) (denying stay pending appeal where movant failed to show irreparable harm). . Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989) (quotation marks and citation omitted). . See, e.g., In re Sunflower Racing, Inc., 223 B.R. 222, 225 (D.Kan.1998); In re 203 N. LaSalle St. P’ship, 190 B.R. 595, 598 (N.D.Ill.1995); In re Best Prods. Co., 177 B.R. 791, 808 (S.D.N.Y.), aff'd on other grounds, 68 F.3d 26 (2d Cir.1995); In re Clark, No. 95 C 2773, 1995 WL 495951, at *6 (N.D.Ill. Aug. 17, 1995); In re Moreau, 135 B.R. 209, 215 (N.D.N.Y.1992); In re MAC Panel Co., No. 98-10952C-11G, 2000 WL 33673784, at *4 (Bankr.M.D.N.C.2000) (collecting cases); In re Kent, 145 B.R. 843, 844 (Bankr.E.D.Va.1991); In re Charter Co., 72 B.R. 70, 72 (Bankr.M.D.Fla.1987); In re Great Barrington Fair & Amusement, Inc., 53 B.R. 237, 240 (Bankr.D.Mass.1985); In re Baldwin United Corp., 45 B.R. 385, 386 (Bankr.S.D.Ohio 1984). . See, e.g., In re Norwich Historic Pres. Trust, LLC, No. 3:05CV12, 2005 WL 977067, at *3 (D.Conn.2005) (acknowledging “persuasive” arguments that although foreclosure sale would not injure appellant, appellant’s concern that his appeal would be mooted satisfied the irreparable harm requirement); In re Country Squire, 203 B.R. at 183 (staying a foreclosure sale where it was \"apparent that absent a stay pending appeal ..." }, { "docid": "11718081", "title": "", "text": "242 (Bankr.M.D.Pa.1990) and Lund v. Affleck, 587 F.2d 75 (1st Cir.1978)). “[Fjutile efforts aimed at achieving unattainable objectives are unreasonable.” In re Saturley, 131 B.R. 509, 521 (Bankr.D.Me.1991). Moreover, it is “ ‘inherently unreasonable to ask a debtor to reimburse attorneys’ fees incurred by a creditor that are not cost justified ... or necessary to preservation of the creditor’s interest.’ ” In re Reposa, 94 B.R. at 262 (quoting In re Miracle Enterprises, Inc., 57 B.R. 133, 136 (Bankr.D.R.I.1986)). A creditor’s counsel’s fee application should be unambiguous and virtually self-contained so that by reviewing it and the underlying itemized billing information, the court can reach an informed determination of the reasonable fee. In re Huhn, 145 B.R. at 875. See Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir.1984); King v. Greenblatt, 560 F.2d 1024, 1027 (1st Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978); In re New England Metal Co., Inc., 155 B.R. 38, 41 (Bankr.D.R.I.1993). See also R.I. Local Bankr. Rule 25 (requiring detailed itemization in fee applications). Fee requests will be reduced: “(1) whenever we are unable to ascertain the nature of the service provided; (2) wherever it is unclear whether the activity involved collection of the obligation in question; or (3) wherever the hours expended are not stated.” In re Reposa, 94 B.R. at 259. See also In re Huhn, 145 B.R. at 875. After reviewing the fee application independently, my job is to determine a reasonable hourly rate and the number of hours counsel reasonably expended within the scope of the creditor’s contractual fee entitlement, employing the lodestar model to determine a reasonable fee. See Boston & Maine Corp. v. Sheehan, Phinney, Bass & Green, P.A. (In re Boston & Maine Corp.), 778 F.2d 890, 895-96 (1st Cir.1985); In re Casco Bay Lines, 25 B.R. 747 (Bankr. 1st Cir.1982); In re Saturley, 131 B.R. at 521. I commence consideration of the fee request by evaluating Shafner & Gillerman’s fee application in the context of Fischer’s contractual entitlements, noting the' problems that it presents. b.Lumping. It is difficult to" }, { "docid": "23183064", "title": "", "text": "a split of opinion among our bankruptcy courts. As noted above, Chief Judge Votolato of the United States Bankruptcy Court for the District of Rhode Island has ruled that wholly unsecured mortgages are not entitled to the § 1322(b)(2) protection. In re Woodhouse, 172 B.R. at 3. The United States Bankruptcy Court for the District of New Hampshire has ruled otherwise. Fraize v. Beneficial Mortgage Corp. of N.H. (In re Fraize), 208 B.R. 311, 313 (Bankr.D.N.H.1997). . See, e.g., Bartee v. Tara Colony Homeowners Ass’n (In re Bartee), 212 F.3d 277 (5th Cir.2000); McDonald v. Master Fin., Inc. (In re McDonald), 205 F.3d 606 (3rd Cir.2000); Western Interstate Bancorp v. Edwards (In re Edwards), 245 B.R. 917 (Bankr.S.D.Ga.2000); In re Baez, 244 B.R. 480 (S.D.Fla.2000); In re McCarron, 242 B.R. 479 (Bankr.W.D.Mo.2000); Johnson v. Asset Management Group, LLC, 226 B.R. 364 (D.Md.1998); In re Phillips, 224 B.R. 871 (Bankr.W.D.Mich.1998); In re Cerminaro, 220 B.R. 518 (Bankr.N.D.N.Y.1998); Smith v. First Citizens Bank (In re Smith), 215 B.R. 716 (Bankr.W.D.Tenn.1998); In re Cervelli, 213 B.R. 900 (Bankr.D.N.J.1997); In re Lam, 211 B.R. 36 (9th Cir. BAP 1997); In re Bivvins, 216 B.R. 622 (Bankr.E.D.Tenn.1997); Scheuer v. Marine Midland Bank (In re Scheuer), 213 B.R. 415 (Bankr.N.D.N.Y.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); In re Libby, 200 B.R. 562 (Bankr.D.N.J.1996); Vaillancourt v. Marlow (In re Vaillancourt), 197 B.R. 464 (Bankr.M.D.Pa.1996); Associates Fin. Servs. Corp. v. Purdue (In re Purdue), 187 B.R. 188 (S.D.Ohio 1995); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995), appeal dismissed, 77 F.3d 472, 1996 WL 63023 (4th Cir.1996); Norwest Fin. Georgia, Inc. v. Thomas (In re Thomas), 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); Castellanos v. PNC Bank, Nat’l Ass’n (In re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); Sette v. Bello (In re Sette), 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Kidd, 161" }, { "docid": "12493431", "title": "", "text": "meaningless if Mr. Raja-la, the Chapter 7 trustee, sells the Debtor’s assets in the near future. In their motion for reconsideration, Appellants cite two authorities for this proposition. See In re St. Johnsbury Trucking Co., Inc., 185 B.R. 687, 690 (S.D.N.Y.1995); In re Advanced Mining Systems, Inc., 173 B.R. 467, 468 (S.D.N.Y.1994). Several courts, however, have held that the fact that an appeal may be rendered moot without a stay does not itself constitute irreparable harm. See In re Ba-Mak Gaming Intl., Inc., Civ.A. No. 95-1991, 1996 WL 411610, at *2 (E.D.La.1996); In re 203 North LaSalle St. Partnership, 190 B.R. 595, 597 (N.D.Ill.1995); In re Fairmont Communications Corp., No. 92 B 44861 (JLG), 1993 WL 428710, at *3 (Bankr.S.D.N.Y.1993); In re Moreau, 135 B.R. 209, 215 (N.D.N.Y.1992); In re Kent, 145 B.R. 843, 844 (Bankr.E.D.Va.1991); In re Public Serv. Co. of New Hampshire, 116 B.R. 347, 349-50 (Bankr.D.N.H.1990); In re Dakota Rail, Inc., 111 B.R. 818, 821 (Bankr.D.Minn.1990); In re Charter Co., 72 B.R. 70, 72 (Bankr.M.D.Fla.1987); In re Great Barrington Fair & Amusement, Inc., 53 B.R. 237, 240 (Bankr.D.Mass.1985); In re Baldwin United Corp., 45 B.R. 385, 386 (Bankr.S.D.Ohio 1984). Although the likelihood that an appeal may be moot in the absence of a stay is an important factor in evaluating the potential harm to the Appellants, we find that this factor is not disposi-tive in the instant action. Here, Debtor is insolvent and has been unable to develop a confirmable reorganization plan in two years. Accordingly, it is unclear exactly what debtor has to lose in a sale by the trustee. Debtor has not presented any information to the court to show that it would be in any better financial position under its proposed reorganization plan rather than a liquidation of its assets. Appellants simply have failed to show that they will suffer any significant harm in the absence of a stay. III. Potential Harm To Creditors. Appellants reassert their same arguments on this point as in their original motion. No grounds for reconsideration are presented. Accordingly, the court will not alter its previous ruling that the" }, { "docid": "18739640", "title": "", "text": "although the LPOC still disputes the various constituencies’ chosen means of reorganization, the LPOC stands firm in its belief that its efforts brought this case to a speedy conclusion. II. Section 503(b) of the Bankruptcy Code provides that a creditor who has made a substantial contribution to a bankruptcy case shall receive an administrative expense claim equal to its reasonable fees and necessary expenses, and, if applicable, its counsel’s reasonable fees and expenses. 11 U.S.C. § 503(b)(3)(D) and (b)(4); In re U.S. Lines, Inc., 103 B.R. 427, 429 (Bankr.S.D.N.Y.1989), aff'd, 1991 WL 67464 (S.D.N.Y.1991). Although the term “substantial contribution” is not defined in the Code, courts have found that an applicant satisfies the substantial contribution test when it has provided “actual and demonstrable benefit to the debtor’s estate, its creditors, and to the extent relevant, the debtor’s shareholders.” U.S. Lines, 103 B.R. at 429 (citing In re McLean Industries, Inc., 88 B.R. 36, 38 (Bankr.S.D.N.Y.1988)); In re Rockwood Computer Corp., 61 B.R. 961, 965 (Bankr.S.D.Ohio 1986). The substantial contribution test is intended to promote meaningful creditor participation in the reorganization process, but not to encourage mushrooming administrative expenses. See In re Baldwin-United Corp., 79 B.R. 321, 338 (Bankr.S.D.Ohio 1987). Each § 503(b) applicant must prove by a preponderance of the evidence that the services it rendered for which it seeks compensation provided a substantial benefit to the estate. U.S. Lines, 103 B.R. at 429, citing In re Hanson Industries, Inc., 90 B.R. 405, 409 (Bankr.D.Minn.1988); see In re Jack Winter Apparel, Inc., 119 B.R. 629, 633 (E.D.Wis.1990); see In re D.W.G.K. Restaurants, Inc., 84 B.R. 684, 689 (Bankr.S.D.Cal.1988). Compensable services are those which facilitate progress of the case, In re K-Fab, Inc., 118 B.R. 240, 242 (Bankr.M.D.Pa.1990), rather than those which retard or interrupt. In re Richton International Corp., 15 B.R. 854, 856 (Bankr.S.D.N.Y.1981). Factors which the courts have considered in determining whether an applicant has made a substantial contribution in a bankruptcy case include: whether the services were provided to benefit the estate itself or all of the parties in the bankruptcy case; whether the services conferred a direct," }, { "docid": "1082799", "title": "", "text": "F.2d 950, 953 (1st Cir.1976) (granting priority to administrative expenses encourages new creditors to conduct business with the debtor). The applicable two-pronged test, first laid out in Mammoth Mart, supra, requires that an administrative claim (1) arise out of a postpetition transaction between the creditor and the trustee or debtor in possession and (2) be allowable only to the extent that the consideration supporting the claimant’s right to payment was both supplied to and beneficial to the debtor’s estate in the operation of its business. In re Mammoth Mart, 536 F.2d at 954; Amalgamated Ins. Fund, supra, 789 F.2d at 101; In re CIS Corp., 142 B.R. 640, 643 (S.D.N.Y.1992); In re New York Trap Rock Corp., 137 B.R. 568, 572 (Bankr.S.D.N.Y.1992); In re Drexel Burnham Lambert Group Inc., 134 B.R. 482, 489 (Bankr.S.D.N.Y.1991) (citations omitted); In re Chateaugay Corp., supra, 115 B.R. at 772 (Bankr.S.D.N.Y.1990), aff'd, 130 B.R. 690 (S.D.N.Y.1991). In addition, strict construction of the terms “actual” and “necessary” keeps “administrative expenses at a minimum ... to preserve the estate for the benefit of all its creditors.” In re Drexel Burnham Lambert Group Inc., supra, 134 B.R. at 488 (quoting, Otte v. United States, 419 U.S. 43, 53, 95 S.Ct. 247, 254, 42 L.Ed.2d 212 (1974)). A claim is not entitled to priority simply because the right to payment arose after the commencement of the reorganization proceeding. Amalgamated Ins. Fund, supra, 789 F.2d at 101 (citation omitted). Rather, a claimant must show that the debtor induced the creditor’s performance to the benefit of the estate. A presumption exists that creditors act primarily in their own interests and not for the benefit of the estate. In re United States Lines, Inc., 103 B.R. 427, 430 (Bankr.S.D.N.Y.1989), aff'd, 1991 WL 67464, No. 90 Civ. 3823 (MGC) (S.D.N.Y. April 22, 1991). A claimant must satisfy the Mammoth Mart test by a preponderance of the evidence. In re Drexel Burnham Lambert Group Inc., supra, 134 B.R. at 489 (citation omitted); In re O.P.M. Leasing Serv., Inc., 60 B.R. 679, 680 (Bankr.S.D.N.Y.1986). Pension Trustee argues that the Minimum Funding Claim, like a severance" }, { "docid": "23584424", "title": "", "text": "In re D.W.G.K. Restaurants, Inc., 106 B.R. 194, 197-98 (Bankr.S.D.Cal.1989). The trustee cites a recent Texas case where such interest was granted. In re First Republic Corp., No. 388-34546-SAF-11 (Bankr.N.D.Texas 1991). But in that case the debtors took funds that were to be the interim fees and invested them at 8%. The court held that “based on the results obtained and the interest earned by the debtors on the deferred amounts, the court concludes ... that the fees should be enhanced to compensate counsel and the accountants for the delay in payments.” Id. There is indeed a common practice, when dealing with interim fees, of holding back the payment of a certain percentage until the ultimate final allowance of fees. See In re Public Service Co. of N.H., 102 B.R. 276, 278 (Bankr.D.N.H.1989); In re White Motor Credit Corp., 50 B.R. 885, 891 (Bankr.N.D.Ohio 1985); In re Four Star Terminals, Inc., 42 B.R. 419 (Bankr.D.Alaska 1984); In re New Eng land. Carpet Co., 28 B.R. 766 (Bankr.D.Vt.1983), aff'd sub. nom. Gravel, Shea & Wright, Ltd. v. New England Carpet Co., 28 B.R. 703 (D.Vt.1983), aff'd 744 F.2d 16 (2d Cir.1984); In re Coconut Grove Bayshore, Inc., 33 B.R. 194, 195 (Bankr.S.D.Fla.1983); contra In re Kaiser Steel Corp., 74 B.R. 885 (Bankr.D.Colo.1987). The average holdback appears to be twenty-five percent. In re Public Service Co. of N.H., supra. Fee claimants in this case appear to be taking the position that, since the trustee holds more than enough cash to pay all fee and expense requests in full, failure to do so results in a necessary right to interest on the unpaid balance. The Court finds the notion of interest on interim fees to be unacceptable. Professionals apply for interim compensation based on the work that they have performed. The court then makes a determination as to reasonable compensation for actual and necessary services and expenses. The hold back is because the Court is unable to make a sufficient determination on those criteria until a later stage of the proceedings. Congress enacted § 331 to permit interim fees so that professionals would" }, { "docid": "13675969", "title": "", "text": "25 B.R. 747 (1st Cir. BAP 1982); In re Thomas, Inc., 43 B.R. 510 (Bankr.D.Mass.1984); In re Malden Mills, Inc., 42 B.R. 476 (Bankr.D.Mass.1984). Under the lodestar analysis, the court first establishes a threshold point of reference or the “lodestar,” which is the number of hours reasonably spent by each attorney multiplied by his reasonable hourly rate. Boston & Maine Corp., 776 F.2d at 6. This lodestar can then be adjusted up or down based on consideration of some or all of the following twelve factors: (1) time and labor required; (2) the novelty and difficulty of the questions presented by the case; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; (7) time pressures imposed by the client or the circumstances, (8) the amount involved and results obtained as a result of the attorneys’ services; (9) the experience, reputation and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; (12) awards in similar cases. In re Public Serv. Co. of New Hampshire, 160 B.R. 404, 413 (Bankr.D.N.H.1993) (citing Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). “While calculation of the lodestar is a useful, and often mandatory, starting point when the customary agreed-upon fee is based on an hourly charge, it is not the sole benchmark for measuring the reasonableness of any and all attorney fees, regardless of the ‘mode and measure.’ ” Boston & Maine Corp. v. Sheehan, Phinney, Bass & Green, P.A., 778 F.2d 890, 894-95 (1st Cir.1985). The cornerstones in the lodestar analysis are the reasonableness of the hours spent and the hourly rate sought. See In re Spillane, 884 F.2d at 647 (citing In re Casco Bay Lines, Inc., 25 B.R. 747, 758 (1st Cir. BAP 1982)). In determining-how many hours were reasonable, the court must review the work to see “whether counsel" }, { "docid": "13675970", "title": "", "text": "ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; (12) awards in similar cases. In re Public Serv. Co. of New Hampshire, 160 B.R. 404, 413 (Bankr.D.N.H.1993) (citing Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). “While calculation of the lodestar is a useful, and often mandatory, starting point when the customary agreed-upon fee is based on an hourly charge, it is not the sole benchmark for measuring the reasonableness of any and all attorney fees, regardless of the ‘mode and measure.’ ” Boston & Maine Corp. v. Sheehan, Phinney, Bass & Green, P.A., 778 F.2d 890, 894-95 (1st Cir.1985). The cornerstones in the lodestar analysis are the reasonableness of the hours spent and the hourly rate sought. See In re Spillane, 884 F.2d at 647 (citing In re Casco Bay Lines, Inc., 25 B.R. 747, 758 (1st Cir. BAP 1982)). In determining-how many hours were reasonable, the court must review the work to see “whether counsel substantially exceeded the bounds of reasonable effort,” and disallow hours that were “duplicative, unproductive, excessive, or otherwise unnecessary.” Id. (citations omitted). The court is also expected to consider factors such as the type of work performed, who performed it, and the expertise required. Id. Sheridan argues that the Bankruptcy Court failed to employ the lodestar approach and that Special Counsel’s fees were not reasonable under the lodestar approach. He characterizes the Fee Order as “virtually devoid of any analysis of the [twelve lodestar] factors whatsoever.” Since the Bankruptcy Court did not provide a detailed analysis of each of the lodestar factors, Sheridan contends that its decision to award fees to Special Counsel constituted an abuse of discretion. As set forth above, this Panel must review the Fee Order for abuse of discretion. See Coutin, 124 F.3d 331. The test for determining whether a bankruptcy court’s findings and conclusions are sufficiently detailed to pass muster is whether they permit the reviewing court to ascertain whether the bankruptcy court’s order rests on a clearly erroneous perception of" }, { "docid": "308987", "title": "", "text": "extraordinary effort, In re Aminex Corp., 15 B.R. 356, 364 (Bankr. S.D.N.Y.1981); (3) The full payment of all creditors, In re D.W.G.K Restaurants, 106 B.R. 194, 197 (Bankr.S.D.Cal.1989); (4) The expedience with which the professional performed its duties, In re Summit Communities of Florida, Inc., 84 B.R. 863, 871 (Bankr. S.D.Fla.1988); (5) The difficulty in finding counsel in the local or other relevant market, Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987); (6) The delay in receiving fees from the time the services were performed, In re White Motor Credit Corp., 50 B.R. 885 (Bankr.N.D.Ohio 1985); (7) The initial risk or contingency of nonpayment of any legal fees, In re Southern Merchandise Distributors, Inc., 117 B.R. 725, 728 (Bankr.S.D.Fla.1990); (8) The existence of factors not initially considered in calculating the professional’s standard fee, In re White Motor Credit Corp., 50 B.R. 885, 889 (Bankr.N.D.Ohio 1985); (9) The nunc pro tunc adjustment of original retention orders to avoid inequity, In re Churchfield Management & Invest. Corp., 98 B.R. 838, 854 (Bankr.N.D.Ill.1989); (10) The ratio of the bonus request to the time spent, In re Penn-Dixie Industries, Inc., 18 B.R. 834, 837 (Bankr.S.D.N.Y.1982); and (11) Whether the entire legal fee, including the bonus, appears to be excessive as that term is used in the American Bar Association Model Code of Professional Responsibility, Disciplinary Rule 2-106(B), In re Southern Merchandise Distributors, Inc., 117 B.R. 725, 726 (Bankr.S.D.Fla.1990). In re Blue Coal Corp., 206 B.R. 721, 723-24 (Bankr.M.D.Pa.1997). However, there is a strong presumption that the lodestar amount represents reasonable compensation. Id-; Blum, 465 U.S. at 897, 104 S.Ct. 1541. See also UNR Indus., Inc., 986 F.2d at 211; Burgess v. Klenske (In re Manoa Fin. Co.), 853 F.2d 687, 691 (9th Cir.1988); Grant, 908 F.2d at 880-81; First Am. Health Care of Ga., Inc., 212 B.R. at 417-18. Although Special Counsel did not specifically request enhancement and there was no agreement for enhanced compensation based on the risk of non-payment, the Court finds that it is not warranted. In reviewing the adversary" }, { "docid": "18487800", "title": "", "text": "re Ballantyne, 166 B.R. 681, 686 (Bankr.E.D.Wis.1994); In re Cummins, 166 B.R. 338, 354 (Bankr.W.D.Ark.1994); In re Olinger, 165 B.R. 283, 285-286 (Bankr.D.Col.1994); In re McDowell, 162 B.R. 136, 139 (Bankr.N.D.Ohio 1993); In re Misiaszek, 162 B.R. 80, 82 (Bankr.D.N.H.1993); In re Hix, 161 B.R. 401, 405 (Bankr.N.D.Ohio 1993); In re Ducey, 160 B.R. 465, 468 (Bankr.D.N.H.1993); In re Dauterman, 156 B.R. 976, 980 (Bankr.N.D.Ohio 1993); In re Barrett, 156 B.R. 529, 536 (Bankr.N.D.Tex.1993); In re Reed, 155 B.R. 169, 172 (Bankr.S.D.Ohio 1993); In re Crane, 154 B.R. 60, 65 (Bankr.E.D.Mich.1993); In re Grabau, 151 B.R. 235, 240 (Bankr.N.D.Cal.1991), aff'd in part and rev’d in part on other grounds, 151 B.R. 227 (N.D.Cal.1993); In re Harper, 150 B.R. 416, 419 (Bankr.E.D.Tenn.1993); In re McCaffrey, 150 B.R. 301, 303 (Bankr.D.R.I.1993); In re Touchstone, 149 B.R. 721, 728 (Bankr.S.D.Fla.1993), modified, 153 B.R. 955 (Bankr.S.D.Fla.1993); In re Moffitt, 146 B.R. 364, 368 (Bankr.S.D.Tex.1992); In re Fryar, 143 B.R. 396, 402 (Bankr.W.D.La.1992); In re Shane, 140 B.R. 964, 967 (Bankr.N.D.Ohio 1991); In re Chavez, 140 B.R. 413, 424 (Bankr.W.D.Tex.1992); In re Carroll, 140 B.R. 313, 316 (Bankr.D.Mass.1992); In re Boudakian, 137 B.R. 89, 94 (Bankr.D.R.I.1992); In re Miller, 133 B.R. 405, 408 (Bankr.S.D.Ohio 1991); In re Brown, 131 B.R. 900, 904 (Bankr.D.Me.1991); In re Chris J. Roy, a Law Corp., 130 B.R. 214, 217 (Bankr.W.D.La.1991), aff'd, 143 B.R. 825 (W.D.La.1992); In re Wilson, 127 B.R. 440, 443 (Bankr.E.D.Mo.1991); In re Johann, 125 B.R. 679, 681 (Bankr.M.D.Fla.1991); In re Reeves, 124 B.R. 5, 6 (Bankr.D.N.H.1990); In re Stewart, 123 B.R. 817, 819 (Bankr.W.D.Tenn.1991); In re Hodges, 115 B.R. 152, 155 (Bankr.S.D.Ill.1990); In re Specialty Plastics, Inc., 113 B.R. 915, 923 (Bankr.W.D.Pa.1990), vacated on other grounds, Comm. of Unsecured Creditors of Specialty Plastic v. Doemling, 127 B.R. 945 (W.D.Pa.1991); In re Galbreath, 112 B.R. 892, 900 (Bankr.S.D.Ohio 1990); In re Oot, 112 B.R. 497, 501 (Bankr.N.D.N.Y.1989); In re Wines, 112 B.R. 44, 45 (Bankr.S.D.Fla.1990); In re Burgess, 106 B.R. 612, 621 (Bankr.D.Neb.1989); In re Manzo, 106 B.R. 69, 72 (Bankr.E.D.Pa.1989); In re Guy, 101 B.R. 961, 991 (Bankr.N.D.Ind.1988); In re Bobofchak, 101 B.R. 465, 467 (Bankr.E.D.Va.1989);" }, { "docid": "4156335", "title": "", "text": "900 (Bankr.D.N.J.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); Associates Fin. Servs. Corp. v. Purdue (In re Purdue), 187 B.R. 188 (S.D.Ohio 1995); Wright v. Commercial Credit Corp. (In re Wright), 178 B.R. 703 (E.D.Va. 1995), appeal dismissed without op., 77 F.3d 472 (4th Cir.1996)(unpublished table decision); Vaillancourt v. Marlow (In re Vaillancourt), 197 B.R. 464 (Bankr.M.D.Pa.1996); In re Cavaliere, 194 B.R. 7 (Bankr.D.Conn.1996); Castellanos v. PNC Bank, Nat’l Ass’n (In re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); Norwest Fin. Ga. v. Thomas (In re Thomas), 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Castellanos, 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Mitchell, 174 B.R. 900 (Bankr.E.D.Mo.1994); In re Hornes, 160 B.R. 709 (Bankr.D.Conn. 1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Hornes, 160 B.R. 709 (Bankr.D.Conn. 1993); In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993); see also Howard v. National Westminister Bank (In re Howard), 184 B.R. 644 (Bankr.E.D.N.Y.1995) (wholly unsecured nonconsensual judicial lien may be \"stripped down” in a Chapter 7 case); In re Gray, 182 B.R. 15 (Bankr.W.D.Va.1995) (denial of attorney's fees to secured creditor with no remaining collateral is not a modifi cation); In re Hutchins, 162 B.R. 1014 (Bankr.N.D.Ill.1994) (lender whose lien is eliminated by a foreclosure by the first mortgagee no longer has a security interest protected by § 1322(b)(2)); cf. In re Cardinale, 142 B.R. 42 (Bankr.D.R.I.1992) (pre-Nobelman case). . See In re Perry, 235 B.R. 603 (S.D.Tex.1999); American General Finance, Inc. v. Dickerson, 229 B.R. 539 (M.D.Ga.1999); Green Tree Consumer Discount Co. v. Miller (In re Miller), No. 99-13446DWS, 1999 WL 1052509 (Bkrtcy.E.D.Pa. Nov.5, 1999); In re Cater, 240 B.R. 420 (Bkrtcy.M.D.Ala.1999); In re Boehmer, 240 B.R. 837 (Bankr.E.D.Pa. 1999); In re Perkins, 237 B.R. 658 (Bankr.S.D.Ohio 1999); In re Cupp, 229 B.R. 662 (Bankr.E.D.Pa. 1999); In re Diggs," }, { "docid": "12493430", "title": "", "text": "large part, inconsistent with the authorities cited by the Creditor Group in their opposition memorandum. See, e.g., Lumber Exch. Bldg. Ltd. Partnership v. Mutual Life Ins. Co. of N.Y. (In re Lumber Exch. Bldg. Ltd. Partnership), 968 F.2d 647, 650 (8th Cir.1992); Sullivan Cent. Plaza I, Ltd. v. Banc-Boston Real Estate Capital Corp. (Matter of Sullivan Cent. Plaza I, Ltd.), 935 F.2d 723, 728 (5th Cir.1991); In re Winslow, 123 B.R. 641, 646 (D.Colo.1991); Koerner v. Colonial Bank (Matter of Koerner), 800 F.2d 1358, 1367-68 (5th Cir.1986). The issue at this point of the instant action is whether Appellants are likely to succeed on the merits of their appeal. In the absence of any authority in support of Appellants’ conclusion that conversion was inappropriate under 11 U.S.C. §§ 1112(b)(2), (3), and (5), and in light of the authorities cited by Appellees, we must conclude that Appellants are unlikely to prevail. II. Potential Of Harm To Appellants Without Stay. Appellants argue that they are harmed without a stay because the result of their appeal may be meaningless if Mr. Raja-la, the Chapter 7 trustee, sells the Debtor’s assets in the near future. In their motion for reconsideration, Appellants cite two authorities for this proposition. See In re St. Johnsbury Trucking Co., Inc., 185 B.R. 687, 690 (S.D.N.Y.1995); In re Advanced Mining Systems, Inc., 173 B.R. 467, 468 (S.D.N.Y.1994). Several courts, however, have held that the fact that an appeal may be rendered moot without a stay does not itself constitute irreparable harm. See In re Ba-Mak Gaming Intl., Inc., Civ.A. No. 95-1991, 1996 WL 411610, at *2 (E.D.La.1996); In re 203 North LaSalle St. Partnership, 190 B.R. 595, 597 (N.D.Ill.1995); In re Fairmont Communications Corp., No. 92 B 44861 (JLG), 1993 WL 428710, at *3 (Bankr.S.D.N.Y.1993); In re Moreau, 135 B.R. 209, 215 (N.D.N.Y.1992); In re Kent, 145 B.R. 843, 844 (Bankr.E.D.Va.1991); In re Public Serv. Co. of New Hampshire, 116 B.R. 347, 349-50 (Bankr.D.N.H.1990); In re Dakota Rail, Inc., 111 B.R. 818, 821 (Bankr.D.Minn.1990); In re Charter Co., 72 B.R. 70, 72 (Bankr.M.D.Fla.1987); In re Great Barrington Fair & Amusement," }, { "docid": "308986", "title": "", "text": "in bankruptcy matters. As one bankruptcy court has astutely observed, “[i]t remains open whether a contingency enhancement in bankruptcy cases may be awarded where the risk of nonpayment is due to prospective lack of funds in the estate (contrasted with risk of outcome in the Burlington sense).” In re First Am. Health Care of Ga., Inc., 212 B.R. 408, 414 n. 5 (Bankr.S.D.Ga.1997) (Davis, J.). Nonetheless, enhancement is reserved only for “rare” and “exceptional” cases. Delaware I, 478 U.S. at 564-65, 106 S.Ct. 8088. Accordingly, the most significant factor in adjusting fees is the results obtained, but there must be “specific evidence in the record to show that the quality of representation was superior to that which one would reasonably expect in light of the rules [sic] claimed.” Grant, 908 F.2d at 880 (quoting Norman, 836 F.2d at 1302); In re Gencor Indus., 286 B.R. 170, 178 (Bankr.M.D.Fla.2002). Additional criteria have been considered by courts including: (1) An outstanding result for creditors, In re Southern Merchandise Distributors, Inc., 117 B.R. 725, 727 (Bankr.S.D.Fla.1990); (2) An extraordinary effort, In re Aminex Corp., 15 B.R. 356, 364 (Bankr. S.D.N.Y.1981); (3) The full payment of all creditors, In re D.W.G.K Restaurants, 106 B.R. 194, 197 (Bankr.S.D.Cal.1989); (4) The expedience with which the professional performed its duties, In re Summit Communities of Florida, Inc., 84 B.R. 863, 871 (Bankr. S.D.Fla.1988); (5) The difficulty in finding counsel in the local or other relevant market, Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987); (6) The delay in receiving fees from the time the services were performed, In re White Motor Credit Corp., 50 B.R. 885 (Bankr.N.D.Ohio 1985); (7) The initial risk or contingency of nonpayment of any legal fees, In re Southern Merchandise Distributors, Inc., 117 B.R. 725, 728 (Bankr.S.D.Fla.1990); (8) The existence of factors not initially considered in calculating the professional’s standard fee, In re White Motor Credit Corp., 50 B.R. 885, 889 (Bankr.N.D.Ohio 1985); (9) The nunc pro tunc adjustment of original retention orders to avoid inequity, In re Churchfield Management & Invest." }, { "docid": "23584407", "title": "", "text": "is the lodestar approach, Boston & Maine Corp. v. Moore, 776 F.2d 2 (1st Cir.1985), which expands upon the criteria of Bankruptcy Code § 330(a)(1). It requires the court to determine a reasonable hourly rate and apply it to the time reasonably expended, and then perhaps adjust by various factors. Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir.1984); M. Berenson Co. v. Faneuil Hall Marketplace, Inc., 671 F.Supp. 819 (D.Mass.1987). This language represents a shift from prior bankruptcy law, which emphasized the policies of conservation of the estate and economy of administration. In re Casco Bay Lines, Inc., 25 B.R. 747 (Bankr. App. 1st Cir.1982). The effort now is “to balance a spirit of economy on the one hand with fees sufficiently close to market rates to attract qualified counsel on the other.” Boston & Maine Corp. v. Sheehan, Phinney, Bass & Green, 778 F.2d 890, 898 (1st Cir.1985); In re WHET, Inc., 61 B.R. 709, 715 (Bankr.D.Mass.1986). Even without regard to objections by other parties in interest, the court has an independent judicial responsibility to evaluate professionals’ fees. In re First Software Corp., 79 B.R. 108 (Bankr.D.Mass.1987). “The court ... is itself an expert on the question (of attorney’s fees) and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of testimony of witnesses as to value.” In re WHET, Inc., 61 B.R. 709, 713 (Bankr.D.Mass.1986). TRAVEL TIME Some courts hold that travel time cannot be billed, although special exceptions may be made. E.g., In re Grimes, 115 B.R. 639 (Bankr.D.S.D.1990); In re Carter, 101 B.R. 170 (Bankr.D.S.D.1989); Jungkurth v. Eastern Financial Services, Inc., 87 B.R. 333, 337 (E.D.Pa.1988); In re S.T.N Enterprises, 70 B.R. 823, 837 (Bankr.D.Vt.1987); In re Seneca Oil Co., 65 B.R. 902, 909 (Bankr.W.D.Okla.1986); In re Pacific Express, Inc., 56 B.R. 859 (Bankr.E.D.Cal.1985); In re Four Star Terminals, Inc., 42 B.R. 419 (Bankr.D.Alaska 1984). Others allow for one half the attorney’s hourly rate. In re Environmental Waste Control, 122 B.R. 341 (Bankr.N.D.Ind.1990); In re Ginji Corp., 117" }, { "docid": "11387556", "title": "", "text": "Matter of Consolidated Bancshares, Inc., 785 F.2d 1249, 1253 (5th Cir. 1986); In re Rockwood Computer Corp., 61 B.R. 961, 964-965 (Bankr.S.D.Ohio 1986); In re Russell Transfer, Inc., 59 B.R. 871, 873 (Bankr.W.D. Va.1986); Matter of Patch Graphics, 58 B.R. 743, 745 (Bankr.W.D.Wis.1986); In re General Oil Distributors, Inc., 51 B.R. 794, 805 (Bankr.E.D. N.Y.1985); In re Baldwin-United Corp., 43 B.R. 443, 451-452 (S.D.Ohio 1984); In re Calumet Realty Co., 34 B.R. 922, 926 (Bankr.E.D.Pa. 1983); In re Richton Int'l Corp., 15 B.R. 854, 856 (Bankr.S.D.N.Y.1981). . Elsewhere, similar standards are applied. Efforts are found to substantially contribute to a case when they foster and enhance, rather than retard or interrupt the progress of reorganization. See, e.g. Calumet Realty, supra at 926; Richton Inti, supra at 856. Many courts have found that the principal test of \"substantial contribution” is simply whether a benefit enures to the debtor's estate, the creditors, and, to the extent relevant, the stockholders. See, e.g. Buttes Gas & Oil, supra at 194; Rockwood Computer, supra at 965; Jensen-Farley Pictures, supra at 569. .Services provided solely for the benefit of a creditor/client are not compensable. Buttes Gas & Oil, supra at 194 and 195; In re Standard Metals Corp., 105 B.R. 625, 630 (Bankr.D.Colo. 1989); U.S. Lines, supra at 430; Baldwin-United, 79 B.R. at 338; Consolidated Bancshares, supra at 1253 (efforts not merely on behalf of his client’s interest); General Oil Distributors, supra at 805; In re United Puerto Rican Food Corp., 41 B.R. 565, 574 (Bankr.E.D.N.Y.1984) (efforts benefitted the creditor alone); Calumet Realty, supra at 926; Richton Int'l, supra at 856. But see, In re 1 Potato 2, Inc., 71 B.R. 615, 618 n. 3 (Bankr.D.Minn.1987). . Just as extensive participation alone is insufficient grounds to justify compensation {U.S. Lines, supra at 430; In re McLean Industries, Inc., 88 B.R. 36, 38 (Bankr.S.D.N.Y.1988); In re D.W.G.K. Restaurants, Inc., 84 B.R. 684, 690 (Bankr.S.D.Cal.1988); Ace Finance, supra at 830), so the size of the creditor’s claim alone is insufficient grounds to deny compensation {In re White Motor Credit Corp., 50 B.R. 885, 902-904 (Bankr.N.D.Ohio 1985)). . A" }, { "docid": "23584423", "title": "", "text": "B.R. 709, 712 (Bankr.D.Mass.1986). HOLDING BACK—REQUESTS FOR INTEREST Some of the applicants in this matter have requested that this Court, to the extent that it.does not allow the full amount of the interim requests, allow for a payment of interest on any amount held back. The applicants cite Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989). In that civil rights case the court stated: . Clearly, compensation received several years after the services are rendered—as it frequently is in complex civil rights litigation—is not equivalent to the same dollar amount received ... as would normally be the case with private billings. We agree, therefore, that an appropriate adjustment for delay in payment—whether by the application of current rather than historic hourly rates otherwise—is within the contemplation of the statute. 491 U.S. at 283, 109 S.Ct. at 2469. The Jenkins principle appears to have been applied in bankruptcy. In re Dodge, 104 B.R. 491, 493 n. 1 (Bankr.S.D.Fla.1989). Another bankruptcy court allowed the payment of interest on awarded but unpaid fees. In re D.W.G.K. Restaurants, Inc., 106 B.R. 194, 197-98 (Bankr.S.D.Cal.1989). The trustee cites a recent Texas case where such interest was granted. In re First Republic Corp., No. 388-34546-SAF-11 (Bankr.N.D.Texas 1991). But in that case the debtors took funds that were to be the interim fees and invested them at 8%. The court held that “based on the results obtained and the interest earned by the debtors on the deferred amounts, the court concludes ... that the fees should be enhanced to compensate counsel and the accountants for the delay in payments.” Id. There is indeed a common practice, when dealing with interim fees, of holding back the payment of a certain percentage until the ultimate final allowance of fees. See In re Public Service Co. of N.H., 102 B.R. 276, 278 (Bankr.D.N.H.1989); In re White Motor Credit Corp., 50 B.R. 885, 891 (Bankr.N.D.Ohio 1985); In re Four Star Terminals, Inc., 42 B.R. 419 (Bankr.D.Alaska 1984); In re New Eng land. Carpet Co., 28 B.R. 766 (Bankr.D.Vt.1983), aff'd sub. nom. Gravel, Shea & Wright, Ltd." }, { "docid": "4590822", "title": "", "text": "Holding, Inc., No. 08-41374, 2009 WL 349832, at *3 (Bankr.E.D.Tex. Feb 05, 2009); Official Comm, of Unsecured Creditors of Verestar, Inc. v. Am. Tower Corp. (In re Verestar, Inc.), 343 B.R. 444, 462 (Bankr.S.D.N.Y.2006); Gray v. O’Neill Props. Group, L.P. (In re Dehon, Inc.), No. 02-41045, 2004 WL 2181669, at *3 (Bankr.D.Mass. Sept.24, 2004); In re Worldcom, Inc., No. 02-13533(AJG), 2003 WL 23861928, at *35 (Bankr.S.D.N.Y. Oct 31, 2003); Bonham, 226 B.R. at 76; Cent. Claims Servs., Inc. v. Eagle-Picher Indus., Inc. (In re Eagle-Picher Indus., Inc.,), 192 B.R. 903, 907 (Bankr.S.D.Ohio 1996); In re Drexel Burnham Lambert Group, Inc., 138 B.R. 723, 764 (Bankr.S.D.N.Y.1992); Lease -A-Fleet, 141 B.R. at 874; In re Murray Indus., Inc., 119 B.R. 820, 829 (Bankr.M.D.Fla.1990); Munford, Inc. v. TOC Retail, Inc. (In re Munford), 115 B.R. 390, 397 (Bankr.N.D.Ga.1990); Julien Co., 120 B.R. at 934; In re Crown Mach. & Welding, Inc., 100 B.R. 25, 27 (Bankr.D.Mont.1989); In re I.R.C.C., Inc., 105 B.R. 237, 242, (Bankr.S.D.N.Y.1989); In re Donut Queen, Ltd., 41 B.R. 706, 709 (Bankr.E.D.N.Y.1984); Stop & Go, 49 B.R. at 747; DRW Property, 54 B.R. at 495; In re Crabtree, 39 B.R. 718, 723 (Bankr.E.D.Tenn.1984); Snider Bros., 18 B.R. at 234; In re Richton Int’l Corp., 12 B.R. 555, 558 (Bankr.S.D.N.Y.1981). . See, e.g., Kheel, 369 F.2d at 847; Continental Vending Mach., 517 F.2d at 1000; Cintra Realty, 413 F.2d at 303; Pemberton v. Davis, 403 F.2d 515, 519 (9th Cir.1968); Commercial Envelope, 1977 WL 182366, at *3; British Columbia Inv. Co. v. FDIC, 420 F.Supp. 1217, 1225 (S.D.Cal.1976); D.H. Overmyer, 1976 WL 168421, at *7; In re Security Prod. Co., 310 F.Supp. 110, 116 (E.D.Mo.1969); In re Ira Haupt & Co., 289 F.Supp. 966, 972 (S.D.N.Y.1968); In re Seatrade Corp., 255 F.Supp. 696, 699 (S.D.N.Y.1966); Food Fair, 10 B.R. at 126; In re Barnett, 5 B.R. 525, 526 (Bankr.D.N.M.1980); Vecco Const., 4 B.R. at 409; A & I Realty Corp. v. Kent Dry Cleaners, Inc., 61 Misc.2d 887, 307 N.Y.S.2d 99, 101 (N.Y.1969). . The trustee in Sampsell had asked the bankruptcy referee to marshal the non-debt- or's assets for the" }, { "docid": "5679202", "title": "", "text": "03-18462, 2010 WL 3490976 (Bankr.E.D.La. Aug.23, 2010); Armstrong v. Trustco Bank (In re Armstrong), 434 B.R. 120 (Bankr.S.D.N.Y.2010); In re Ryan, No. 08-40601, 2010 WL 2889107 (Bankr.D.Mass. July 21, 2010); In re Ryan, 431 B.R. 1 (Bankr.D.Mass. 2010); In re McLemore, 426 B.R. 728 (Bankr.S.D.Ohio 2010); City of Flint v. Bekofske (In re McGee), 414 B.R. 132 (Bankr.E.D.Mich.2009); In re Woods, 406 B.R. 293 (Bankr.N.D.Ohio 2009); In re Stansbury, 403 B.R. 741 (Bankr.M.D.Fla.2009); In re Ruhl, 399 B.R. 49 (Bankr.E.D.Wis.2008); McDonald v. Bank Fin. (In re McDonald), 336 B.R. 380 (Bankr.N.D.Ill.2006); In re Thaxton, 335 B.R. 372 (Bankr.N.D.Ohio 2005); In re Searcy, 333 B.R. 617 (Bankr.D.Mass.2005); In re Bryant, 323 B.R. 635 (Bankr.E.D.Pa.2005); In re Stiller, 323 B.R. 199 (Bankr.W.D.Mich.2005); In re Kincaid, 316 B.R. 735 (E.D.Cal.2004); In re MacKenzie, 314 B.R. 277 (Bankr.D.N.H. 2004); In re Hudson, 260 B.R. 421 (Bankr.W.D.Mich.2001); Factors Funding Co. v. Fili (In re Fili), 257 B.R. 370 (1st Cir. BAP 2001); In re Harnish, 224 B.R. 91 (Bankr.N.D.Iowa 1998); In re Bernard, 189 B.R. 1017 (Bankr.N.D.Ga.1996); In re Basham, 167 B.R. 903 (Bankr.W.D.Mo.1994); Lee Serv. Co. v. Wolf (In re Wolf), 162 B.R. 98 (Bankr.D.N.J.1993); Fleet Real Estate Funding Corp. v. Fewell (In re Fewell), 164 B.R. 153 (Bankr.D.Colo.1993); Fireman's Fund Mortg. Corp. v. Hobdy (In re Hobdy), 130 B.R. 318 (9th Cir. BAP 1991); In re Hebert, 61 B.R. 44 (Bankr.W.D.La.1986); In re Stein, 63 B.R. 140 (Bankr.D.Neb.1985). . Section 1329 governs postconfirmation modification of plans, and provides that the \"plan may be modified, upon request of the debtor, the trustee, or the holder of an allowed secured claim,” under certain enumerated circumstances. See 11 U.S.C. § 1329(a). . In this respect, this Court respectfully disagrees with the implication in Ryan I and Ryan II that, in some cases, leaving allowed prepetition secured arrears to be dealt with after completion of a Chapter 13 plan is consistent with the permitted treatment of a secured claim under § 1322(b)(5) or, at least, does not constitute an unreasonable delay under § 1307(c)(1) in payment of that claim. . Long-term debts are those that come due" } ]

[ { "docid": "14986990", "title": "", "text": "whether Mr. and Mrs. Chomakos received property of reasonably equivalent value in exchange for the money they wagered at the casino is the point at which their bets were placed. See In re Morris Communications NC, Inc., 914 F.2d 458, 466 (4th Cir.1990), quoting Collier on Bankruptcy § 548.09 at p. 116 (15th ed.1984) as follows: “The critical time is when the transfer is ‘made.’ Neither subsequent depreciation in nor appreciation in valué of the consideration affects the ... question whether reasonable [sic] equivalent value was given.” Where gambling is lawful, as it was in the case at bar, the placing of a bet gives rise to legally enforceable contract rights. These contract rights constitute “property,” of course, and at the time which Collier identifies as “critical” — a time before anyone can know whether the bet will be successful — the property has economic value. The property is not unlike futures contracts purchased on margin. The investor in futures may win big, or his position may be wiped out, but the contractual right to a payoff if the market happens to move the right way at the right time constitutes a value reasonably equivalent to the money at risk. The trustee’s brief takes the bankruptcy court to task for making the suggestion — a suggestion characterized by the trustee as “incredible” — that gambling is arguably “an ‘investment’ that can have economic val-ue_” Chomakos, 170 B.R. at 593. But the trustee looks at the picture only as of the time when Mr. and Mrs. Chomakos left the casino “with nothing in exchange for the monies they gambled away.” The time that counts is not the time when the bet is won or lost, but the time when the bet is placed. The “investment” may turn out badly, but unless and until it does, the contractual right to receive payment in the event that it turns out well is obviously worth something. Morris Communications illustrates the point nicely. At issue there was the valuation of the debtor’s interest in a corporation (“C-PACT”) that had only one asset — an application" } ]

[ { "docid": "8520802", "title": "", "text": "548.05[l][b], at 548-35. None of the forms of value Appellants argue Adler received, singly or combined, rises to a level that may be deemed “reasonably equivalent” commercial value. First, the statute requires that the debtor must have “received” the value in question “in exchange” for the transfer or obligation at stake. An unperformed promise to pay or to deliver securities in the future, after the debtor has completed the transfer or incurred the obligation, cannot satisfy the concept of a fair exchange. The requirement that the debtor must have “received” the value in question expresses a temporal condition demanding an element of contemporaneity in the determination of whether something close to the reasonable equivalence has been exchanged. Full performance on the debt- or’s part in return for an executory promise to perform on the other party falls short of the requisite standard of equivalent worth at the time of the transaction. Under § 548(d)(2)(A), the term “value” would exclude future considerations, at least to the extent they remain unperformed. See Bailey v. Metzger, Shadyac & Schwarz (In re Butcher), 72 B.R. 447 (Bankr.E.D.Tenn.1987); 5 Collier ¶ 548.07[2][a], at 548-68; ¶ 548.05[1][b], at 548-39 (“The language section 548(d)(2)(A), seeming to contemplate only a present advance, or transfer of property as security for, or the discharge of, an antecedent debt, generally leaves no room for a mere executory promise to constitute value.”). (ii) The Potential Buy-In Value For the same reasons, this Court finds no clear error in the bankruptcy court’s decision not to credit Appellants’ theory claiming intrinsic value embedded in the buy-in Adler allegedly had the potential to realize. The pertinent inquiry regarding reasonably equivalent value requires a determination not only as to the sufficiency of the value given, but also as to whether the value was received in exchange for the transfer in question. The notion of a fairly contemporaneous exchange of value suggests some element of consciousness or recognition among the parties concerning the particular interest in property at issue and the value being traded. The bankruptcy court rejected Appellants’ allegations that Adler intended to conduct a buy-in." }, { "docid": "4579849", "title": "", "text": "a trustee’s effort to recoup the debtor’s gambling losses, and the court noted that in jurisdictions in which gambling is legal, the placing of a bet “gives rise to legally enforceable contract rights.” Id. at 771. At the time of the transfer (i.e., the placing of the bet), those contract rights have economic value. Id. As the court observed: The property is not unlike futures contracts purchased on margin. The investor in futures may win big, or his position may be wiped out, but the contractual right to a payoff if the market happens to move the right way at the right time constitutes a value reasonably equivalent to the money at risk. Id. As indicated previously, the reasonableness of the value must be determined by the facts and circumstances of the particular case. The notion that the prepayment of future legal services can never constitute reasonable value, however, must be rejected for the same reason discussed in Chomakos and Leonard. After receipt of the $50,000.00 flat fee, the defendant entered into a binding contract. It promised to represent the debtors in any future adversary proceeding, and that promise gave rise to legally enforceable contract rights. While perhaps “intangible” in nature, the defendant’s promise to supply future legal services was not an “unperformed promise to furnish support to the debtor,” nor was it without any ascertainable economic value at the time of the transfer. Clearly, the promise of representation through the “conclusion” of any dischargeability proceeding constituted an economic benefit. See Tarin, 454 B.R. at 182 (quoting In re S75 Park Ave. Assocs., 182 B.R. 690, 695-96 (Bankr.S.D.N.Y.1995)) (the determination of reasonable value focuses on whether the debt- or received an “economic benefit,” either directly or indirectly). The only real question is whether that value could objectively be characterized as roughly comparable to what the debtors gave up. Acknowledging that future legal services have “value” is also consistent with the notion that flat fees (or prepayment of fees) for bankruptcy services is permissible, subject only to review for reasonableness. In Lamie, the Supreme Court ruled that an attorney for a" }, { "docid": "14986986", "title": "", "text": "DAVID A. NELSON, Circuit Judge. This is a bankruptcy ease in which the trustee sought to recover pre-petition gambling losses from the operator of a state-regulated casino. The casino operator contended that the opportunity for the debtors to win more than the sums they bet, coupled with the entertainment value that the casino provided its customers, constituted “reasonably equivalent value” and “fair consideration” for the bets at issue. The bankruptcy court accepted this contention and held that the bets were not voidable under the Bankruptcy Code or under the Uniform Fraudulent Conveyance Act. The district court affirmed the bankruptcy court’s decision on appeal. We shall affirm the affirmance. I The debtors, George and Nikki Chomakos of Rochester, Michigan, filed a bankruptcy petition on August 2, 1990, after having lost several thousand dollars at a casino operated by Flamingo Hilton Corporation in Las Vegas, Nevada. The petition sought relief under Chapter 11 of the Bankruptcy Code, but the matter was soon converted into a Chapter 7 case. The trustee in bankruptcy subsequently commenced an adversary proceeding against Flamingo in the United States Bankruptcy Court for the Eastern District of Michigan. The trustee’s complaint alleged that Mr. and Mrs. Chomakos had been insolvent for six years prior to the filing of the petition; that during this time Nikki Chomakos transferred various sums to Flamingo for the purpose of gambling; that she made some of these transfers during the year preceding the filing; and that she did not receive a reasonably equivalent value or fair consideration in exchange. The complaint was subsequently amended to allege that George Cho-makos had also made losing bets at the casino while insolvent. Invoking 11 U.S.C. § 548(a), the trustee sought to recover under that section losses incurred during the year preceding the bankruptcy filing. Under Mich. Comp. Laws 566.11 et seq., Michigan’s version of the Uniform Fraudulent Conveyance Act, the trustee sought to recover losses incurred throughout the entire six-year period in which Mr. and Mrs. Chomakos were alleged to have been insolvent. The case went to trial, and the bankruptcy court found that the debtors should" }, { "docid": "14986989", "title": "", "text": "transfer made by the debtor within one year before the filing of the petition if the debtor was insolvent on the date of the transfer and “received less than a reasonably equivalent value in exchange for [the] transfer. ...” 11 U.S.C. § 548(a)(2)(A) and (B)©. “Value” is defined as “property, or satisfaction or securing of a present or antecedent debt of the debtor....” 11 U.S.C. § 548(d)(2)(A). Under Michigan’s Uniform Fraudulent Conveyance Act, to which Flamingo does not deny it is subject, a conveyance made by one who is insolvent is fraudulent as to creditors if made without a fair consideration. Mich. Comp. Laws 566.14. “Fair consideration” is given for property, Mich. Comp. Laws 566.13 provides, “[w]hen in exchange for such property ... as a fair equivalent therefor, and in good faith, property is conveyed or an antecedent debt is satisfied....” The Michigan statute does not have a time limit corresponding to that in the Bankruptcy Code; the two provisions are substantially the same otherwise. The point in time as of which we must determine whether Mr. and Mrs. Chomakos received property of reasonably equivalent value in exchange for the money they wagered at the casino is the point at which their bets were placed. See In re Morris Communications NC, Inc., 914 F.2d 458, 466 (4th Cir.1990), quoting Collier on Bankruptcy § 548.09 at p. 116 (15th ed.1984) as follows: “The critical time is when the transfer is ‘made.’ Neither subsequent depreciation in nor appreciation in valué of the consideration affects the ... question whether reasonable [sic] equivalent value was given.” Where gambling is lawful, as it was in the case at bar, the placing of a bet gives rise to legally enforceable contract rights. These contract rights constitute “property,” of course, and at the time which Collier identifies as “critical” — a time before anyone can know whether the bet will be successful — the property has economic value. The property is not unlike futures contracts purchased on margin. The investor in futures may win big, or his position may be wiped out, but the contractual right to" }, { "docid": "14986987", "title": "", "text": "against Flamingo in the United States Bankruptcy Court for the Eastern District of Michigan. The trustee’s complaint alleged that Mr. and Mrs. Chomakos had been insolvent for six years prior to the filing of the petition; that during this time Nikki Chomakos transferred various sums to Flamingo for the purpose of gambling; that she made some of these transfers during the year preceding the filing; and that she did not receive a reasonably equivalent value or fair consideration in exchange. The complaint was subsequently amended to allege that George Cho-makos had also made losing bets at the casino while insolvent. Invoking 11 U.S.C. § 548(a), the trustee sought to recover under that section losses incurred during the year preceding the bankruptcy filing. Under Mich. Comp. Laws 566.11 et seq., Michigan’s version of the Uniform Fraudulent Conveyance Act, the trustee sought to recover losses incurred throughout the entire six-year period in which Mr. and Mrs. Chomakos were alleged to have been insolvent. The case went to trial, and the bankruptcy court found that the debtors should be deemed to have been insolvent from and after January of 1988; that at various times in June and September of 1989 Nikki Cho-makos won a total of $9,000 playing slot machines at the Flamingo casino, while losing a total of $14,000; and that George Cho-makos lost a net amount of $2,710 at the casino after January of 1988 and before the filing of the petition. The combined net losses of the two debtors during the period when they were insolvent came to $7,710. In an opinion published as In re Chomakos, 170 B.R. 585 (Bankr.E.D.Mich.1993), the bankruptcy court (Shapero, J.) held that the relief requested by the trustee should be denied because defendant Flamingo gave reasonably equivalent value in exchange for the debtors’ money. The order denying relief was appealed to the district court. That court affirmed the decision on the basis of Judge Shapero’s opinion, and the trustee filed a timely notice of appeal. II Under the fraudulent transfer section of the Bankruptcy Code, the trustee may undo as constructively fraudulent any property" }, { "docid": "18569701", "title": "", "text": "a net loser, the opportunity of winning more than the amount bet and entertainment value of gambling constitute reasonably equivalent value and fair consideration; and (c) even though George Chomakos appears not to have won anything, the opportunity of win-ninS more than the amount bet and ena-tainment value of gambling constitute reasonably equivalent value and fair consider-ati°n. It is also unclear to Flamingo whether the Debtors were insolvent at the time the transfers were made and/or were rendered insolvent by such transfers, The parties stipulated to the following facts in the Joint Final Pretrial Order: (1) On August 2,1990, the Debtors filed for relief under Chapter 11 of the Bankruptcy Code. (2) On September 16, 1990, an order for relief under Chapter 7 was entered. (3) The Trustee is the representative of the bankruptcy estate of the Debtors. (4) The Trustee has standing to seek recovery of fraudulent transfers pursuant to 11 U.S.C. § 548 and Mich.Comp.Laws Ann. §§ 566.11-566.23. (5) Nikki Chomakos gambled in Flamingo’s casino at its slot machines. (6) Nikki Chomakos and Flamingo’s employees signed Flamingo Hilton’s Survey of Certain Gaming Transactions forms whereby Nikki Chomakos declared losses of $3,000 on June 15, 1989, $6,000 on June 16,1989 and $5,000 on September 11,1989. (7) Nikki Chomakos signed W-2G forms declaring winnings of $2,000 on June 15, 1989, $5,000 on June 16, 1989 and $2,000 on September 11, 1989 at Flamingo’s slot machines. (8) George Chomakos lost an estimated $900 on July 1,1987 gambling at Flamingo. (9) George Chomakos lost an estimated $100 on November 1, 1987 gambling at Flamingo. (10) George Chomakos lost an estimated $600 on January 4,1988 gambling at Flamingo. (11) George Chomakos lost an estimated $600 on June 20,1988 gambling at Flamingo. (12) George Chomakos lost an estimated $1,400 on June 12, 1989 gambling at Flamingo. (13) George Chomakos lost an estimated $110 on April 29,1990 gambling at Flamingo. (14) The Complaint shall be deemed amended to allege and seek the recovery of the following transfers and/or conveyances by George Chomakos to Flamingo for less than reasonably equivalent value at a time when Debtors" }, { "docid": "14986993", "title": "", "text": "blackjack table where Mr. Chomakos did his gambling will win $3 if he receives a black jack. At the point in time when Mr. Choma-kos placed a $2 bet, his chance of winning $3 had an economic value no less real in nature than the economic value of C-PACT’s chance of winning a cellular telephone license. The existence of an economic value may be immaterial, however, if the dollar value of the gambler’s chance of winning — augmented, perhaps, by an element of entertainment value — is not “reasonably equivalent” to the amount of money wagered. We believe that the evidence presented by Flamingo showed a reasonable equivalency here, and the trustee presented no evidence to the contrary. The casino’s evidence showed, among other things, that the gambling business in Nevada is closely regulated by the state; that this regulation extends to payout ratios for both slot machines and table games; that casinos depend on repeat business, which is encouraged by customers winning; and that competition among casinos is intense. The evidence further showed that a three dollar slot machine bet could produce a jackpot of over a million dollars, which would be paid on the spot; that in a single year, Flamingo slot machine players had more than 9,500 jackpots of $1,200 or more, in addition to many lesser jackpots; that for all the dollars deposited in all Flamingo slot machines over the course of a year, Flamingo paid out 94 percent in winnings; and that the payout ratio for the particular machines played by Mrs. Chomakos was even higher, ranging from 95.73 percent to 97.43 percent. The customer enjoys better odds at the blackjack table, moreover. Assuming the blackjack player has a fair knowledge of the game and uses good basic strategy, the evidence showed that the house advantage is only one percent or less. The trustee disputes none of these facts and does not seriously challenge Flamingo’s good faith. Looking at the situation from the standpoint of creditors, however, the trustee argues that the very existence of a house advantage, coupled with the fact that Mr. and" }, { "docid": "18324702", "title": "", "text": "one-year time period before the bankruptcy filing, Brennan transferred more to Fisher than Fisher transferred to Brennan. The Bankruptcy Court concluded that all of these transfers were “simply transfers made between two people living together and working to pay the living expenses of the household,” and, therefore, the evidence is insufficient to show the elements of a preference or fraudulent transfer pursuant to the Bankruptcy Code or Ohio state law. Further, the Bankruptcy Court indicates that, “[t]he Trustee conveniently and inexplicably forgets that his own Exhibits show that Brennan ... transferred more to the Debtor [Fisher] than she received over the period of time in question.” The Trustee offers no explanation in her pre-trail Brief, in her opening statement, in her post-trial Brief or now as to why she argues that the relevant time period is between November 1, 2002, and Fisher’s bankruptcy filing. The Bankruptcy Court found that, “[a]s with most of the Trustee’s pleadings regarding this large group of transfers, the court finds the Trustee’s assertions unclear.” To this, this Court would agree. Since the Trustee is now appealing a decision that was not made, the Trustee’s arguments are not well-founded. Further, the Trustee has presented no evidence that the factual determinations of the Bankruptcy Court are in error and this Court finds no error in those determinations. B. Issues of Law In addition to appealing a decision that was not made, the Trustee has also argued certain issues of law that are not well founded. Each will be addressed seriatim. First, the Trustee cites In re Chomakos, 69 F.3d 769, 771 (6th Cir.1995), cert. denied, 517 U.S. 1168, 116 S.Ct. 1568, 134 L.Ed.2d 667 (1996), for the proposition that it was error to net the multiple transfers. In Chomakos, the court considered whether reasonably equivalent value was received for each individual gambling wager. The Chomakos court also indicated that “the critical time is when the transfer is made.” Id. However, this statement refers to a determination of whether there has been appreciation or depreciation in value and appreciation or depreciation is not an issue in this case." }, { "docid": "14986995", "title": "", "text": "Mrs. Chomakos ultimately lost more than they won, means that there was no reasonably equivalent economic benefit. And citing In re Young, 148 B.R. 886 (Bankr.D.Minn.1992), aff'd 152 B.R. 939 (D.Minn.1993), where church contributions made by an insolvent donor were held to be fraudulent conveyances, the trustee maintains that it would be anomalous for gambling losses not to be treated as fraudulent conveyances too. As far as church contributions are concerned, the cases are in conflict. While the Young donor was held not to have received reasonably equivalent value, bankruptcy courts reached a contrary result in In re Missionary Baptist Foundation of America, Inc., 24 B.R. 973 (Bankr.N.D.Tex.1982), and In re Moses, 59 B.R. 815 (Bankr.N.D.Ga.1986). There is no need for us to take sides in the church contribution controversy, however. Looking at the matter from the standpoint of creditors, as the trustee urges us to do, it seems reasonably clear that the intangible property rights accruing to Mr. and Mrs. Chomakos when they placed their bets differed significantly from the benefits accruing to the donors in the church contribution cases. A debtor who contributes to a church may receive spiritual and social returns of great value to the debtor, but such returns are not likely to be of much benefit to creditors. A debtor who places a bet in a fair and lawful game of chance, on the other hand, may receive hard cash in return. On one of the days when Mrs. Chomakos played Flamingo’s slot machines, for example, she had winnings of $5,000. Suppose she had won a $5,000 jackpot at the start of her visit to the casino and had stopped playing as soon as she won; the return on her “investment” would obviously have benefited her creditors. It is true that gambling odds always favor the house, and that Mrs. Chomakos would have been almost certain to lose her $5,000 jackpot — and more — -if she continued playing long enough. On the record before us, however, we cannot say that the existence of a modest house advantage means that unsuccessful bets are fraudulent conveyances." }, { "docid": "15853491", "title": "", "text": "the plaintiff trustee tried to set aside a promissory note, given to enable the debtor to get a trade discount for buyers who paid by note, as a fraudulent conveyance. The Circuit Court found that fair consideration was given because \"the entire contract was carried out and the promise was executed” and the promise had been performed within five days from when it was given and \"substantially before the bankruptcy.” Id. . The Court concluded in R.M.L. that although \"value” had been contributed, the bank had not contributed \"reasonably equivalent value”. As further discussed below, that term is used to determine whether a transfer constitutes a constructive fraudulent conveyance under § 548(a)(1)(B) of the Bankruptcy Code and is not relevant to the question whether a conveyance is intentionally fraudulent under § 548(a)(1)(A) or whether a defendant can sustain a defense under § 548(c). . Defendants cite on their behalf a fraudulent conveyance case in which a trustee unsuccessfully sued a large casino on the theory that it took the debtor's money and gave no value in return. In re Chomakos, 69 F.3d 769 (6th Cir.1995). The Court found that the casino had given value to the Debtor by providing him with a lawful chance to win. Its reasoning does not justify the diversion of company assets present in this case. . Defendants state, citing Exh. N, that Ama-nat testified that 40 firms had refused to buy or assist in the transfer of the E*Trade shares. (Def. Memo of Law, p. 40.) . Plaintiffs' counterclaims in an E*Trade adversary proceeding brought against the Debt- or seek damages from E*Trade on the ground, among others, that the Debtor suffered damages because of economic duress imposed by E*Trade, as well as E*Trade’s failure to disclose that it never intended to pay the Earn Out. Counterclaims, ¶ 36-38, 53 in E*Trade Financial Corp. v. MarketXT Holdings Corp., Adv. Pro. No. 05-1082(ALG). See also this Court's decision on the parties’ cross-motions to dismiss, E*Trade Financial Corp. v. MarketXT Holdings Corp., 2006 WL 2864963 (Bankr.S.D.N.Y. Sept. 29, 2006). . Defendants have also submitted a declaration from" }, { "docid": "15948507", "title": "", "text": "one, such as we have before us now, is to be determined at the time of purchase. See Fairchild, 6 F.3d at 1126-27; In re Chomakos, 69 F.3d 769, 770 (6th Cir.1995); see also 5 Collier on Bankruptcy ¶ 548.02[2]. Third, and critically, Hays’s position would subvert the defensive character of § 548(c), a clause specifically designed to protect transferees, not transferors. 5 Collier on Bankruptcy ¶ 548.07. We fully appreciate the problem that appears to trouble the district court: Under the guise of a negotiated contract, a debtor anticipating bankruptcy can transfer valuable properties for consideration of lesser worth. The problem is even more acute in the case at bar, where the consideration is alleged to be wholly without value. Although we share this concern, § 548(c) is not the test that Congress has established to extirpate this form of fraud. The Bankruptcy Code looks, rather, to the “reasonable equivalency” test found at § 548(a)(l)(B)(i). In order to establish a prima facie case for avoiding a transfer as constructively fraudulent, the trustee must demonstrate that-the debtor “received less than a reasonably .equivalent value in exchange for such transfer or obligation.” Id. This provision ensures that there is no great disparity between the value of the goods exchanged. But it does so, most importantly, from the perspective of the transferor: Did the transferor “receive[ ]” enough? See Fairchild, 6 F.3d at 1127 (“the recognized test is whether the investment conferred an economic benefit on the debtor”). Compare this with the provision at § 548(c). Instead of inquiring into the possibility and extent of the debtor’s loss, it provides a means by which the unwitting trading partner can protect himself. Received property can be retained “to the extent” that the “transferee ... gave value to the debtor.” The provision looks at value from the perspective of the transferee: How much did the transferee “give”? The concern here, quite properly, is for the transferee’s side of the exchange, not the transferor’s gain. Read in combination, §§ 548(a) and (c) are perfectly complementary. The first section affords creditors a remedy for the debtor’s" }, { "docid": "8520801", "title": "", "text": "Co., Inc. 129 F.3d 382, 387 (7th Cir.1997) (“[T]he standard for ‘Reasonable equivalence should depend on all the facts of each case,’ an important element of which is fair market value.”) (citations omitted); Mellon Bank, N.A. v. Official Comm. Of Unsecured Creditors of R.M.L., Inc. (In re R.M.L., Inc.), 92 F.3d 139, 149 (3d Cir.1996) (“ ‘The touchstone is whether the transaction conferred realizable commercial value on the debtor’.”) (citations omitted); Davis v. Suderov (In re Davis), 169 B.R. 285, 299 (E.D.N.Y.1994) (“Absent unusual circumstances, [fair market value] will typically be the controlling consideration.”) (citations omitted). Applying this standard, this Court sees no clear error in the bankruptcy court’s factual findings and concurs in its judgment. The Court notes at the outset that generally whether a transfer is for “reasonably equivalent value” is largely a question of fact, as to which considerable latitude must be allowed to the bankruptcy court as the trier of the facts. Moreover, the determination of reasonably equivalent value depends on all the circumstances surrounding the transaction. See 5 Collier ¶ 548.05[l][b], at 548-35. None of the forms of value Appellants argue Adler received, singly or combined, rises to a level that may be deemed “reasonably equivalent” commercial value. First, the statute requires that the debtor must have “received” the value in question “in exchange” for the transfer or obligation at stake. An unperformed promise to pay or to deliver securities in the future, after the debtor has completed the transfer or incurred the obligation, cannot satisfy the concept of a fair exchange. The requirement that the debtor must have “received” the value in question expresses a temporal condition demanding an element of contemporaneity in the determination of whether something close to the reasonable equivalence has been exchanged. Full performance on the debt- or’s part in return for an executory promise to perform on the other party falls short of the requisite standard of equivalent worth at the time of the transaction. Under § 548(d)(2)(A), the term “value” would exclude future considerations, at least to the extent they remain unperformed. See Bailey v. Metzger, Shadyac &" }, { "docid": "4579848", "title": "", "text": "means that reasonably equivalent value under § 548 typically excludes “future considerations,” at least to the extent not actually performed. Gray v. Snyder, 704 F.2d 709, 711 (4th Cir.1983). However, “value” can include intangible or indirect benefits, even if such things are hard to quantify (such as “goodwill, corporate synergy, a business opportunity, the continuation of a business relationship, or some other intangible benefit”). See Gold v. Marquette Univ. (In re Leonard), 454 B.R. 444, 457 (Bankr. E.D.Mich.2011) (citing Lisle v. John Wiley & Sons, Inc. (In re Wilkinson), 196 Fed. Appx. 337, No. 05-5744, 2006 WL 2380887 (6th Cir. Aug. 17, 2006)). As the trustee contends, the critical time to consider is when the transfer was made. Subsequent events should not affect whether reasonable value was given, and courts typically ignore post-transfer appreciation or depreciation in value. See Allard v. Flamingo Hilton (In re Chomakos), 69 F.3d 769, 770-71 (6th Cir.1995). But the prospect of a possible future gain may have present economic value at the time of the transfer. For example, Chomakos involved a trustee’s effort to recoup the debtor’s gambling losses, and the court noted that in jurisdictions in which gambling is legal, the placing of a bet “gives rise to legally enforceable contract rights.” Id. at 771. At the time of the transfer (i.e., the placing of the bet), those contract rights have economic value. Id. As the court observed: The property is not unlike futures contracts purchased on margin. The investor in futures may win big, or his position may be wiped out, but the contractual right to a payoff if the market happens to move the right way at the right time constitutes a value reasonably equivalent to the money at risk. Id. As indicated previously, the reasonableness of the value must be determined by the facts and circumstances of the particular case. The notion that the prepayment of future legal services can never constitute reasonable value, however, must be rejected for the same reason discussed in Chomakos and Leonard. After receipt of the $50,000.00 flat fee, the defendant entered into a binding contract." }, { "docid": "8520803", "title": "", "text": "Schwarz (In re Butcher), 72 B.R. 447 (Bankr.E.D.Tenn.1987); 5 Collier ¶ 548.07[2][a], at 548-68; ¶ 548.05[1][b], at 548-39 (“The language section 548(d)(2)(A), seeming to contemplate only a present advance, or transfer of property as security for, or the discharge of, an antecedent debt, generally leaves no room for a mere executory promise to constitute value.”). (ii) The Potential Buy-In Value For the same reasons, this Court finds no clear error in the bankruptcy court’s decision not to credit Appellants’ theory claiming intrinsic value embedded in the buy-in Adler allegedly had the potential to realize. The pertinent inquiry regarding reasonably equivalent value requires a determination not only as to the sufficiency of the value given, but also as to whether the value was received in exchange for the transfer in question. The notion of a fairly contemporaneous exchange of value suggests some element of consciousness or recognition among the parties concerning the particular interest in property at issue and the value being traded. The bankruptcy court rejected Appellants’ allegations that Adler intended to conduct a buy-in. This court finds no sustainable evidence on the record to suggest that at the time of the transfer or obligation in connection with the Challenged Trades, Adler or the Appellants or even Hanover contemplated that the reasonably equivalent consideration they understood they were trading in exchange for the House Stocks was Adler’s claimed ability to pursue the Short Sellers in a buy-in. Appellants’ theory that Adler was in a position to realize value locked in the House Stocks is besides the point in a determination as to whether that supposed value reflects the actual consideration Appellants or Hanover had in mind giving, or that Adler understood it was gaining and actually received, in exchange for the transfer of securities or cash associated with the Challenged Trades. Moreover, to the extent Appellants claim that what they, or Hanover as their agent, gave Adler as value in the exchange for Adler’s obligation to deliver the Blue Chips was the worth Adler could have obtained from the House Stocks by capitalizing on its ability to effectuate a buy-in" }, { "docid": "3587108", "title": "", "text": "cites the decision of the New York Court of Appeals in People v. Kramer, 92 N.Y.2d 529, 683 N.Y.S.2d 743, 706 N.E.2d 731 (1998), in support of his argument that wagered money is not “property,” the Kramer opinion does not address whether a wager is property under New York law. The Sixth Circuit, however, has held that a bettor’s contract rights arising from the placement of a legal wager are “property.” The court stated that: Where gambling is lawful, as it was in the case at bar, the placing of a bet gives rise to legally enforceable contract rights. These contract rights constitute “property,” of course, and at the time which Collier[, the author of the treatise Collier on Bankruptcy,] identifies as “critical”—a time before anyone can know whether the bet will be successful—the property has economic value. The property is not unlike futures contracts purchased on margin. The investor in futures may win big, or his position may be wiped out, but the contractual right to a payoff if the market happens to move the right way at the right time constitutes a value reasonably equivalent to the money at risk. In re Chomakos, 69 F.3d 769, 771 (6th Cir.1995)(evaluating whether a wager was a “fraudulent conveyance” under the Bankruptcy Code or the Uniform Fraudulent Conveyance Act and holding that there was a reasonable equivalence between the economic value of a gambling bet and the value of the money wagered, such that property transfer could not be undone by bankruptcy trustee as a fraudulent conveyance). Prior to the horserace, the doping activity charged in the indictment arguably lowered the probability that any of the non-doped horses would win and that the bets placed on the non-doped horses would pay out, and thereby decreased the value of every wager placed on a non-doped horse. Thus, it is arguable that all those betting on the non-doped horses were deprived of the value of their wagers by the charged scheme to dope a horse. Accordingly, the indictment is not deficient on its face for failure to allege that property was the object" }, { "docid": "18569700", "title": "", "text": "OPINION WALTER SHAPERO, Bankruptcy Judge. Background and Basic Facts On August 2,1990, Nikki and George Cho-makos (“Debtors”) filed a voluntary Chapter 11, and on September 6, 1990, an Order for Relief under Chapter 7 was entered. This adversary proceeding was brought by the Trustee against Flamingo Hilton (“Flamingo”) under 11 U.S.C. § 548 and Mich.Comp. Laws Ann. §§ 566.11-23; Mich.Stat.Ann. 26.881-.893 to recover gambling losses sustained by the Debtors at Flamingo. The Trustee contends that each of the Debtors transferred monies to Flamingo by gambling and received less than reasonably equivalent value in exchange, at a time when the Debtors were insolvent or that by the transfers the Debtors were rendered insolvent. Flamingo contends that (a) the Trustee cannot sustain his burden of proof that transfers were made by Nikki Chomakos for less than reasonably equivalent value or less than fair consideration because he is not capable of satisfactorily proving whether Nikki Cho-makos was a net winner or loser on Flamingo’s slot machines; and (b) even if the Trustee could show that Nikki Chomakos was a net loser, the opportunity of winning more than the amount bet and entertainment value of gambling constitute reasonably equivalent value and fair consideration; and (c) even though George Chomakos appears not to have won anything, the opportunity of win-ninS more than the amount bet and ena-tainment value of gambling constitute reasonably equivalent value and fair consider-ati°n. It is also unclear to Flamingo whether the Debtors were insolvent at the time the transfers were made and/or were rendered insolvent by such transfers, The parties stipulated to the following facts in the Joint Final Pretrial Order: (1) On August 2,1990, the Debtors filed for relief under Chapter 11 of the Bankruptcy Code. (2) On September 16, 1990, an order for relief under Chapter 7 was entered. (3) The Trustee is the representative of the bankruptcy estate of the Debtors. (4) The Trustee has standing to seek recovery of fraudulent transfers pursuant to 11 U.S.C. § 548 and Mich.Comp.Laws Ann. §§ 566.11-566.23. (5) Nikki Chomakos gambled in Flamingo’s casino at its slot machines. (6) Nikki Chomakos and" }, { "docid": "14986991", "title": "", "text": "a payoff if the market happens to move the right way at the right time constitutes a value reasonably equivalent to the money at risk. The trustee’s brief takes the bankruptcy court to task for making the suggestion — a suggestion characterized by the trustee as “incredible” — that gambling is arguably “an ‘investment’ that can have economic val-ue_” Chomakos, 170 B.R. at 593. But the trustee looks at the picture only as of the time when Mr. and Mrs. Chomakos left the casino “with nothing in exchange for the monies they gambled away.” The time that counts is not the time when the bet is won or lost, but the time when the bet is placed. The “investment” may turn out badly, but unless and until it does, the contractual right to receive payment in the event that it turns out well is obviously worth something. Morris Communications illustrates the point nicely. At issue there was the valuation of the debtor’s interest in a corporation (“C-PACT”) that had only one asset — an application pending before the Federal Communications Commission for a cellular telephone license. Licenses were to be awarded at a future date under a lottery procedure. C-PACT had a chance of winning a license, but it also had a chance of losing. If the license were won, C-PACT stock would have substantial value; if the license were lost, the stock would be worthless. Before the lottery took place, the debtor sold its C-PACT stock for a price negotiated at arm’s length. Rejecting a claim that the price was too low, the court of appeals held that the debtor’s transfer of the stock was not voidable under 11 U.S.C. § 548(a)(2)(A) and (B). The games of chance in which Mr. and Mrs. Chomakos participated (slot machine games and blackjack) were not FCC lotteries, of course, and a casino gambler is not kept waiting for months to learn whether a particular bet is successful. The principle, however, is the same in both cases. Take blackjack, for instance. The trial record shows that a person who bets $2 at the" }, { "docid": "14986992", "title": "", "text": "pending before the Federal Communications Commission for a cellular telephone license. Licenses were to be awarded at a future date under a lottery procedure. C-PACT had a chance of winning a license, but it also had a chance of losing. If the license were won, C-PACT stock would have substantial value; if the license were lost, the stock would be worthless. Before the lottery took place, the debtor sold its C-PACT stock for a price negotiated at arm’s length. Rejecting a claim that the price was too low, the court of appeals held that the debtor’s transfer of the stock was not voidable under 11 U.S.C. § 548(a)(2)(A) and (B). The games of chance in which Mr. and Mrs. Chomakos participated (slot machine games and blackjack) were not FCC lotteries, of course, and a casino gambler is not kept waiting for months to learn whether a particular bet is successful. The principle, however, is the same in both cases. Take blackjack, for instance. The trial record shows that a person who bets $2 at the blackjack table where Mr. Chomakos did his gambling will win $3 if he receives a black jack. At the point in time when Mr. Choma-kos placed a $2 bet, his chance of winning $3 had an economic value no less real in nature than the economic value of C-PACT’s chance of winning a cellular telephone license. The existence of an economic value may be immaterial, however, if the dollar value of the gambler’s chance of winning — augmented, perhaps, by an element of entertainment value — is not “reasonably equivalent” to the amount of money wagered. We believe that the evidence presented by Flamingo showed a reasonable equivalency here, and the trustee presented no evidence to the contrary. The casino’s evidence showed, among other things, that the gambling business in Nevada is closely regulated by the state; that this regulation extends to payout ratios for both slot machines and table games; that casinos depend on repeat business, which is encouraged by customers winning; and that competition among casinos is intense. The evidence further showed that" }, { "docid": "3587107", "title": "", "text": "from the fact that monetary harm to those betting on the non-doped horses was the necessary consequence of the success of their scheme. The indictment therefore charges that the defendants conspired to devise a “scheme to defraud,” within the meaning of the wire fraud statute. Whether this scheme and the defendants’ intent to harm those betting on the non-doped horses can be proved at trial cannot be determined from the face of the indictment. B. Deprivation of Money or Property The wire fraud statute also requires that money or property be the object of the defendant’s “scheme to defraud.” Fountain v. United States, 357 F.3d 250, 255 (2d Cir.2004). Martin argues that the indictment does not charge conspiracy to commit wire fraud because the alleged “scheme to defraud” did not have money or property as its object. In this case, the only commodities that are alleged to have been the objects of the fraud and that could have been diminished in value by the fraud are the wagers placed on the non-doped horses. Although Martin cites the decision of the New York Court of Appeals in People v. Kramer, 92 N.Y.2d 529, 683 N.Y.S.2d 743, 706 N.E.2d 731 (1998), in support of his argument that wagered money is not “property,” the Kramer opinion does not address whether a wager is property under New York law. The Sixth Circuit, however, has held that a bettor’s contract rights arising from the placement of a legal wager are “property.” The court stated that: Where gambling is lawful, as it was in the case at bar, the placing of a bet gives rise to legally enforceable contract rights. These contract rights constitute “property,” of course, and at the time which Collier[, the author of the treatise Collier on Bankruptcy,] identifies as “critical”—a time before anyone can know whether the bet will be successful—the property has economic value. The property is not unlike futures contracts purchased on margin. The investor in futures may win big, or his position may be wiped out, but the contractual right to a payoff if the market happens to move" }, { "docid": "14986996", "title": "", "text": "donors in the church contribution cases. A debtor who contributes to a church may receive spiritual and social returns of great value to the debtor, but such returns are not likely to be of much benefit to creditors. A debtor who places a bet in a fair and lawful game of chance, on the other hand, may receive hard cash in return. On one of the days when Mrs. Chomakos played Flamingo’s slot machines, for example, she had winnings of $5,000. Suppose she had won a $5,000 jackpot at the start of her visit to the casino and had stopped playing as soon as she won; the return on her “investment” would obviously have benefited her creditors. It is true that gambling odds always favor the house, and that Mrs. Chomakos would have been almost certain to lose her $5,000 jackpot — and more — -if she continued playing long enough. On the record before us, however, we cannot say that the existence of a modest house advantage means that unsuccessful bets are fraudulent conveyances. The trustee argues that Mr. and Mrs. Cho-makos did not occupy a bargaining position equal to Flamingo’s, and the gambling transactions were therefore not at arm’s length. But this argument overlooks the governmental and business forces by which Flamingo was constrained. Flamingo was subject to state regulations designed to create a reasonably level playing field, and Flamingo had to compete with nearby casinos to which Mr. and Mrs. Chomakos and all other customers were free to take their business. Without reasonably generous payouts and competitive odds, Flamingo could not hope to attract the repeat customers on whom, according to the evidence, Flamingo and other casino operators depend for survival. “[T]he quid pro quo,” as the bankruptcy court observed, “was established in the context of a state regulated business, existing in an open competitive marketplace responding and responsive to desires of legitimate tourists pursuing and engaging in a legal and legitimate pursuit.” Chomakos, 170 B.R. at 592. As far as federal law is concerned, moreover, we are not persuaded that we ought to evaluate the transactions" } ]

[ { "docid": "23079779", "title": "", "text": "the commitment order “to keep” the prisoner means keep him in the Los Angeles jail until time to take the train for McNeil Island in the state of Washington. We cannot shut our eyes to the fact that there must have been an interval of time when the commitment order necessarily required him to be “kept” where the marshal then held him. 18 U.S.C.A. § 709a. Trant v. U. S. (C.C.A.7, decided June 19, 1937) 90 F.(2d) 718. The reason for this, as appears from the warden’s pleading in the present case, was that on May 14, 1930, an information charging forgery had been filed against appellant in the municipal court of the state of California. On June 19, 1930 (after he had been sentenced and committed by the United States District Court), he pleaded not guilty to this charge. On July 31, 1930, he changed his plea to one of guilty and was sentenced to a term of from one to fourteen years in the California State Prison. Having been released by the United States marshal to the custody of the officers of the state, the appellant served time in state prisons until June 16, 1935, at which time he was released on parole and was given over to the custody of the United States marshal who incarcerated him in McNeil Island Penitentiary, where he still remains, ostensibly serving his time under the federal court sentences. The question thus presented is a very simple one: When a defendant is sentenced to prison and the marshal having him in custody is ordered to deliver him to the prison “forthwith” and fails to do so until five years later, is the prisoner’s service of his sentence deemed to begin at the time of his sentence and the commitment and cus tody thereunder by the marshal, or at the date of the tardy actual commitment to prison ? To state the question is to answer it. The least to which a prisoner is entitled is the execution of the sentence of the court to whose judgment he is duly subject. If a" } ]

[ { "docid": "11888564", "title": "", "text": "PER CURIAM. Appellant appeals from a denial of his petition for a writ of habeas corpus. He was sentenced in 1953 to a term of ten years in the District of Nebraska for bank robbery, and commenced the serving of his sentence. On April 7, 1960, he was released from the United States Penitentiary at Leavenworth, Kansas, pursuant to 18 U.S.C. § 4163. At the time of his release he signed an instrument agreeing to the statutory conditions of mandatory release and parole. On July 5, 1960, he committed a burglary in the State of Nebraska and after a sentence in the State Court was confined from August 25, 1960, to May 21, 1965, in the Nebraska State Penitentiary. After the commission of thé state offense and on July 25, 1960, the United States Board of Parole issued a violator’s warrant for appellant, which warrant was served upon him on May 21, 1965, at the time of his release from the state penitentiary. He was taken into custody by the Parole Board at that time, returned to Leavenworth and a revocation hearing was held on August 16, 1965, when his mandatory release was revoked. He is now serving the remainder of the sentence imposed for bank robbery. Appellant first contends, under the provisions of 18 U.S.C. § 4163, he was entitled to an unconditional release after serving his full term less the good time allowances. The contention is without merit because that statute must be construed in conjunction with the statute following it, Section 4164. So construed, a prisoner released as a mandatory releasee is subject to the same conditions of release as a parolee under 18 U.S.C. § 4203. This construction disposes of the second contention that the release agreement was signed by appellant only because he was coerced. Congress has fixed the conditions attached to a mandatory release and those conditions are not effected by the releasee signing or failing to sign a release agreement. Appellant also urges that the serving of a violator’s warrant upon him subsequent to the expiration of his parole period voided the warrant." }, { "docid": "21012714", "title": "", "text": "warrant was-issued for petitioner’s apprehension for federal probation violation. On October 1, 1946, petitioner was convicted, in a New York court, of a New York offense and of violation of h>is New York parole, and again imprisoned. On October 23, 1946, petitioner was-■brought here from the New York City-Penitentiary by a writ of Habeas Corpus-ad Prosequendum and arraigned for violation of federal probation. He refused the assistance of counsel which was proffered by the court and admitted the violation. I sentenced him to 18 months, service of sentence to begin upon release from the-custody of New York. On November 26, 1946, I vacated petitioner’s sentence and imposed a sentence of one year and one day on each count of each indictment, to run concurrently and to begin upon his release from custody of the New York authorities. On May 27, 1947, petitioner was released on parole by the New York authorities, and arrested on a bench warrant by the federal authorities to be imprisoned in the Federal Correctional Institution at Danbury, Conn., there to serve the federal sentence. On January 19, 1948, petitioner was released, on parole, from Danbury. His New York parole was still running. On March 20, 1948, petitioner was incarcerated by New York after conviction of a new offense, followed by a one year sentence, and both New York and federal parole violation warrants were lodged against him. On March 20, 1949 petitioner continued to be confined by New York to serve out his term for violation of his New York parole. On April 25, 1949 petitioner expects to be released by the New York authorities and immediately apprehended by federal authorities for federal parole violation. The statute, 28 U.S.C.A. § 2255, does not require the appearance of the petitioner be fore the court. His papers are very full and present no issue of fact. No useful purpose will be served by his personal appearance. Petitioner first claims he was deprived of his constitutional right to counsel on October 23, 1946, when I revoked his probation and sentenced him to 18 months. This claim is groundless. Petitioner" }, { "docid": "21012713", "title": "", "text": "a bank located outside the District of Columbia. At the time these indictments were filed, petitioner was at large Under a sentence of probation upon conviction by a New York court on a similar offiense. In June, 1944, removal of petitioner to the District of Columbia, for trial on the indictments pending there, was denied by a United States Commissioner. Petitioner remained at large as a New York probationer. In March, 1945, petitioner was' sentenced by a New York court to an indeterminate term of three years for violation of his New York probation, and imprisoned. On May 7, 1946, petitioner was paroled •by the state authorities. On May 28, 1946, petitioner’s consent was filed to plead, in the Southern District of New York, to the District of Columbia indictments. On May 31, 1946, petitioner pleaded guilty in this court to all counts of the indictments, and was sentenced to a prison term of 18 months, execution suspended, 22 months’ probation, to run concurrently with his New York parole. On July 31, 1946, a bench warrant was-issued for petitioner’s apprehension for federal probation violation. On October 1, 1946, petitioner was convicted, in a New York court, of a New York offense and of violation of h>is New York parole, and again imprisoned. On October 23, 1946, petitioner was-■brought here from the New York City-Penitentiary by a writ of Habeas Corpus-ad Prosequendum and arraigned for violation of federal probation. He refused the assistance of counsel which was proffered by the court and admitted the violation. I sentenced him to 18 months, service of sentence to begin upon release from the-custody of New York. On November 26, 1946, I vacated petitioner’s sentence and imposed a sentence of one year and one day on each count of each indictment, to run concurrently and to begin upon his release from custody of the New York authorities. On May 27, 1947, petitioner was released on parole by the New York authorities, and arrested on a bench warrant by the federal authorities to be imprisoned in the Federal Correctional Institution at Danbury, Conn., there to serve" }, { "docid": "19060454", "title": "", "text": "PER CURIAM. This is an appeal from an order dismissing a petition for habeas corpus without a hearing. The petition, apparently prepared without the assistance of counsel, is voluminous and most of the matters complained of are not material in a habeas corpus proceeding. The allegations establish that while the petitioner was serving a sentence in the United States Penitentiary at Leavenworth, Kansas he was released under the provisions of the Conditional Release Statutes; that a short time thereafter he was arrested in Toledo, Ohio, and charged with the offense of operating a refund racket, upon trial was convicted of attempted shoplifting and sentenced to serve 30 days in jail; that after the 30-day sentence had been served, he was held by local authorities at the request of the Federal Probation Officers; and that thereafter a warrant was issued by the Federal Parole Board, his conditional release was cancelled, and he was returned to Leavenworth to serve the remainder of his tex*m. The essence of the petitioner’s contentions is that the Parole Board abused its discretion in revoking the conditional release, and that the petitioner was entitled to a hearing before a Federal District Court to determine whether the revocation was justified. A conditional release of a federal prisoner is in the nature of a privilege granted by Congress. A prisoner who faithfully observes the rules is entitled to a deduction from the term of his sentence and to be released at the expiration of his sentence less the good time which he has earned. 18 U.S.C.A. §§ 4161, 4163. After such release the prisoner is deemed to be on parole until the expiration of the maximum term or terms for which he was sentenced. 18 U.S.C.A. § 4164. If the terms of the parole or conditional release are violated, the Parole Board has authority to revoke the parole or release and to issue a warrant for the retaking of the parolee. Upon revocation, the parolee is returned to the custody of the Attorney General to serve his unexpired term which begins to run from the date of his return." }, { "docid": "421487", "title": "", "text": "HUXMAN, Circuit Judge. This ■ is an appeal from the judgment of the trial court, discharging a writ of habeas corpus and remanding appellant to the custody of Walter Ai Hunter, Warden of the Federal Penitentiary at Leavenworth, Kansas. The facts are these. On June 7, ■1946, appellant was committed to serve a three year sentence for violation of the Dyer Act [1948 Revised Criminal Code, 18 U.S.C.A. § 2311 et seq.]. The maximum expiration date of the sentence, without good time, was June 6, 1949. Appellant earned 304 days of good time, which made him eligible for conditional release and he was released on August 6, 1948. On August 22, 1948, appellant was committed to the United States Penitentiary for three years on another offense. The maximum expiration date under that sentence was August 21, 1952. By virtue of good time earned, he became eligible for release under that sentence October 13, 1951. A warrant for an alleged violation of his conditional release under the first sentence Was issued by the United States Board of Parole February 24,1949. The warrant was served on him on October 13, 1951, the date on which he was conditionally released from his second sentence. On November 13, 1951, the Board, pursuant to a hearing, issued a certificate of revocation, revoked his parole and remanded him to the custody of the warden to serve the remainder of the first sentence of 304 days less good time earned thereafter. Appellant’s claim to a release is based upon 18 U.S.C.A. § 4164, as amended June 29, 1951, which reads as follows: “A prisoner having served his term or terms less good-time deductions shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days.” Appellant’s contention is that since there remained less than 180 days of his original sentence when the parole violator’s warrant was issued he could not be returned to the institution. Original Section 4164 was amended by the Act of June 29, 1951, by adding" }, { "docid": "17396801", "title": "", "text": "LINDLEY, Circuit Judge. The relator appeals from an order denying a writ of habeas corpus, because of absence of any federal question. Upon issuance of a certificate of probable cause, this appeal followed. On January 24, 1938 the relator, residing in Chicago, was arrested by state authorities in connection with a number of purse snatchings. He was convicted on one of the charges and received an indeterminate sentence of from one to twenty years. As he was a federal conditional release parolee at that time, the Federal authorities lodged a parole violator’s warrant against him. On October 27, 1944, the Illinois State Penitentiary Parole Officer notified the Federal Parole supervisor in Washington that the prisoner had been paroled, but was being held pending instructions with reference to the federal detainer warrant. One week later Sieg was delivered to a deputy United States Marshal who returned him to the federal prison at Chillicothe, Ohio, where he served the remainder of his federal sentence. Upon his release, and, apparently, with the permission of the Illinois authorities, petitioner traveled to Texas, where, in 1945, he was convicted of the crime of robbery and sentenced to 20 years in a penal institution. After completing nine and one-half years of that sentence, he received a conditional pardon and was released to the Illinois representatives in response to an Illinois Parole Violator’s warrant which had been filed. Upon his return to Illinois, he was declared a parole violator and August 13, 1960 fixed by the Illinois Parole Board as the date when his case would next be eligible for reconsideration. Within a year after the prisoner had been returned to Illinois, he filed a petition for a writ of habeas corpus in the Circuit Court of Will County, which was dismissed, apparently without a hearing. Although under Illinois law petitioner could not appeal from that decision to the Illinois Supreme Court, he petitioned the United States Supreme Court for a writ of certiorari, which was denied May 28, 1956. Sieg v. Ragen, 351 U.S. 957, 76 S.Ct. 858, 100 L.Ed. 1479. The relator does not question" }, { "docid": "7394257", "title": "", "text": "FOSTER, Circuit Judge. These eight cases were argued and submitted together, present the same questions for decision, and may be conveniently disposed of by one opinion. The material facts common to all the cases are these. Appellees, while serving sentences in federal prisons, were released on parole or by reduction of their sentences for good conduct. Before the maximum terms of their sentences had expired they committed federal offenses for which they were convicted and sentenced to imprisonment in the Atlanta penitentiary. The judgments were silent as to the time these second sentences were to begin. In each case, after the prisoner was incarcerated under the second sentence, a member of the Parole Board issued a warrant, directed to any federal officer authorized to serve criminal processes within the United States, reciting that satisfactory evidence had been presented to him that (the person named) had violated the condition of his release, was deemed to be a fugitive from justice, and' commanding that the warrant be executed by taking the prisoner, wherever found in the United States, and returning him safely to the institution hereinafter designated. However, the warrant did not designate the institution. The warrants were sent to the warden of the Atlanta penitentiary with a letter instructing him to place the warrant as a detainer and to take the prisoner named into custody on the warrant at the expiration of his present sentence. The letter further instructed that the case should be listed for a hearing on the violation charge only after (the person named) is in custody on the warrant. The warrants were served and appellees were detained as instructed. Appellees were released on habeas corpus after each had served more time in the penitentiary after his return thereto than the remainder of his first sentence, without deducting any allowance for good conduct or the time he was at large on parole or conditional release before being returned to serve the second sentence. There are some slight variations of the facts in each case. Illustrating these differences in the broadest way we may refer to the facts more" }, { "docid": "9609531", "title": "", "text": "PER CURIAM. Appellant Jefferson, by this habeas corpus proceeding, seeks his release from the United States Penitentiary at Leavenworth, Kansas, upon the ground that the sentence under which he is being confined has been served in full. He appeals from an order dismissing his petition without a hearing. The pleadings disclose that on May 6, 1963, Jefferson was granted a mandatory release after serving 621 days of his total sentences of six years. On November 20, 1963, Jefferson was arrested in Wyoming by federal authorities and charged with violation of the Dyer Act. 18 U.S.C. § 2312. On December 5, 1963, the U. S. Board of Parole issued a warrant for the arrest of Jefferson as a parole violator and then forwarded it to the U. S. Marshal at Cheyenne, Wyoming, where he was being held in custody. During a discussion relating to bail, Jefferson was advised of the existence of the warrant and was permitted to read it. _ On January 21, 1964, a three year sentence was imposed by the U. S. District Court for the District of Wyoming, and the parole violator’s warrant was returned to the U. S. Board of Parole where it remained until the Wyoming sentence had been served. The parole violator’s warrant was then served, and Jefferson was returned to Leavenworth for the completion of the original sentences there. It is contended that the parole violator’s warrant was executed by federal officers in Wyoming, thus constituting a return to the custody of the Attorney General of the United States as required by 18 U.S.C. § 4205, and that appellant was consequently entitled to credit on the original sentences from the date that the warrant was executed. Ordinarily, the mere existence of a parole violator’s warrant does not amount to an execution of the same. We think it clear that there was no execution of the parole violator’s warrant in Wyoming and that he was not then taken into custody under that warrant. He continued to be held on the Wyoming charges and the sentence imposed upon his plea of guilty. See, Teague v." }, { "docid": "13103906", "title": "", "text": "PHILLIPS, Chief Judge. This is an appeal by Looney, Warden of the United States Penitentiary, at Leavenworth, Kansas, from an order releasing Lenz from custody of the Warden on a writ of habeas corpus. Lenz was sentenced to confinement for a period of 4 years and 9 months, from October 15, 1945. He was released on parole June 28, 1947, with 1112 days of such sentence unserved. While at large as a parolee, Lenz was convicted for another Federal offense and sentenced to a term of 4 years from April 19, 1948. A warrant for the arrest of Lenz as a parole violator was issued on March 2, 1948, and executed on March 7, 1950, on order of the United States Parole Board, to permit concurrent service of the 1112 days remaining of the 4-years and 9-months sentence with the 4-year sentence. After serving 287 days of the 1112 days, Lenz, on December 21, 1950, was released on re-parole under the 4-years and 9-months sentence. A total of 825 days of the 4-years and 9-months sentence then remained unserved. Lenz, at the time the re-parole was granted, signed a certificate made a part of it, by which he agreed to the terms and conditions thereof. While at large under the certificate of re-parole, Lenz was convicted of another Federal offense, and on February 4,1952, was sentenced to serve 2 years and 2 days. During the service of that sentence, Lenz earned 144 days of statutory good time, 28 days of which were for feited, and he, therefore, became eligible for conditional release on October 12, 1953. While he was serving the 2-years and 2-days sentence, and on March 7, 1952, a warrant for his retaking was issued. The 825 days (1112 days minus 287 days) was further reduced by 169 days, inasmuch as Lenz concurrently served as a parole violator from April 27, 1953, to October 12, 1953. Since the latter date he has been held only as a parole violator under the order of April 27, 1953. 18 U.S.C.A. § 4205 provides: “A warrant for the retaking of any" }, { "docid": "13574190", "title": "", "text": "PER CURIAM. On January 24, 1958, appellant completed a term of imprisonment in the Oklahoma State Penitentiary and was immediately taken into custody by the United States Marshal under a conditional release violator’s warrant issued by the United States Board of Parole. By petition for writ of habeas corpus to the District Court for the Eastern District of Oklahoma he alleges his detention to be unlawful upon claim that the original federal sentence which was imposed by court martial and which premises the validity of the warrant had been completely served. Appellant was released from the United States Penitentiary at Leavenworth on February 26, 1956, after serving his complete military sentence less 761 days statutory good time and 101 days industrial credit time. His contention that his release at that time was unconditional is completely negatived by 18 U.S.C.A. § 4164: “A prisoner having served his term or terms less good-time deductions shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days.” Appellant also contends, by way of supplement to his original petition, that industrial credit time cannot be lost by violation of conditional release. Even if such contention had merit it would neither lead to an invalidation of the warrant nor to petitioner’s immediate release from custody. The contention is not, therefore, a proper subject for consideration by habeas corpus at this time. Dickenson v. Davis, 10 Cir., 245 F.2d 317; Sturm v. McGrath, 10 Cir., 177 F.2d 472; Benjamin v. Hunter, 10 Cir., 176 F.2d 269. The trial court properly dismissed the petition and its judgment is affirmed." }, { "docid": "23409868", "title": "", "text": "was arrested on August 5, 1964, as a state parole violator, and returned to the Arkansas State Penitentiary where his state parole was formally revoked on August 12, 1964. On August 13, 1964, the Federal Parole Board issued a warrant charging Hash as a parole violator. It instructed the United States Marshal to place the warrant as a detainer with officials of the Arkansas State Penitentiary and to “assume custody if and when released by local authorities.” On June 10, 1966, Hash was released from the state penitentiary and turned over to the United States Marshal for for the Eastern District of Arkansas. The marshal conveyed, him to the Federal Correctional Institution at Texarkana, Texas, where he was given a hearing by the Federal Parole Board on June 24, 1966. It revoked his federal parole but determined that he should be re-paroled effective August 17, 1966. On October 25, 1966, a re-parole violator warrant for the arrest of Hash was issued by the Federal Parole Board. It was served on him November 17, 1966. He was immediately confined by the United States Marshal in Pulaski County Jail. On December 21, 1966, while so confined, Hash petitioned the United States District Court for the Eastern District of Arkansas for a writ of habeas corpus. He alleged that he was being unlawfully confined by federal authorities as he had completed the service of his original three-year sentence during his second confinement in the Arkansas State Penitentiary from August of 1964 to June of 1966. The District Court, after a hearing at which Hash was represented by counsel, denied his request for a writ of habeas corpus and remanded him for confinement to federal authorities. It held that his reconfinement in the Arkansas peni tentiary did not amount to his return to federal custody under § 4205, 18 U.S. C.A., and that such custody was not reacquired until the federal parole violator warrant was executed on June 10, 1966. Hash v. Henderson, 262 F.Supp. 1016 (E.D. Ark. 1967). We agree. Under the terms of § 4205, custody of a prisoner who has violated" }, { "docid": "23409869", "title": "", "text": "was immediately confined by the United States Marshal in Pulaski County Jail. On December 21, 1966, while so confined, Hash petitioned the United States District Court for the Eastern District of Arkansas for a writ of habeas corpus. He alleged that he was being unlawfully confined by federal authorities as he had completed the service of his original three-year sentence during his second confinement in the Arkansas State Penitentiary from August of 1964 to June of 1966. The District Court, after a hearing at which Hash was represented by counsel, denied his request for a writ of habeas corpus and remanded him for confinement to federal authorities. It held that his reconfinement in the Arkansas peni tentiary did not amount to his return to federal custody under § 4205, 18 U.S. C.A., and that such custody was not reacquired until the federal parole violator warrant was executed on June 10, 1966. Hash v. Henderson, 262 F.Supp. 1016 (E.D. Ark. 1967). We agree. Under the terms of § 4205, custody of a prisoner who has violated his parole can only be obtained by the execution of a parole violator warrant issued by the Board of Parole or a member thereof. The board is not obligated to instruct the United States Marshal to serve the warrant at the time of issuance, Maples v. United States, 360 F. 2d 155 (8th Cir. 1966); Avellino v. United States, 330 F.2d 490 (2d Cir. 1964); Melton v. Taylor, 276 F.2d 913 (10th Cir. 1960), nor is it unreasonable for it to delay taking custody of a prisoner until after he is released from a state penitentiary. Teague v. Looney, 268 F.2d 506 (10th Cir. 1959); Nave v. Bell, 180 F.2d 198 (6th Cir. 1950); Stockton v. Massey, 34 F.2d 96 (4th Cir. 1929). Cf., Saylor v. United States Board of Parole, 120 U.S.App.D.C. 206, 345 F.2d 100 (1965). The appellant also contends that time served in the state prison after being re-confined as a state parole violator should count as time served under his federal sentence. We do not agree. It is established that if" }, { "docid": "2948933", "title": "", "text": "TUTTLE, Chief Judge: Appellant was convicted and sentenced on May 15, 1958, by the United States District Court for the Western District of North Carolina to serve a total of five years imprisonment for breaking and entering a Post Office in violation of 18 U.S.C.A. § 2115. After serving his five year sentence less good time credits, he was released from federal prison, pursuant to 18 U.S.C.A. § 4163, on September 25, 1961. Some ten months later, on July 29, 1962, appellant was arrested and charged with a state criminal offense in Tennessee. When he reported to his federal parole officer on October 1, 1962, he was shown a warrant, issued by the United States Board of Parole, charging him with violating the conditions of his release on the federal sentence of May 15, 1958. On October 29, 1962, he was tried and convicted on the state charge, and sentenced to five years imprisonment in the Tennessee State Penitentiary. Upon his release from state prison on December 29, 1965, he was returned to federal custody under the warrant issued by the United States Board of Parole in 1962, and incarcerated in the United States Penitentiary at Atlanta, Georgia, to complete service of his 1958 federal .sentence. On June 14, 1966, appellant petitioned the United States District Court for the Northern District of Georgia for a writ of habeas corpus, asserting vigorously (albeit mistakenly) that under the rule of Birch v. Anderson, 123 U.S.App.D.C. 153, 358 F.2d 520 (1965), the Parole Board lost its power over him by failing to execute its warrant before November 15, 1962 — the date upon which the terminal 180 day period of his full five year sentence of May 15, 1958, would have begun. In a memorandum opinion, the District Court denied appellant’s petition, but granted his motion for leave to appeal in forma pauperis. The case is submitted on the record and the briefs of both parties, without oral argument. At the outset, we point out that the authority of the Board of Parole to issue the warrant here involved is clear. At the" }, { "docid": "4470298", "title": "", "text": "SPARKS, Circuit Judge. This appeal is from an order denying a petition for habeas corpus. It raises the question whether requiring a prisoner, released for good conduct, who has subsequently violated a parole regulation, to serve the portion of his term that was unexpired at the time of his release, without credit for the period between his release and the parole violation, is to extend his sentence and increase his punishment in violation of the Fifth Amendment of the Constitution of the United States. There is no dispute as to the facts in this case, and the parties filed an agreed statement. According to that statement, appellant was sentenced to four years’ imprisonment on February 27, 1939, and started serving sentence on that date. On March 27, 1942, on account of his good conduct credit, granted by statute (IS U. S.C.A. § 710), he was conditionally released from the custody of the warden of the penitentiary in which he had been confined, subject to all provisions of law relating to the parole of United States prisoners until expiration of the maximum term specified'in the sentence, 18 U.S.C.A. § 716b. On November 4, 1942, he pleaded guilty to an affidavit filed in a city court in Indiana alleging that he had been found intoxicated in a public place, and that he had unlawfully driven an automobile while intoxicated. Judgment was entered against him for both offenses. On December 1, 1942, a member of the Parole Board issued a warrant reciting that he had violated the conditions of his release, and commanding that he be taken into custody. Pursuant to this warrant he was taken into custody on December 12, and returned to the penitentiary at Terre Haute on December 26. Upon recommitment, the Parole Board ordered that he serve the unexpired portion of his term of imprisonment, beginning with December 12, 1942. On March 2, 1943, appellant filed petition for writ of habeas corpus, alleging that he was being illegally detained for the reasons that his four year term expired on February 26, 1943, and his detention thereafter violated his constitutional" }, { "docid": "2948934", "title": "", "text": "under the warrant issued by the United States Board of Parole in 1962, and incarcerated in the United States Penitentiary at Atlanta, Georgia, to complete service of his 1958 federal .sentence. On June 14, 1966, appellant petitioned the United States District Court for the Northern District of Georgia for a writ of habeas corpus, asserting vigorously (albeit mistakenly) that under the rule of Birch v. Anderson, 123 U.S.App.D.C. 153, 358 F.2d 520 (1965), the Parole Board lost its power over him by failing to execute its warrant before November 15, 1962 — the date upon which the terminal 180 day period of his full five year sentence of May 15, 1958, would have begun. In a memorandum opinion, the District Court denied appellant’s petition, but granted his motion for leave to appeal in forma pauperis. The case is submitted on the record and the briefs of both parties, without oral argument. At the outset, we point out that the authority of the Board of Parole to issue the warrant here involved is clear. At the time of his release from federal, prison on September 25, 1961, appellant had completed service of his original five year federal sentence less good time credits, and was thus a mandatory release under 18 U.S.C.A. § 4163. As such, he was subject to the provisions of 18 U.S.C.A. § 4164, which states: “A prisoner having served his term or terms less good-time deductions shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days.” (Emphasis added.) Appellant’s “maximum term less one hundred and eighty days” under the five year sentence of May 15, 1958, did not expire until November 15, 1962. Consequently, appellant occupied the status of a parolee when the Parole Board, prior to October 1, 1962, exercised the authority granted to it by 18 U.S.C.A. § 4205, which provides: “A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or" }, { "docid": "12842331", "title": "", "text": "and arraigned before the United States Commissioner in Cleveland for violating 18 U.S.C. § 2314 by transporting counterfeit securities. Fourteen days after his arrest, a mandatory release violator’s warrant was issued by the United States Board of Parole, commanding that the warrant be executed by taking petitioner into custody “until he has been afforded a preliminary interview with a person designated by the Board of Parole and until authorized to transport him as ordered.” The reason given for the issuance of the warrant was that “reliable information has been presented to the undersigned Member of this Board that said prisoner named in this warrant has violated the conditions of release.” According to its face, the warrant was received by the United States Marshal in Cleveland on December 15, 1965. Early in January 1966, petitioner was released on bond for the November 1965 offense. He remained under the supervision of the local Parole Office until March 31, 1966, when a two-count indictment was returned and the bond raised and he was placed in the custody of the United States Marshal and detained in the Cuyahoga County jail in Cleveland. On October 31, 1966, petitioner pled guilty to violating 18 U.S.C. § 2314 and the general conspiracy provision (18 U.S.C. § 371), was sentenced to three-year concurrent sentences on these two counts and commenced serving those sentences. One day later, the district court found, the mandatory release violator’s warrant was returned to the United States Board of Parole unexecut-ed. The court also found that on February 6, 1967, the warrant was lodged as a de-tainer at the Federal Penitentiary at Terre Haute, Indiana, where petitioner was serving the 1966 sentences. According to his briefs in this Court, this was the first time that petitioner was informed that such a warrant had issued. The warrant was executed on April 21, 1968, when petitioner’s 1966 sentences expired. Petitioner thereupon commenced serving a new term of 1011 days under the 1959 sentences. On June 4, 1968, after the customary hearing, his 1964 parole was revoked. The district court held that where, as here, a mandatory" }, { "docid": "3113877", "title": "", "text": "should be immediately released from custody. II The petitioner has a lengthy and complicated history as a federal prisoner. The petitioner was convicted of mail fraud and conspiracy in the United States District Court for the Northern District of Georgia and on November 12,1976, was sentenced to seven years (84 months) imprisonment, with presentence credit from June 8, 1976. On April 16, 1979, the petitioner was paroled after serving 35 months and began serving a term of 48 months on parole, which was to expire on June 9,1983. On February 20, 1981, the Commission issued a parole violator warrant against petitioner. The warrant was lodged as a detain-er against petitioner, who was arrested the next day and held on state charges. The parole violator warrant was supplemented on June 21,1982. On June 6,1983, the petitioner was sentenced to ten years imprisonment for the state offenses. Following a parole revocation hearing on October 9, 1984, the Commission, due to the state court conviction, revoked petitioner’s parole and ordered that none of the time petitioner had spent on parole, i.e., “street time,” would be credited toward satisfying his underlying federal sentence. The Commission’s actions were reflected in a Notice of Action dated August 14, 1986, which stated: “Parole effective September 1,1986 after the service of 66 months to the concurrent state sentence.” The petitioner was released from state custody on October 2, 1986, after signing a Certificate of Parole providing that he was to remain under the Commission’s supervision until October 23, 1990. Once released on parole, the petitioner was again arrested on state charges and on March 14, 1988, peti tioner was sentenced to 48 months in state prison. The Commission issued a parole violator warrant against petitioner on June 15, 1987, and the warrant was lodged as a detainer against petitioner while he was in state custody. The petitioner was released from state custody on July 12, 1989, at which time he was taken into federal custody based on the 1987 parole violator warrant. On December 28, 1987, the petitioner filed a writ of habeas corpus in this Court challenging" }, { "docid": "6708186", "title": "", "text": "PER CURIAM. Appeal from denial of federal prisoner habeas corpus petition without hearing by the United States District Court for the District of Kansas. In November 1961, Nash received a seven year sentence for a federal narcotics violation to Leavenworth prison. He was mandatorily released about August 12, 1966, and while on parole, about November 12, 1967, he was arrested and received a five year sentence imposed upon his plea of guilty to a bank burglary charge. Prior to such sentence the United States Board of Parole had issued a mandatory release violator’s warrant for violation of his 1966 release, but did not, and has not, executed the warrant. Appellant argues that this withholding of execution of the warrant has precluded him from serving the balance of the earlier sentence until he has completed the bank burglary sentence. Thus he argues that the judge on the burglary charge could not have had his sentence run concurrently with the balance of his narcotics sentence. The federal district court held that the violator’s warrant was timely issued, and that “* * * time spent while incarcerated under the new charge does not affect the prisoner’s antecedent obligation to complete his existing sentences when a parole has been violated”; that «* * * for g00(j reason shown, a warrant issued within the terms of parole (or mandatory release) may be held in abeyance and served even after the expiration of the maximum term of a prisoner’s sentence,” and that Nash’s intervening conviction and sentence in 1967 are such “good reasons” for holding in abeyance execution of the warrant until he has completed the intervening sentence. Of course the old sentence of appellant does not commence again until he is taken into custody under the parole violator’s warrant. 18 U.S.C. § 4205. There is no question that the issuance of the mandatory release violator’s warrant on November 28, 1967, was within the time prescribed by 18 U.S.C. § 4205, as the trial court held. Taylor v. Simpson, 292 F.2d 698 (10th Cir. 1961). The only substantial question in this appeal concerns execution of the" }, { "docid": "503027", "title": "", "text": "LINDLEY, Circuit Judge. Petitioner, on March 19, 1942, began serving a two-year sentence imposed by the U. S. District Court. On April 28, 1943, while still in custody under that sentence, he was again brought before the same court, found guilty on another charge, and sentenced to a term of five years imprisonment, the second sentence to commence upon termination of the first. After having served almost five years, petitioner was conditionally released from custody on February 17, 1947. Subsequently, on November 22, 1948, the Board of Parole issued a parole warrant charging him with violation of the terms of his conditional release and he was taken into custody by respondent acting under that warrant. His petition for a writ of habeas corpus then filed alleged that, under the applicable statute, 18 U.S.C.A. § 710 [now § 4161], he had earned 144 days “good time” on his first sentence; that, but for the imposition of the second sentence, this “good time” deduction would have made him eligible for release on October 24, 1943; that, consequently, his second sentence began to run on that date and expired five years later, on October 24, 1948, some 10 days prior to the issuance of the parole warrant, and that the parole warrant, having been issued after expiration of his sentence, was void and his detention thereunder without authority in law. The District Court issued a writ of habeas corpus returnable November 23, 1948; respondent filed a motion to quash the writ and dismiss the petition, alleging that petitioner had erroneously computed his “good time” allowance on the basis of the two-year sentence, whereas it should have been computed on the aggregate of the two-year and five-year sentences; that petitioner, although released for good conduct, had continued on parole for the full term of the two consecutive sentences — i. e., until March 18, 1949, and, consequently, that the warrant, which had been issued well before that date, was valid and petitioner’s detention thereunder lawful and proper. The District Court, on December 14, 1948, granted respondent’s motion and, accordingly, entered an order quashing the" }, { "docid": "3401577", "title": "", "text": "OPINION FOLLMER, District Judge. Francis Anthony Agresti, an inmate at the United States Penitentiary, Lewisburg, filed in this court a petition for a writ of habeas corpus on November 1, 1967. On November 3, 1967, the court issued a Rule on the warden of the said penitentiary to show cause why the writ should not be granted. A response and traverse were filed and a hearing was held before the court, at which petitioner was present and testified. In addition, both sides have submitted additional briefs. At the hearing counsel for petitioner presented, in substance, the narrow issue of whether the parole hearing held on September 13, 1967, was sufficiently timely to afford petitioner due process of law. Petitioner was confined in the Lewis-burg Penitentiary on a five year sentence beginning March 2, 1962. After serving a part of that sentence, he was granted a mandatory release for statutory and earned good time on August 2, 1965. The release conditions were that petitioner was to remain under the jurisdiction of the United States Board of Parole, as if on parole, until the expiration of his maximum term of sentence, less one hundred and eighty days, or until September 2, 1966. Petitioner’s maximum term of sentence would have expired on March 2,1967. The violator’s warrant, which was introduced into evidence, shows that petitioner was thereafter arrested in Maryland by the Maryland authorities on or about March 31, 1966, and charged with being an accessory to an armed robbery that occurred on March 27, 1966. The warrant application shows that the United States Board of Parole had listed two reasons for revoking petitioner’s release. They were: (1) he was then charged with armed robbery in the State of Maryland, and (2) petitioner had associated with known felons. The warrant was lodged against petitioner while he was under the supervision of the Maryland authorities and was used as a detainer. The record also shows that petitioner was constantly under arrest by the Maryland authorities from March 31, 1966, until August 16, 1967, when he placed bond with the Maryland authorities and was released" } ]

[ { "docid": "316817", "title": "", "text": "trial attorney. The defendant has represented to this Court that its in-house counsel involved in this litigation neither conduct scientific research nor prosecute patents. These attorneys simply do not face Mr. Greene’s prospect of having to distil one’s own thoughts from a competitor’s thoughts during the course of future aeronautic work. In E.I. du Pont de Nemours & Company v. Phillips Petroleum Company, 219 U.S.P.Q. 37 (D.Dd.1982) (Latchum, C.J.), this Court acquiesced to disclosure of defendant’s confidential information to plaintiff’s in-house experts upon the premise that plaintiff would “undoubtedly arrange [the in-house experts’] work and project assignments in such a way as to avoid the possibility” of conscious or unconscious abuse of confidential information. Id. at 39. Here, defendant’s in-house counsel will be so segregated. In addition, counsel who are admitted to the Bar of this Court are officers of the Court and are bound by the Code of Professional Responsibility. The Federal Circuit noted these professional obligations in a recent decision in which it rejected a blanket ban on in-house counsel access to confidential materials at the bar of the Court of International Trade. U.S. Steel Corp. v. United States, 730 F.2d 1465, 1468 (Fed.Cir.1984). Cf. A. Hirsh, Inc. v. United States, 657 F.Supp. 1297 (CIT 1982) (in-house attorney denied access to confidential information, viz. non-public portion of administrative record submitted to or produced by International Trade Administration and International Trade Commission, where attorney was an officer of a small family business). Accordingly, we grant access to defendant’s in-house counsel who are admitted to the Bar of this Court. The plaintiff refers to a recent decision of the Federal Circuit approving an International Trade Commission protective order that prohibited divulgence of confidential materials to in-house counsel. Akzo N.V. v. United States Int’l Trade Comm’n, 808 F.2d 1471 (Fed.Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 2490, 96 L.Ed.2d 382 (1987). Akzo does not control the present litigation. First, the Federal Circuit’s decision simply affirmed the International Trade Commission’s protective order in light of the appellants’ due process attack and did not craft a per se ban on divul-gence of" } ]

[ { "docid": "6650328", "title": "", "text": "upon a showing that the employees had actually used the confidential information. SKF has presented virtually no evidence of actual use, so this court must limit the relief ordered to remedying the violation of the non-disclosure covenant. The third case identified by SKF, DoubleClick, Inc. v. Henderson, No. 116914/97, 1997 WL 731413 (N.Y.Sup. Nov.7, 1997), is a New York state case that turns not on actual use, but on the inevitable disclosure doctrine. Although that doctrine applies in Illinois as well as New York, see Strata Mktg., 317 Ill.App.3d at 1070, 251 Ill.Dec. 595, 740 N.E.2d at 1177-78, it does not apply on these facts. Under the inevitable disclosure doctrine, courts can find trade secret misappropriation when the defendant’s new employment “will inevitably lead him to rely on the plaintiffs trade secrets.” PepsiCo, Inc., 54 F.3d at 1269. Inevitable disclosure is thus something of a misnomer; inevitable use is more apt. Here, it is not inevitable that Defendants will rely on SKF’s trade secrets and confidential information, as there was evidence that each Defendant possesses the knowledge to perform reliability services without reliance upon SKF materials. None of the cases cited by SKF persuade the court that a broad injunction preventing Defendants from competing with SKF is appropriate. Defendants’ apparent violations of the non-disclosure provisions do warrant an injunction against use of that information in their business. Such an injunction more directly addresses the potential for harm at play here, namely, the ability of ERSI to use SKF customer information to gain an improper competitive advantage. Without the use of that information, ERSI becomes simply a competitor in the provision of reliability services. Not only does such an injunction prevent irreparable harm to Plaintiff, it would have little deleterious impact on Defendants; Bjerkness insists Defendants do not need the information they brought over from SKF and that an injunction preventing them from using that information would not alter the way ERSI conducts business. (Tr. at 892.) To the extent SKF claims it was harmed by Defendants’ past use of SKF information in reaching agreements with SKF clients, SKF possesses an" }, { "docid": "23691606", "title": "", "text": "a service technician, \"does not set up service runs or set prices; he merely executes the service runs as instructed by his employer”). A law review article co-authored by the Senate sponsor of Fla. Stat. § 542.335 implies that a second standard should govern. See John A. Grant & Thomas Steele, Restrictive Covenants: Florida Returns to the Original “Unfair Competition” Approach to the 21st Century, 70 Fla. B.J. 53, 53-56 (Nov. 1996) (hereinafter \"Grant & Steele”). Grant & Steele, which has been cited by numerous Florida decisions, see, e.g., Univ. of Florida, Bd. of Trustees v. Sanal, 837 So.2d 512, 516 (Fla.Dist.Ct.App.2003), suggest that in determining whether an employee’s knowledge of confidential information justifies a restriction against work for a competitor, courts should look to the definition of threatened misappropriation used in trade secrets law. See Grant & Steele at 54-55, 54 n. 15; Fla. Stat. §§ 688.002-688.003. As other jurisdictions have recognized, under trade secrets law, threatened misappropriation can be enjoined where, based on the details of the trade secrets at issue and the employee’s position at the new employer, disclosure of the trade secrets would be inevitable. See PepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir.1995) (enjoining employee from working for competitor based on inevitable disclosure of trade secrets even though employee did not enter into non-compete agreement); Payment Alliance Intern., Inc. v. Fareira, 530 F.Supp.2d 477, 482 (S.D.N.Y.2007) (enforcing restriction against work for a competitor and noting factors to consider in determining whether there is a risk of inevitable disclosure). One Florida decision enforced a non-compete agreement based on this theory of inevitable disclosure. Fountain v. Hudson Cush-N-Foam Corp., 122 So.2d 232, 234 (Fla.Dist.Ct.App.1960) (finding that employee’s \"knowledge of the trade secrets would be so entwined with his employment” that \"it would seem logical to assume that his employment by a competitor ... would eventually result in a disclosure of this information”). Although the principle of inevitable disclosure would appear to impose a higher standard than the approach set out in O’Brien, it is unclear if, in practice, the application of those two standards would produce" }, { "docid": "11708275", "title": "", "text": "to rely on his former employer’s trade secrets. See PepsiCo, Inc. v. Redmond, 54 F.3d 1262, 1269 (7th Cir.1995) (outlining the basic doctrinal requirements). In this case, Interbake’s contention is that based on Tomasiello’s knowledge of its trade secrets that were acquired during his tenure at Interbake and his new duties and incentives with BoDeans, it is inevitable that he will disclose Interbake’s confidential and proprietary information to BoDeans, and thereby, violate the Iowa Uniform Trade Secrets Act. There has been some debate, however, among courts addressing the inevitable disclosure doctrine, not only with respect to what standard should govern, but also if the doctrine should even be applied. Compare PepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir.1995), and Merck & Co. v. Lyon, 941 F.Supp. 1443 (M.D.N.C.1996) (applying the inevitable disclosure doctrine), with Del Monte Fresh Produce Co. v. Dole Food Co., 148 F.Supp.2d 1326 (S.D.Fla.2001) (rejecting the inevitable disclosure doctrine and instead, relying on a theory of threatened disclosure only). For example, in the seminal case of PepsiCo, Inc. v. Redmond, the defendant-employee resigned his position at PepsiCo and began working at Quaker Oats Company, a competitor of PepsiCo’s in the sport drink and new age drink market. 54 F.3d at 1264. At the time the defendant left PepsiCo, he had worked for the company for ten years, was employed in a relatively high-level position when he left and had extensive and intimate knowledge about PepsiCo’s strategic goals for that year. Id. PepsiCo argued the information held by their former employee would be inevitably disclosed, not because the defendant would try to appropriate the marketing and advertising information, but because he would be able to anticipate the plaintiffs distribution, packaging, pricing and marketing moves. The Seventh Circuit Court of Appeals agreed, stating that “PepsiCo finds itself in the position of a coach, one of whose players has left, playbook in hand, to join the opposing team before the big game.” Id. at 1270. Thus, the court effectively converted the defendant’s confidentiality agreement into a non-compete agreement by enjoining him from working for a direct competitor for a" }, { "docid": "19904043", "title": "", "text": "a potential competitor from having access to its software. In response to discovery requests for access to the CUI software, CUI asserted that its end use product — the “Circa 2005 CUPD” software — contained trade secrets and that the disclosure of that software to a competitor could cause CUI considerable harm. Olmstead contended that its employees were in the best position to evaluate the software because those employees are also familiar with Olmstead’s software. The district court resolved the issue by allowing Olmstead’s expert to review and run the CUI software in the presence of counsel at a location mutually agreeable to both parties. The court reasoned that the parties had reached an agreement that information designated “Highly Confidential Material” could only be viewed by counsel and experts, and noted that Olmstead had not challenged CUI’s position that its end use product contained trade secrets. Federal Rule of Civil Procedure 26(c)(1)(G) permits a district court to require that “a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only a specified way.” “It is within the sound discretion of the trial court to decide whether trade secrets are relevant and whether the need outweighs the harm of disclosure. Likewise, if the trade secrets are deemed relevant and necessary, the appropriate safeguards that should attend their disclosure by means of a protective order are also a matter within the trial court’s discretion.” Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323, 326 (10th Cir. 1981). Balancing the competing interests, the district court decided that the CUI interface would be treated in the manner that the parties had agreed would be appropriate for highly confidential material. As the district court stated, “Limiting the review of CU Interface’s software to Olmstead’s experts and counsel will assist Olmstead in defining the nature of its copy right infringement claims while protecting CU Interface’s trade secrets and proprietary information.” While the court limited access to CUI’s software to Olmstead’s expert and counsel, Olmstead also had opportunities to depose CUI employees who had worked with both Olmstead" }, { "docid": "11708274", "title": "", "text": "a duty not to disclose information Inter-bake considered trade secrets or otherwise proprietary or confidential. That duty arises, in the first instance, from the Confidentiality Agreement Tomasiello signed electronically on December 28, 2005. A breach of that duty would occur if Toma-siello were to disclose confidential information to BoDeans through his employment, and therefore any disclosure to BoDeans or any acquisition of that information by BoDeans from Tomasiello would be via “improper means” in violation of the statute. Here, however, Interbake has not affirmatively shown actual disclosure has occurred. Thus, Interbake must rely on the doctrines of threatened disclosure or inevitable disclosure, two related, although somewhat differentiated theories of recovery. A brief discussion of the interplay between the two doctrines is necessary. The inevitable disclosure doctrine has, in certain situations, been used as a vehicle for demonstrating that an injunction is necessary to prevent the misappropriation of trade secrets. This doctrine is essentially a theory of relief for claims of misappropriation of trade secrets when an employee’s new employment will “inevitably” lead him or her to rely on his former employer’s trade secrets. See PepsiCo, Inc. v. Redmond, 54 F.3d 1262, 1269 (7th Cir.1995) (outlining the basic doctrinal requirements). In this case, Interbake’s contention is that based on Tomasiello’s knowledge of its trade secrets that were acquired during his tenure at Interbake and his new duties and incentives with BoDeans, it is inevitable that he will disclose Interbake’s confidential and proprietary information to BoDeans, and thereby, violate the Iowa Uniform Trade Secrets Act. There has been some debate, however, among courts addressing the inevitable disclosure doctrine, not only with respect to what standard should govern, but also if the doctrine should even be applied. Compare PepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir.1995), and Merck & Co. v. Lyon, 941 F.Supp. 1443 (M.D.N.C.1996) (applying the inevitable disclosure doctrine), with Del Monte Fresh Produce Co. v. Dole Food Co., 148 F.Supp.2d 1326 (S.D.Fla.2001) (rejecting the inevitable disclosure doctrine and instead, relying on a theory of threatened disclosure only). For example, in the seminal case of PepsiCo, Inc. v. Redmond, the" }, { "docid": "22969570", "title": "", "text": "that they will inevitably do so.” Teradyne’s claims would have passed Rule 12(b)(6) muster had they properly alleged inevitable disclosure, including a statement that Clear intended to use Teradyne’s trade secrets or that the former Teradyne employees had disavowed their confidentiality agreements with Teradyne, or an allegation that Clear could not operate without Teradyne’s secrets. However, [t]he defendants’ claimed acts, working for Teradyne, knowing its business, leaving its business, hiring employees from Teradyne and entering the same field (though in a market not yet serviced by Teradyne) do not state a claim of threatened misappropriation. All that is alleged, at bottom, is that defendants could misuse plaintiffs se crets, and plaintiffs fear they will. This is not enough. It may be that little more is needed, but falling a little short is still falling short. Id. at 357. In AMP, we affirmed the denial of a preliminary injunction on the grounds that the plaintiff AMP had failed to show either the existence of any trade secrets or the likelihood that defendant Fleischhacker, a former AMP employee, would compromise those secrets or any other confidential business information. AMP, which produced electrical and electronic connection devices, argued that Fleishhacker’s new position at AMP’s competitor would inevitably lead him to compromise AMP’s trade secrets regarding the manufacture of connectors. AMP, 823 F.2d at 1207. In rejecting that argument, we emphasized that the mere fact that a person assumed a similar position at a competitor does not, without more, make it “inevitable that he will use or disclose ... trade secret information” so as to “demonstrate irreparable injury.” Id. It should be noted that AMP, which we decided in 1987, predates the ITSA, which took effect in 1988. The ITSA abolishes any common law remedies or authority contrary to its own terms. 765 ILCS 1065/8. The ITSA does not, however, represent a major deviation from the Illinois common law of unfair trade practices. Elmer Miller, Inc. v. Landis, 253 Ill.App.3d 129, 192 Ill.Dec. 378, 381, 625 N.E.2d 338, 341 (1st Dist.1993), appeal denied, 154 Ill.2d 559, 197 Ill.Dec. 485, 631 N.E.2d 707 (1994); Colson" }, { "docid": "701231", "title": "", "text": "with respect to the possibility of irreparable injury is that the use or disclosure of its protectable confidential information or trade secrets would tend to diminish its competitive advantage in the rigid disc market. The defendants advance a number of contentions with regard to 3M’s claim of injury. Again, defendants point out that 3M’s failure to attempt to enforce such restrictive covenants against its former employees infers that 3M will not possibly suffer irreparable harm. The defendants also have continually expressed their intentions to not disclose or acquire, as the case may be, any of 3M’s confidential information. Further, even assuming that Kirkevold were to actually disclose 3M’s confidential information to Verbatim, Verbatim contends that any disclosure could not injure 3M because Verbatim could not use such information. Defendants therefore reason that there is no real threat of injury in the event of disclosure, and therefore a preliminary injunction is not warranted. The issue of whether 3M has shown the requisite injury for a preliminary injunction must again be analyzed in light of the Court of Appeals’ decision in Modern Controls, Inc. v. Andreadakis, 578 F.2d 1264 (8th Cir. 1978), which took a rather expansive view of what constitutes possible irreparable injury. In this regard, the Modern Controls court rejected an identical argument made by defendants here, that a claimed intention not to disclose or receive confidential information was insufficient to negate the realistic threat of. disclosure and the possibility of irreparable harm. Id. at 1269-70. Further, Modern Controls noted that it would be “unrealistic” to expect a former employee not to utilize in some fashion in his new employment, although short of direct disclosure, confidential information he obtained while working for a former employer. Id. at 1270. The rejection of this argument in Modern Controls has inevitable application to the defendants’ contentions regarding their intent not to disclose or acquire such information, and consequently their claimed intentions are not sufficient to diminish the realistic prospect of disclosure or use of 3M’s confidential information and potential for irreparable harm. The argument advanced by defendants with respect to 3M’s lack of" }, { "docid": "16510683", "title": "", "text": "would be undermining the legitimate business expectations of not only the parties in the case, but of all contracting parties.) As noted above, Defendant Marzullo has already breached the Non-Competition Agreement he had entered into with Kelly Services, and given the competitive nature of Plaintiffs and Defendant’s businesses, there is a substantial risk of further breaches. Moreover, the Michigan Legislature, by enacting M.C.L. § 445.774a, has expressly recognized the public’s interest in enforcing non-competition agreements. Accordingly, the Court finds that the public interest supports granting an injunction. In sum, after balancing the four factors, the Court finds that Plaintiff Kelly Services is entitled to the preliminary injunc-tive relief requested with respect to the Non-Competition Agreement. C. PLAINTIFF’S ALLEGATIONS OF “INEVITABLE DISCLOSURE” ARE INSUFFICIENT TO JUSTIFY AN INJUNCTION TO PRECLUDE DEFENDANT FROM VIOLATING THE CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT As for the Confidentiality and Non-Solicitation Agreement, Kelly Services admittedly has no evidence showing or suggesting that Marzullo has used or disclosed any confidential information or that he has solicited any Kelly clients or employees. However, Kelly anticipates that given Marzullo’s position with one of its competitors, it is inevitable that Marzullo will use or disclose Kelly’s confidential information and trade secrets. Under the Michigan Uniform Trade Secrets Act, M.C.L. § 445.1901, et seq., “[ajctual or threatened misappropriation [of trade secrets] may be enjoined.” M.C.L. § 445.1903(1) (emphasis added). Misappropriation includes the disclosure or use of a trade secret without consent. M.C.L. 445.1902(b)(ii); Sherman & Co. v. Salton Maxim Housewares, Inc., 94 F.Supp.2d 817, 821-822 (E.D.Mich.2000). In support of its “inevitable disclosure” argument, Kelly relies principally upon PepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir.1995). In PepsiCo, the plaintiff sought a preliminary injunction against a former employee who had signed a confidentiality agreement, to prevent him from divulging plaintiffs trade secrets or confidential information. The Seventh Circuit, applying the Illinois Trade Secrets Act, stated that “a plaintiff may prove a claim of trade secret misappropriation by demonstrating that defendant’s new employment will inevitably lead him to rely on the plaintiffs trade secrets.” Id. at 1269. In PepsiCo, the Seventh Circuit’s decision to" }, { "docid": "16510685", "title": "", "text": "affirm the District Court’s decision rested in significant part on the lower court’s determination that the former employee’s conduct evidenced a significant lack of candor, and proof of his willingness to misuse trade secrets. Id. at 1270. The “inevitable disclosure” doctrine, however, has not been adopted by Michigan courts. In CMI International, Inc. v. Intermet International Corp., 251 Mich.App. 125, 649 N.W.2d 808 (2002), noting that no Michigan case has interpreted the MUTSA statutory provision concerning “threatened” misappropriation, the Michigan Court of Appeals discussed the “inevitable disclosure” theory, specifically, noting the PepsiCo decision, and held Even assuming that the concept of ‘threatened misappropriation’ of trade secrets encompasses a concept of inevitable disclosure, that concept must not compromise the right of employees to change jobs. See Hayes-Albion Corp. v. Kuberski, 421 Mich. 170, 188, 364 N.W.2d 609 (1984). Accordingly, we hold that for a party to make a claim of threatened misappropriation, whether under a theory of inevitable disclosure or otherwise, the party must establish more than the existence of generalized trade secrets and a competitor’s employment of the party’s former employee who has knowledge of trade secrets. 251 Mich.App. at 133-34, 649 N.W.2d at 813. Because CMI offered no evidence of duplicity on the part of its former employee, Defendant Ruff, or Ruffs new employer, Defendant Intermet, beyond Intermet’s employment of Ruff, the appellate court concluded that CMI did not establish a basis on which to claim inevitable disclosure. Therefore, the court determined that no preliminary injunction was warranted, and summary disposition was appropriate. See also Computer Training & Support Corp. v. Graves, 1999 WL 33435477 (Mich.App.1999) (affirming trial court’s denial of preliminary injunction based on a confidentiality/non-competition agreement where, although plaintiffs stated that defendant gained specialized knowledge and information through her employment with plaintiffs, they did not allege or present evidence demonstrating that defendant used that knowledge to plaintiffs’ detriment and the sole basis for plaintiffs’ claim rested on a conclusory, unsupported statement that defendant, on information and belief, was using plaintiffs’ confidential information and trade secrets). “It is well established that an injunction will not lie upon the" }, { "docid": "11708298", "title": "", "text": "(emphasis in the original). As to the balance of harms from enjoining disclosure of trade secrets or confidential information, the court finds that the balance once again tips in favor of a preliminary injunction. As the court has observed, Interbake stands to suffer significant injury, economic and non-economic, if disclosure of its trade secrets is not enjoined. The harm Interbake is confronted with is the disclosure of some of its most closely-guarded recipes and production information. The disclosure of this information to one of Interbake’s main competitors would undisputably pose serious ramifications to Interbake, even if the formulas had to be modified in order to be “usable” by Bo'Deans. In contrast, the harm suffered by BoDeans, if any, would be insignificant, as BoDeans would be no worse off if it is prevented from obtaining Inter-bake’s trade secrets. Thus, at least with respect to disclosure of trade secrets and confidential information, the scales of justice clearly tip in Interbake’s favor. However, the balance of harms is more complicated with respect to the harm as to enjoining Tomasiello’s continued employment with BoDeans. In Curtis 1000, the court found that, despite an employee’s right to work, the balance of harms weighed in the former employer’s favor. That conclusion, however, was based in part on the existence of a non-competition clause and an observation that the employee would not be precluded from working with his present employer, but only from competing with his former employer for certain customers. Id. at 1274. In the case now before the court, however, the plaintiffs did not seek a non-competition agreement from Tomasiello. This weighs heavily against entering an injunction that would prohibit Tomasiello from continuing employment with a competitor, particularly in light of the fact that Tomasiello has moved not only himself, but also uprooted his family to work for BoDeans. This presents the court with an arduous decision. The court is disturbed by the prospect of forcing an employee out of his job, particularly in a situation where a covenant not to compete has not been entered into. Essentially, Interbake, the industry leader who holds 95" }, { "docid": "14170855", "title": "", "text": "injunction to stop him from working for the competitor, the trial court “specifically found that in light of Acker-man’s pre-departure harvesting of Kimball’s proprietary information, there was a threat of misappropriation.” 652 N.E.2d at 510-11. Ackerman shows that where there is such clear evidence that the departing employee does not intend to honor the continuing obligation to preserve the confidentiality of trade . secrets, a court may enjoin employment with a competitor for a limited period of time, at least where no less restrictive remedy appears likely to be effective. However, the broad injunctive relief granted in Ackerman remains the exception rather than the rule. PepsiCo v. Redmond presented a closer case, and one more similar to this one. The ease was decided under the Illinois version of the uniform trade secret statute. A high- level manager for certain PepsiCo products had access to sensitive information about PepsiCo's costs, pricing, and marketing strategies. He resigned and joined a competitor in a position that made him directly responsible for managing products that competed directly with the PepsiCo products he had managed. 54 F.3d at 1264-66. The district court found that the employee would inevitably use PepsiCo’s trade secrets in his new position. That finding was based on both the nature of the new position and the employee’s lies and lack of good faith. See id. at 1270-71. The Seventh Circuit affirmed a preliminary injunction prohibiting the new employment based on the theory of “inevitable” disclosure. Id. at 1271; cf. AMP, Inc. v. Fleischhacker, 823 F.2d 1199, 1205 (7th Cir.1987) (competitor’s hiring of senior executive did not warrant injunction against employment based on fear of disclosure of confidential information). Ackerman and PepsiCo v. Redmond are both instructive here, but neither case warrants a finding of inevitable disclosure on this record. Lockhart took no documents or other confidential information with him when he left Firestone Building Products. He obviously has a thorough knowledge of the business, but the court finds credible Lockhart’s testimony and the testimony of others who stayed at Firestone Building Products that they cannot remember with precision the financial information" }, { "docid": "23691607", "title": "", "text": "employee’s position at the new employer, disclosure of the trade secrets would be inevitable. See PepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir.1995) (enjoining employee from working for competitor based on inevitable disclosure of trade secrets even though employee did not enter into non-compete agreement); Payment Alliance Intern., Inc. v. Fareira, 530 F.Supp.2d 477, 482 (S.D.N.Y.2007) (enforcing restriction against work for a competitor and noting factors to consider in determining whether there is a risk of inevitable disclosure). One Florida decision enforced a non-compete agreement based on this theory of inevitable disclosure. Fountain v. Hudson Cush-N-Foam Corp., 122 So.2d 232, 234 (Fla.Dist.Ct.App.1960) (finding that employee’s \"knowledge of the trade secrets would be so entwined with his employment” that \"it would seem logical to assume that his employment by a competitor ... would eventually result in a disclosure of this information”). Although the principle of inevitable disclosure would appear to impose a higher standard than the approach set out in O’Brien, it is unclear if, in practice, the application of those two standards would produce different results. It is, however, unnecessary for us to resolve this uncertain issue of Florida law because Gordon, whose argument on appeal addresses only the materials he retained, has not challenged the district court's reliance on OBrien or the district court’s findings about the other confidential information that he received. . A few matters raised by Gordon are potentially relevant to the issue of whether the confidential information he received justified enforcement of the competitor non-compete clause. First, Gordon cites Johnson Controls, Inc. v. Rumore, No. 07-cv-1808, 2008 WL 203575 (M.D. Fla. Jan. 23, 2008). However, Johnson Controls refused to enjoin an employee with confidential information from working for a competitor because his new position was located outside of the non-compete covenant's geographic scope. Thus, Johnson Controls is consistent with the approach taken in OBrien and is factually distinguishable from the instant case. Second, as discussed in n. 12, even Grant & Steele, on whom Gordon relies, acknowledge that threatened disclosure of confidential information can justify the enforcement of a restrictive covenant. Third, to the" }, { "docid": "14170856", "title": "", "text": "PepsiCo products he had managed. 54 F.3d at 1264-66. The district court found that the employee would inevitably use PepsiCo’s trade secrets in his new position. That finding was based on both the nature of the new position and the employee’s lies and lack of good faith. See id. at 1270-71. The Seventh Circuit affirmed a preliminary injunction prohibiting the new employment based on the theory of “inevitable” disclosure. Id. at 1271; cf. AMP, Inc. v. Fleischhacker, 823 F.2d 1199, 1205 (7th Cir.1987) (competitor’s hiring of senior executive did not warrant injunction against employment based on fear of disclosure of confidential information). Ackerman and PepsiCo v. Redmond are both instructive here, but neither case warrants a finding of inevitable disclosure on this record. Lockhart took no documents or other confidential information with him when he left Firestone Building Products. He obviously has a thorough knowledge of the business, but the court finds credible Lockhart’s testimony and the testimony of others who stayed at Firestone Building Products that they cannot remember with precision the financial information that is so sensitive. A general familiarity with plaintiff’s financial data has limited and diminishing potential value as compared to a knowledgeable outsider’s estimates about the business. Unlike the facts in Ackerman, the record here does not indicate that Lockhart has violated or is likely to violate his obligation to keep plaintiffs information secret. He made no efforts to take confidential information with him. When GAF and Lockhart worked out his employment arrangements, they were very aware of Lockhart’s obligations to Firestone Building Products and worked hard to develop an arrangement that would not violate the terms of the noncompetition agreement. They have kept Lockhart away írom any direct competition with Firestone Building Products. They have also made known among senior GAF management the nature of Lockhart’s obligations to Firestone Building Products. There is no evidence that Lockhart has made any disclosure of confidential information to anyone in any part of the GAF organization, nor is there any reason that he would need to do so in order to fulfill his new responsibilities at GAF." }, { "docid": "11708273", "title": "", "text": "under governing law on its claim that the information in question should not be disclosed, even if it is not trade secrets. The practical effect of this conclusion is to bring within the scope of any preliminary injunction not only the information provisionally held to be “trade secrets” above, but such other information as Interbake asserted in the preliminary injunction hearing was “confidential.” e. Is there a likelihood of disclosure by “improper means”? Governing law, in the form of the Iowa Uniform Trade Secrets Act, also provides a legal basis for Interbake’s claim that its “trade secrets” have been “misappropriated,” because, pursuant to § 550.2(3), To-masiello’s alleged disclosure of, and BoDeans’s acquisition of these “trade secrets” would be through “improper means.” See Iowa Code § 550.2(3)(a)-(e). “Improper means” include “breach of a duty to maintain secrecy.” Iowa Code § 550.2(1); Econ. Roofing, 538 N.W.2d at 646. Here, Interbake has shown, at least to the extent necessary to demonstrate a reasonable likelihood of success on the merits of its claim, that Tomasiello was subject to such a duty not to disclose information Inter-bake considered trade secrets or otherwise proprietary or confidential. That duty arises, in the first instance, from the Confidentiality Agreement Tomasiello signed electronically on December 28, 2005. A breach of that duty would occur if Toma-siello were to disclose confidential information to BoDeans through his employment, and therefore any disclosure to BoDeans or any acquisition of that information by BoDeans from Tomasiello would be via “improper means” in violation of the statute. Here, however, Interbake has not affirmatively shown actual disclosure has occurred. Thus, Interbake must rely on the doctrines of threatened disclosure or inevitable disclosure, two related, although somewhat differentiated theories of recovery. A brief discussion of the interplay between the two doctrines is necessary. The inevitable disclosure doctrine has, in certain situations, been used as a vehicle for demonstrating that an injunction is necessary to prevent the misappropriation of trade secrets. This doctrine is essentially a theory of relief for claims of misappropriation of trade secrets when an employee’s new employment will “inevitably” lead him or her" }, { "docid": "11708297", "title": "", "text": "at 1473. Also, the potential economic harm to each of the parties and to interested, third parties of either granting or denying the injunction is relevant. Id. Another consideration in the balance of harms calculus is whether the defendant has already voluntarily taken remedial action. Sanborn Mfg., 997 F.2d at 489. Where the non-movant has taken such action, the balance of harms is readjusted, because the potential for economic or other harm to the movant has been eliminated. Id. (citing Burndy Corp. v. Teledyne Indus., Inc., 748 F.2d 767, 774 (2d Cir.1984), which held that injunctive relief was “wholly unnecessary” when the defendant had voluntarily brought his product labeled with the UL mark into compliance with UL standards and where there was not a likelihood of repetition or hazard to the public). Similarly, present harm as the result of past misconduct is not sufficient to justify the injury to the non-movant of granting a preliminary injunction requiring some additional corrective action, because such relief “goes beyond the purpose of a preliminary injunction.” Id. at 490 (emphasis in the original). As to the balance of harms from enjoining disclosure of trade secrets or confidential information, the court finds that the balance once again tips in favor of a preliminary injunction. As the court has observed, Interbake stands to suffer significant injury, economic and non-economic, if disclosure of its trade secrets is not enjoined. The harm Interbake is confronted with is the disclosure of some of its most closely-guarded recipes and production information. The disclosure of this information to one of Interbake’s main competitors would undisputably pose serious ramifications to Interbake, even if the formulas had to be modified in order to be “usable” by Bo'Deans. In contrast, the harm suffered by BoDeans, if any, would be insignificant, as BoDeans would be no worse off if it is prevented from obtaining Inter-bake’s trade secrets. Thus, at least with respect to disclosure of trade secrets and confidential information, the scales of justice clearly tip in Interbake’s favor. However, the balance of harms is more complicated with respect to the harm as to enjoining" }, { "docid": "16510684", "title": "", "text": "that given Marzullo’s position with one of its competitors, it is inevitable that Marzullo will use or disclose Kelly’s confidential information and trade secrets. Under the Michigan Uniform Trade Secrets Act, M.C.L. § 445.1901, et seq., “[ajctual or threatened misappropriation [of trade secrets] may be enjoined.” M.C.L. § 445.1903(1) (emphasis added). Misappropriation includes the disclosure or use of a trade secret without consent. M.C.L. 445.1902(b)(ii); Sherman & Co. v. Salton Maxim Housewares, Inc., 94 F.Supp.2d 817, 821-822 (E.D.Mich.2000). In support of its “inevitable disclosure” argument, Kelly relies principally upon PepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir.1995). In PepsiCo, the plaintiff sought a preliminary injunction against a former employee who had signed a confidentiality agreement, to prevent him from divulging plaintiffs trade secrets or confidential information. The Seventh Circuit, applying the Illinois Trade Secrets Act, stated that “a plaintiff may prove a claim of trade secret misappropriation by demonstrating that defendant’s new employment will inevitably lead him to rely on the plaintiffs trade secrets.” Id. at 1269. In PepsiCo, the Seventh Circuit’s decision to affirm the District Court’s decision rested in significant part on the lower court’s determination that the former employee’s conduct evidenced a significant lack of candor, and proof of his willingness to misuse trade secrets. Id. at 1270. The “inevitable disclosure” doctrine, however, has not been adopted by Michigan courts. In CMI International, Inc. v. Intermet International Corp., 251 Mich.App. 125, 649 N.W.2d 808 (2002), noting that no Michigan case has interpreted the MUTSA statutory provision concerning “threatened” misappropriation, the Michigan Court of Appeals discussed the “inevitable disclosure” theory, specifically, noting the PepsiCo decision, and held Even assuming that the concept of ‘threatened misappropriation’ of trade secrets encompasses a concept of inevitable disclosure, that concept must not compromise the right of employees to change jobs. See Hayes-Albion Corp. v. Kuberski, 421 Mich. 170, 188, 364 N.W.2d 609 (1984). Accordingly, we hold that for a party to make a claim of threatened misappropriation, whether under a theory of inevitable disclosure or otherwise, the party must establish more than the existence of generalized trade secrets and a competitor’s" }, { "docid": "11708292", "title": "", "text": "of trade secrets to a competitor may cause irreparable harm. See Uncle B’s Bakery, 920 F.Supp. at 1434-36; Diversified Fastening Sys., 786 F.Supp. at 1492-93; Norand Corp., 785 F.Supp. at 1355. The types of trade secrets at issue in this case are some of Interbake’s most closely guarded proprietary and technical data. The court has found, at least provisionally, that Tomasiello agreed to be bound by the terms of the 2005 Confidentiality Agreement, and therefore concludes that, at least as to its trade secrets claims, Inter-bake has adequately demonstrated a threat of irreparable harm, because a breach of the agreement could certainly harm Interbake, particularly if that breach occurred in the realm of its secret recipes and formulas. Certainly, if the disclosure allows a competitor to cut corners in the research and development process of wafer recipe development, the competitor will attain a competing product that much sooner, and it is this harm to Interbake that is irreparable. Although an employee is entitled to use the fund of general knowledge he or she has accumulated in the course of employment, that entitlement does not extend to use of trade secrets. In PepsiCo., the Seventh Circuit Court of Appeals noted that the irreparable harm comes not from general skills and knowledge acquired by the former employee during his tenure with that former employer, but rather from “the par ticularized plans or processes developed by [the former employer] and disclosed to him while the employer-employee relationship existed, which are unknown to others in the industry and which give the employer an advantage over his competitors.” PepsiCo, 54 F.3d at 1269. However, it behooves the court to note that the threat of irreparable harm is somewhat tempered by the fact that any confidential or trade secret information that was disclosed would have to be scaled and tailored to fit within BoDeans’s specific processes. Even in light of this fact, however, the court is aware of the seriousness of the harm that could potentially occur by disclosure of the trade secret and confidential information at issue. This is true despite the fact that BoDeans" }, { "docid": "23448393", "title": "", "text": "to keep to itself, do not amount to a secret process or an item or service sold in trade. They would seem to be matters that could be brought out on the trial and therefore should be amenable to the discovery process. In Cook Paint & Varnish Co. v. Cook Chemical Co., D.C., 8 F.R.D. 93, which defendant cites as being most closely analogous to this case, the court overruled the objection made on the ground that the interrogatories required the disclosure of trade secrets. To be sure, the court in the Cook case made the point that the parties were not competitors but it also relied on authority to the effect that the records in the files of a business organization can be opened to an adversary’s discovery. It referred to the language of the court in Hickman v. Taylor, 3 Cir., 153 F.2d 212, 217, affirmed 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, and the cases cited in footnote 8 therein. In Sikes Co., Inc., v. Swift & Co., D.C., 11 F.R.D. 315, the court held that a secret formula was privileged but it appears that the ingredients of the formula were supplied. While in Wagner Mfg. Co. v. Cutler-Hammer, Inc., D.C., 10 F.R.D. 348, the court sustained objections to certain interrogatories, it appeared to do so on the ground either that the interrogating party already had obtained all the information it needed or that all' such information had been made available to it. At any rate, it did not explicitly deal with the objection on the ground of disclosure of trade secrets. None of the cases cited by defendant therefore militate against the holdings in the Marshwood and Grasselli cases cited above. Defendant seems to be most concerned that this information be not delivered to the plaintiff which is its competitor. I do not see how it is possible to avoid this and at the same time satisfy the purposes of the deposition-discovery rules unless defendant desires an order restricting the disclosure of this information to plaintiff’s attorney. This is of course to be without" }, { "docid": "4939497", "title": "", "text": "judgment. Id. . At the preliminary injunction hearing, the court expressed its personal disagreement with the rule that continued employment can serve as adequate consideration for a non-competition agreement. However, as the court recognized both in the hearing and in its decision in Curtis 1000, the Iowa Supreme Court is of a different view. See Curtis 1000, 878 F.Supp. at 1259-60. The court must here apply Iowa law, not seek to alter it by judicial fiat or personal preference. Adequate consideration for the non-competition agreement, if O’Rourke signed it upon arrival to work, therefore exists in O'Rourke’s continued employment with Uncle B’s Bakery, even if Uncle B’s Bakery demanded agreement to such a covenant without any prior notice that it was a job requirement, or any prior discussion of its terms. . Because the court finds that Uncle B’s Bakery has a reasonable likelihood of success on the merits of a claim that O'Rourke agreed to be bound by the \"Non-Disclosure/Non-Compete” Agreement, the court need not here consider the further question of whether an injunction on O’Rourke's continued employment with Brooklyn Bagel Boys could be based solely on a need to protect trade secrets or confidential information. Diversified Fastening Sys., 786 F.Supp. at 1491. The court recognizes that as a general matter, courts will enjoin employment with a competitor in order to protect a former employer from disclosure of trade secrets where disclosure appears inevitable from the nature of the former employee's employment with the competitor. See, e.g., Norand, 785 F.Supp. at 1355 (\"It does concern the court that there is no non-competition agreement between plaintiff and defendant,” but the court found that simply prohibiting nondisclosure would be insufficient as the defendant could not help but use his knowledge in his employment with a competitor company, citing as supporting such a conclusion Emery Indus., Inc. v. Cottier, 202 U.S.P.Q. (BNA) 829 (S.D.Ohio 1978), and Air Prods. and Chem., Inc. v. Johnson, 296 Pa.Super. 405, 442 A.2d 1114 (1982)). Although defendants’ counsel particularly directed the court’s attention to the decision in Emery Industries as indicating critical reasons, not pres ent here," }, { "docid": "22150639", "title": "", "text": "to make “any order which justice requires to protect a party ... from annoyance, embarrassment, oppression, or undue burden ... including ... that a trade secret ... not be disclosed or be disclosed only in a designated way.” When a court is confronted with a motion to quash, its duty is not to deny discovery altogether, but to reduce the demand to a reasonable level, considering the parties’ concerns. Deitchman, 740 F.2d at 560. Rule 26(c) gives the court the responsibility and power to fashion an order balancing the parties’ interests. In Centurion Industries, Inc., a leading case on discovery involving trade secrets, the Tenth Circuit stated: “[Tjhere is no absolute privilege for trade secrets and similar confidential information. To resist discovery under Rule 26(c)(7), a person must first establish that the information sought is a trade secret and then demonstrate that its disclosure might be harmful. If these requirements are met, the burden shifts to the party seeking discovery to establish that the disclosure of trade secrets is relevant and necessary to the action, The district court must balance the need for the trade secrets against the claim of injury resulting from disclosure. If proof of relevancy or need is not established, discovery should be denied. On the other hand, if relevancy and need are shown, the trade secrets should be disclosed, unless they are privileged or the subpoenas are unreasonable, oppressive, annoying, or embarrassing. 665 F.2d at 325-26 (footnote and citations omitted). We agree with the Tenth Circuit and we believe that, should the Fourth Circuit speak, it would also follow the logical approach of the Tenth Circuit on this issue: that the selective disclosure of protectable trade secrets is not per se “unreasonable and oppressive” when appropriate protective measures are imposed. We are satisfied, as indicated above, that the information sought by Heat & Control is relevant and necessary, although the district court is required to balance those factors with the potential hardship to Hester should the information sought be provided Heat & Control. Hester, however, has not thus far established that the discovery Heat & Control" } ]

[ { "docid": "22056773", "title": "", "text": "Mr. Justice STRONG delivered the opinion of the court. In an action like the present,'brought to recover that which is substantially a statutory penalty, the statute must receive a strict, that is, a literal construction. The defendant is not to be subjected to a penalty unless the words of the statute plainly impose it. The question, therefore, is whether the thirtieth section of the act of Congress of June 3d, 1864, relative to National banking associations, clearly prohibits such associations in the State of Missouri from re serving and taking a greater rate of interest than 8 per cent., the rate limited by the laws of that State to be charged by the banks of issue organized under its laws. It is only in case a greater rate of interest has been paid than the National banking associations are allowed to receive that they are made liable to pay twice the interest. The act of Congress enacts that every such association “may take, receive, l’eserve, and charge on auy loan or discount made, or upon any note, bill of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State or Territory where the bank is located, and no more; except that where, by the laws of any State, a different rate is limited for banks of issue, organized under State laws, the rate so limited shall be allowed for associations organized in any such State under the act.” What, then, were the rates of interest allowed in Missouri when the loans were made by the defendants that are alleged to have been usurious? It is admitted to have been 10 per cent, per annum, allowed to all persons, except banks of issue organized under the laws of the State, and they were allowed to charge and receive only 8 per cent. The position of the plaintiff is, that the general provision' of the act of Congress that National banking associations may charge and receive interest at the rate allowed by the laws of the State where they are located, has no application to" } ]

[ { "docid": "23083220", "title": "", "text": "allowing the plaintiff to “avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). An independent corollary to this general rule is the “complete preemption” doctrine, “under which the preemptive force of certain federal statutes is deemed so ‘extraordinary’ as to convert complaints purportedly based on the preempted state law into complaints stating federal claims from their inception.” Krispin, 218 F.3d at 922 (citing Caterpillar Inc., 482 U.S. at 393, 107 S.Ct. 2425). Only claims falling within the preemptive scope of a federal statute are considered to invoke federal question jurisdiction, and the presence of even a single federal claim gives the defendant the right to remove an entire case to federal court. Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 543 (8th Cir.1996). The National Bank Act (NBA), 12 U.S.C. §§ 21-216d, authorizes a national bank “to charge interest at the rate allowed by the laws of the state in which the bank is located.” Krispin, 218 F.3d at 922 (citing 12 U.S.C. § 85). The NBA preempts actions challenging the lawfulness of the interest charged by a national bank. In Beneficial National Bank v. Anderson, 539 U.S. 1, 11, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003), the Supreme Court held sections 85 and 86 of the NBA “supersede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant ... relies entirely on state law.” The Court reasoned “[u]niform rules limiting the liability of national banks and prescribing exclusive remedies for their overcharges are an integral part of a banking system that needed protection from ‘possible unfriendly State legislation.’ ” Id. at 10, 123 S.Ct. 2058 (citation omitted). “Because §§85 and 86 provide the exclusive cause of action for such claims, there is, in short, no such thing as a state-law claim of usury against a national bank. Even though the complaint makes no mention of federal law, it unquestionably and unambiguously claims that petitioners violated" }, { "docid": "16558958", "title": "", "text": "MBank Houston, N.A., 691 F.Supp. 1027 (S.D.Tex.1988) (holding that borrower’s claim of usury against lender bank was governed by usury provisions of the National Bank Act, entitling bank to remove suit to federal court); cf. Hill v. Chemical Bank, 799 F.Supp. 948, 952 (D.Minn.1992) (holding that § 521 of the Depository Institutions Deregulation and Monetary Control Act, which is virtually identical to § 86 of the National Bank Act, “completely preempts the field of usury claims against federally insured state banks”). The court’s research revealed only one case that has held to the contrary, Copeland v. MBNA America, N.A., 820 F.Supp. 537 (D.Colo.1993). This court is constrained to agree with the vast weight of the authority on this issue. In M. Nahas & Co. v. First National Bank, 930 F.2d 608 (8th Cir.1991), the Eighth Circuit Court of Appeals stated that the complete preemption doctrine “is most appropriate where Congress has created an exclusive federal remedy that displaces any overlapping or inconsistent state remedies.” Id. at 612. As the court observed, “[s]ection 86 [of the National Bank Act] is an exclusive federal remedy, created by Congress over 100 years ago to prevent the application of overly-punative state law usury penalties against national banks. It is now settled that suits under § 86 may be brought in federal court.” Id. The court concluded, “whether or not plaintiff artfully attempted to couch its complaint wholly in state law terms, it was necessarily federal in nature and properly removable.” Id. In determining whether complete preemption exists for these provisions of the National Bank Act, the court in M. Nahas focused on Congress’s intent to provide an exclusive federal remedy. Id. This approach is consistent with the Fourth Circuit’s interpretation of the complete preemption doctrine. For example, in Rayner v. Smirl, 873 F.2d 60 (4th Cir.), cert. denied, 493 U.S. 876, 110 S.Ct. 213, 107 L.Ed.2d 166 (1989), in which the court applied the doctrine to the whistle-blower provisions of the Federal Railroad Safety Act, the court stated: “If the FRSA provides [the plaintiff] an exclusive remedy, his state claim for wrongful discharge is" }, { "docid": "3833066", "title": "", "text": "have discussed three, not two, categories of cases involving complete preemption. Despite our decision in Shafii, in light of Beneficial National Bank we must reconsider the question of complete preemption under the RLA. In Beneficial National Bank, the Court held that sections 85 and 86 of the National Bank Act, 12 U.S.C. §§ 85-86, “provide the exclusive cause of action” for usury claims against national banks and therefore completely preempt analogous state-law usury claims. 539 U.S. at 11,123 S.Ct. 2058. Sections 85 and 86 therefore have “the requisite pre-emptive force to provide removal jurisdiction.” Id. In the course of bringing the list of completely preemptive federal statutes to three — the LMRA, ERISA, and now the National Bank Act— Beneficial National Bank explained that to determine whether a federal statute completely preempts a state-law claim within its ambit, we must ask whether the federal statute provides “the exclusive cause of action” for the asserted state-law claim. Id. at 9, 123 S.Ct. 2058. If so, the asserted state-law claim “is in reality-based on federal law ... [and] is then removable under 28 U.S.C. § 1441(b), which authorizes any claim that ‘arises under’ federal law to be removed to federal court.” Id. at 8, 123 S.Ct. 2058. This language from Beneficial National Bank makes clear an aspect of the complete-preemption doctrine that is often overlooked: removal of state-law claims based on complete preemption becomes possible not solely by virtue of the preemptive force of a substantive federal statute such as the LMRA, ERISA, or the National Bank Act, but rather because a federal statute with completely preemptive force also gives rise to original federal jurisdiction, and as a consequence allows removal under 28 U.S.C. § 1441. Once we recognize that a state-law-based RLA minor dispute cannot be brought within the original jurisdiction of the federal courts and is thus not removable under § 1441, it becomes clear that the RLA does not completely preempt state-law claims that come within its scope. By its terms, § 1441 allows removal only of suits “of which the district courts of the United States have original" }, { "docid": "23622973", "title": "", "text": "for the arbitrator, not the court, to decide. IV. CONCLUSION For the reasons stated above, we conclude the district court erred in finding the Arbitration Agreements at issue in this case unconscionable and unenforceable. Moreover, Jenkins’ alternative argument for affirming the district court — alleging the underlying payday lending transactions are void ab initio under Georgia law — is an issue for an arbitrator, not the court, to decide. Accordingly, we reverse the district court’s decision and remand with instructions to grant Defendants’ motion to compel arbitration. REVERSED and REMANDED. . Borrowers' repayment checks were made payable to FNB and were deposited in a bank account in FNB's name. . The class action waiver was also conspicuously disclosed at another point in the Arbitration Agreements, where it was further explained: \"THE ARBITRATOR SHALE NOT CONDUCT CLASS ARBITRATION; THAT IS, THE ARBITRATOR SHALL NOT ALLOW YOU TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY FOR OTHERS IN THE ARBITRATION.” . In her brief, Jenkins questions whether removal was appropriate in this case and suggests federal jurisdiction does not exist. This argument, however, is without merit. In Beneficial National Bank v. Anderson, 539 U.S. 1, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003), the United States Supreme Court held actions for usury against a national bank can be removed to federal court because the National Bank Act, 12 U.S.C. §§ 85-86 (2000), preempts state usury laws in such situations. Id. at 11, 123 S.Ct. at 2064. The Court explained: In actions against national banks for usury, [§§ 85 and 86] supercede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant, as here, relies entirely on state law. Because §§ 85 and 86 provide the exclusive cause of action for such claims, there is, in short, no such thing as a state-law claim of usury against a national bank. Id., 123 S.Ct. at 2064. Jenkins attempts to evade the Supreme Court's holding in Anderson by contending her usury claims" }, { "docid": "22760371", "title": "", "text": "as the “power to destroy,” McCulloch v. Maryland, 4 Wheat. 316, 431 (1819), supports the established interpretation of §§85 and 86 that gives those provisions the requisite pre-emptive force to provide removal jurisdiction. In actions against national banks for usury, these provisions supersede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant, as here, relies entirely on state law. Because §§85 and 86 provide the exclusive cause of action for such claims, there is, in short, no such thing as a state-law claim of usury against a national bank. Even though the complaint makes no mention of federal law, it unquestionably and unambiguously claims that petitioners violated usury laws. This cause of action against national banks only arises under federal law and could, therefore, be removed under § 1441. The judgment of the Court of Appeals is reversed. It is so ordered. Title 12 U. S. C. §85 provides: “Rate of interest on loans, discounts and purchases “Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal reserve bank in the Federal reserve district where the bank is located, whichever may be the greater, and no more, except that where by the laws of any State a different rate is limited for banks organized under state laws, the rate so limited shall be allowed for associations organized or existing in any such State under title 62 of the Revised Statutes. When no rate is fixed by the laws of the State, or Territory, or District, the bank may take, receive, reserve, or charge a rate not exceeding 7 per centum, or 1 per centum in excess of the discount rate on ninety day commercial paper" }, { "docid": "22760367", "title": "", "text": "complete preemption — certain causes of action under the LMRA and ERISA — the federal statutes at issue provided the exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that cause of action. See 29 U. S. C. § 1132 (setting forth procedures and remedies for civil claims under ERISA); § 185 (describing procedures and remedies for suits under the LMRA). III Count IV of respondents’ complaint sought relief for “usury violations” and claimed that petitioners “charged . .. excessive interest in violation of the common law usury doctrine” and violated “Alabama Code §8-8-1, et seq. by charging excessive interest.” App. 28. Respondents’ complaint thus expressly charged petitioners with usury. Metropolitan Life, Avco, and Franchise Tax Board provide the framework for answering the dispositive question in this case: Does the National Bank Act provide the exclusive cause of action for usury claims against national banks? If so, then the cause of action necessarily arises under federal law and the case is removable. If not, then the complaint does not arise under federal law and is not removable. Sections 85 and 86 serve distinct purposes. The former sets forth the substantive limits on the rates of interest that national banks may charge. The latter sets forth the elements of a usury claim against a national bank, provides for a 2-year statute of limitations for such a claim, and prescribes the remedies available to borrowers who are charged higher rates and the procedures governing such a claim. If, as petitioners asserted in their notice of removal, the interest that the bank charged to respondents did not violate §85 limits, the statute unquestionably pre-empts any common-law or Alabama statutory rule that would treat those rates as usurious. The section would therefore provide the petitioners with a complete federal defense. Such a federal defense, however, would not justify removal. Caterpillar Inc. v. Williams, 482 U. S. 386, 393 (1987). Only if Congress intended § 86 to provide the exclusive cause of action for usury claims against national banks would the statute be comparable to the provisions that" }, { "docid": "22471937", "title": "", "text": "§ 301(a) of the Copyright Act, Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 232 (4th Cir.1993), the point was debatable. B. Effect of Anderson This analytical framework has been changed by Anderson, 539 U.S. at 8-11, 123 S.Ct. 2058. The complaint in that case alleged state law usury claims against a national bank chartered under the National Bank Act. Section 85 of the National Bank Act, 12 U.S.C. § 85, specifies the substantive limits on the rates of interest that national banks may charge, while § 86 of the Act, 12 U.S.C. § 86, sets forth the elements, statute of limitations, and remedies for usury claims against national banks. In holding that the National Bank Act renders state law usury claims against national banks removable, the Supreme Court used these two sections to distinguish between normal preemption and complete preemption. The Court noted that § 85, on its own, preempts state law claims against national banks for charging interest that is within the § 85 limits. Anderson, 539 U.S. at 9, 123 S.Ct. 2058. Such preemption, however, is not complete, and thus would not create jurisdiction, because § 85 does not provide an exclusive federal cause of action. Id. Section 86, on the other hand, does provide an exclusive federal cause of action for usury claims against national banks and therefore does fall within the complete preemption doctrine so as to create federal jurisdiction. Id. at 9-10, 123 S.Ct. 2058. In so holding, the Court was willing to overlook the fact that § 86 was promulgated in 1864, before removal to federal courts was even possible. It ruled that “the proper inquiry focuses on whether Congress intended the federal cause of action to be exclusive rather than on whether Congress intended that the cause of action be removable.” Id. at 9 n. 5, 123 S.Ct. 2058. Given the Supreme Court’s approach in Anderson, we conclude that it means to extend the complete preemption doctrine to any federal statute that both preempts state law and substitutes a federal remedy for that law, thereby creating an exclusive federal cause of action." }, { "docid": "3833065", "title": "", "text": "were total, then because establishing ordinary preemption under the LMRA also establishes remova-bility (because § 301 supports complete preemption), so too would establishing ordinary preemption under the RLA establish removability. We now know, however, that the analogy between RLA and LMRA preemption in Hawaiian Airlines was never meant to go so far. In Beneficial National Bank, the Court clarified that it had found complete preemption only under the LMRA and ERISA, not under the RLA. The Court noted, “In the two categories of cases where this Court has found complete pre-emption — certain causes of action under the LMRA and ERISA — the federal statutes at issue provided the exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that cause of action.” Beneficial National Bank, 539 U.S. at 8, 123 S.Ct. 2058 (footnote omitted; emphasis added). Had Hawaiian Airlines established that § 184 of the RLA, like § 301 of the LMRA, completely preempted state-law causes of action within its scope, the Court in Beneficial National Bank would have discussed three, not two, categories of cases involving complete preemption. Despite our decision in Shafii, in light of Beneficial National Bank we must reconsider the question of complete preemption under the RLA. In Beneficial National Bank, the Court held that sections 85 and 86 of the National Bank Act, 12 U.S.C. §§ 85-86, “provide the exclusive cause of action” for usury claims against national banks and therefore completely preempt analogous state-law usury claims. 539 U.S. at 11,123 S.Ct. 2058. Sections 85 and 86 therefore have “the requisite pre-emptive force to provide removal jurisdiction.” Id. In the course of bringing the list of completely preemptive federal statutes to three — the LMRA, ERISA, and now the National Bank Act— Beneficial National Bank explained that to determine whether a federal statute completely preempts a state-law claim within its ambit, we must ask whether the federal statute provides “the exclusive cause of action” for the asserted state-law claim. Id. at 9, 123 S.Ct. 2058. If so, the asserted state-law claim “is in reality-based on federal law ..." }, { "docid": "16605322", "title": "", "text": "notarization, or fees incurred to obtain credit reports. 12 C.F.R. § 7.4001(a). The Supreme Court approved this definition in Smiley v. Citibank (South Dakota), N.A., holding that the examples in § 7.4001(a) drew a reasonable distinction between (a) expenses that “are assessed for simply making the loan, or for the borrower’s default,” and (b) fees “specifically assigned” to services incidental to the loan, such as reimbursements for processing an application, premiums tied to loan insurance, and appraisal costs. 517 U.S. 735, 741-42, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996). Like the Fifth Circuit and the OCC, we doubt that payment protection plan fees are interest. See Hood ex rel. Mississippi v. JP Morgan Chase & Co., 737 F.3d 78, 90-92 (5th Cir.2013) (per curiam) (suggesting that payment protection plan fees are not interest); Debt Cancellation Contracts and Debt Suspension Agreements, 67 Fed. Reg. 58,962, 58,694 (Sept. 19, 2002) (“The OCC’s regulations reflect the fact that national banks may set [payment protection plan] fees_Section 7.4002 of our rules authorizes national banks to establish non-interest charges and fees ‘according to sound banking judgment and safe and sound banking principles.’ ” (emphasis added) (quoting 12 C.F.R. § 7.4002)). But we leave this question for another day. Even assuming that protection plan fees are interest, the complaints here did not allege that the card providers charged excessive interest rates. C. For the complete preemption doctrine to apply, one of the Attorney General’s state law claims must be governed by §§85 and 86. Beneficial Nat’l, 539 U.S. at 7-8, 123 S.Ct. 2058. The Attorney General argues this is not the case here, because those sections only preempt claims that explicitly invoke a state usury law. At first glance, this argument has some attraction. In Beneficial National, the plaintiffs “expressly charged” that a national bank violated state usury laws. 539 U.S. at 9, 123 S.Ct. 2058. The Supreme Court held that §§85 and 86 “supersede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant, as here, relies entirely on" }, { "docid": "18466873", "title": "", "text": "Federal law provides the exclusive remedy Defendants state, ‘With respect to federal question jurisdiction, federal law provides that the exclusive penalty for a national bank which charges interest in excess of the amount permitted under Section 85 is governed by another provision of the National Bank Act—12 U.S.C. § 86 (‘Section 86’). Farmers’ & Mechanics’ Nat’l Bank v. Bearing, 91 U.S. 29, 35, 23 L.Ed. 196 (1875) (‘The power to supplement [Section 86] by State legislation is conferred neither expressly nor by implication.’) Since the periodic percentage charges and late fees challenged by plaintiff are interest charges governed by Section 85, federal law dictates that the claims asserted against the Bank necessarily arise under federal law.” (Def.Opp. at p. 4) In M. Nahas v. First Nat’l Bank of Hot Springs, 930 F.2d 608 (8th. Cir.1991), the court stated the following: Section 86 is an exclusive federal remedy, created by Congress over 100 years ago to prevent the application of overly-punitive state law usury penalties against national banks____ [W]hether or not plaintiff artfully attempted to couch its complaint wholly in state law terms it was necessarily federal in nature and properly removable. Id. at 612. See also Nelson v. Citibank, 794 F.Supp. 812 (D.Minn.1992) (relying on Na-has, a claim against a national bank for assessing periodic percentage charges on late fees added to credit card balances was removable on federal question grounds even though plaintiff framed complaint solely on the basis of state law claims); Beeman v. MBank Houston, N.A., 691 F.Supp. 1027 (S.D.Tex.1988) (usury claim against bank properly removable). Defendants note that plaintiff has conceded that section 85 and the exportation doctrine apply to the Bank’s periodic percentage charges, and thus under the complete preemption doctrine there is clearly federal question jurisdiction as to that issue. (Def.Opp. at p. 11). Defendants further contend that once it is established that federal law applies and provides the exclusive remedy for excessive interest charges (and thus late fees, according to defendants’ argument) federal question jurisdiction exists under the complete preemption doctrine, even though plaintiff alleges only state law claims. Under normal circumstances, the" }, { "docid": "13105652", "title": "", "text": "actions against national banks for usury, these provisions supersede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant, as here, relies entirely on state law. Because §§ 85 and 86 provide the exclusive cause of action for such claims, there is, in short, no such thing as a state-law claim of usury against a national bank. Id. at 11, 123 S.Ct. at 2064. Thus, if as Weitzman argues, the Copyright Act has complete preemptive effect, then the state law causes of action that Weitzman postulates are simply displaced, and substituted therefor would be the exclusive federal cause of action. As we noted above, a logical reading of Weitzman’s complaint suggests that it anticipates that the hypothetical coercive action that MCR could file would be a copyright infringement suit, or if a state law claim, would be a state law claim that sounds in the nature of an infringement action. Because of the nature of complete preemption, as described above, if such a state law claim is completely preempted, the state law claim would be entirely displaced, and substituted therefor would be the equivalent federal claim- — i.e., a copyright infringement claim. However, as we have held above, the district court would be required to dismiss such a federal copyright infringement claim for lack of jurisdiction. Because MCR has never applied for registration of its copyright, and because of the jurisdictional nature of § 411, the district court would have no jurisdiction over such an infringement claim. This panel’s supplemental briefing instructions to the parties specifically noted the possibility that we would hold that such a copyright infringement claim would be barred in this manner, and specifically gave Weitzman an opportunity to identify some other hypothetical coercive cause of action that MCR could bring that would raise a federal question and provide federal question jurisdiction. In its supplemental briefing, Weitzman identified two possible hypothetical coercive actions that MCR could bring — i.e., a state law breach of contract claim and a state law conversion" }, { "docid": "23083221", "title": "", "text": "F.3d at 922 (citing 12 U.S.C. § 85). The NBA preempts actions challenging the lawfulness of the interest charged by a national bank. In Beneficial National Bank v. Anderson, 539 U.S. 1, 11, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003), the Supreme Court held sections 85 and 86 of the NBA “supersede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant ... relies entirely on state law.” The Court reasoned “[u]niform rules limiting the liability of national banks and prescribing exclusive remedies for their overcharges are an integral part of a banking system that needed protection from ‘possible unfriendly State legislation.’ ” Id. at 10, 123 S.Ct. 2058 (citation omitted). “Because §§85 and 86 provide the exclusive cause of action for such claims, there is, in short, no such thing as a state-law claim of usury against a national bank. Even though the complaint makes no mention of federal law, it unquestionably and unambiguously claims that petitioners violated usury laws.” Id. at 11, 123 S.Ct. 2058; see also Krispin, 218 F.3d at 922 (“We have held that sections 85 and 86 ... completely preempt state law claims of usury brought against a national bank.”). As the district court observed, the remand issue here boils down to whether the plaintiffs brought a claim of unlawful interest charged by the defendants, notwithstanding the plaintiffs’ protestations their claims focused on unlawful fees. The plaintiffs argue the loan origination and discount fees were merely “finder’s fees” paid to Equity, which they contend are excluded from the OCC’s definition of interest. However, we are required to look beyond the plaintiffs’ artful attempts to characterize their claims to avoid federal jurisdiction, M. Nahas & Co., Inc. v. First Nat’l Bank of Hot Springs, 930 F.2d 608, 611-12 (8th Cir.1991), to determine whether the plaintiffs actually allege unlawful interest claims without expressly using the word “interest.” For purposes of 12 U.S.C. § 85, interest is defined as “any payment compensating a creditor or prospective creditor for an extension of credit," }, { "docid": "11095120", "title": "", "text": "the Bankruptcy Code fo create a whole scheme under federal control that would adjust all of the rights and duties of creditors and debtors alike, see MSB Exploration, 74 F.3d at 914, we can infer from Congress’s clear intent to provide damage awards only to the debtor in federal proceedings predicated upon the bad faith filing of an involuntary petition that Congress did not intend third parties to be able to circumvent this rule by pursuing those very claims in state court. C. Complete Preemption Like section 301 of the LMRA, section 502 of ERISA, and sections 85 and 86 of the National Bank Act, § 303(i) of the Bankruptcy Code “providefs] the exclusive cause of action for the claim[s] asserted and also set[s] forth procedures and remedies governing that cause of action.” Beneficial Nat’l Bank, 539 U.S. at 8, 123 S.Ct. 2058. Therefore, complete preemption is appropriate here, despite Appellants’ argument that if they do not have standing to recover damages under § 303(i), their causes of action cannot “arise under” title ll. The test for complete preemption set forth by the Supreme Court in Beneficial National Bank does not also require that Congress permit third parties to recover under the exclusive federal cause of action it created as a predicate to federal removal jurisdiction. See id. at 11, 123 S.Ct. 2058(holding that the plaintiffs’ cause of action arose under federal law because sections 85 and 86 of the National Bank Act provide the exclusive cause of action for usury claims against national banks, and thus there is “no such thing as a state-law claim of usury against a national bank”). Any possible error made by Con gress in granting or designing relief does not affect the jurisdiction of the= bankruptcy court. See Caterpillar, 482 U.S. at 391 n. 4, 107 S.Ct. 2425 (“ ‘The nature of the relief available after jurisdiction attaches is, of course, different from the question whether there is jurisdiction to adjudicate the controversy.’ ” (quoting Aveo, 390 U.S. at 561, 88 S.Ct. 1235)). It is for Congress to decide what penalties are appropriate for" }, { "docid": "23622974", "title": "", "text": "appropriate in this case and suggests federal jurisdiction does not exist. This argument, however, is without merit. In Beneficial National Bank v. Anderson, 539 U.S. 1, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003), the United States Supreme Court held actions for usury against a national bank can be removed to federal court because the National Bank Act, 12 U.S.C. §§ 85-86 (2000), preempts state usury laws in such situations. Id. at 11, 123 S.Ct. at 2064. The Court explained: In actions against national banks for usury, [§§ 85 and 86] supercede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant, as here, relies entirely on state law. Because §§ 85 and 86 provide the exclusive cause of action for such claims, there is, in short, no such thing as a state-law claim of usury against a national bank. Id., 123 S.Ct. at 2064. Jenkins attempts to evade the Supreme Court's holding in Anderson by contending her usury claims were brought primarily against First American, not FNB. She argues FNB was only included in her complaint because she was seeking a declaratory judgment finding FNB to be a “sham’' lender. Her complaint, however, expressly named both First American and FNB as Defendants and charged them both with usury. The complaint consistently used the plural form of \"Defendants.\" She asserted that \"Defendants violated” Georgia usury laws, and that she was \"entitled to recover from Defendants all interest charges paid by [her].” Because Jenkins charged a national bank with violating Georgia usury laws, removal was proper. . The district court correctly rejected Jenkins' assertion that First American, a Georgia entity, was the \"true” lender. FNB was expressly listed as the lender in the loan documents, while First American was listed merely as the \"loan marketer/servicer.” FNB approved the loans, funded the loans, and set the credit scoring criteria for the loans. Also, repayment checks were made out to FNB and deposited in a bank account in FNB’s name. . The Arbitration Agreements expressly stipulated the lending" }, { "docid": "22760370", "title": "", "text": "permitted rate.” See also Barnet v. National Bank, 98 U. S. 555, 558 (1879) (The “statutes of Ohio and Indiana upon the subject of usury ... cannot affect the case” because the Act “creates a new right” that is “exclusive”); Haseltine v. Central Bank of Springfield, 183 U. S. 132, 134 (1901) (“[T]he definition of usury and the penalties affixed thereto must be determined by the National Banking Act and not by the law of the State”). In addition to this Court’s longstanding and consistent construction of the National Bank Act as providing an exclusive federal cause of action for usury against national banks, this Court has also recognized the special nature of federally chartered banks. Uniform rules limiting the liability of national banks and prescribing exclusive remedies for their overcharges are an integral part of a banking system that needed protection from “possible unfriendly State legislation.” Tiffany v. National Bank of Mo., 18 Wall. 409, 412 (1874). The same federal interest that protected national banks from the state taxation that Chief Justice Marshall characterized as the “power to destroy,” McCulloch v. Maryland, 4 Wheat. 316, 431 (1819), supports the established interpretation of §§85 and 86 that gives those provisions the requisite pre-emptive force to provide removal jurisdiction. In actions against national banks for usury, these provisions supersede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant, as here, relies entirely on state law. Because §§85 and 86 provide the exclusive cause of action for such claims, there is, in short, no such thing as a state-law claim of usury against a national bank. Even though the complaint makes no mention of federal law, it unquestionably and unambiguously claims that petitioners violated usury laws. This cause of action against national banks only arises under federal law and could, therefore, be removed under § 1441. The judgment of the Court of Appeals is reversed. It is so ordered. Title 12 U. S. C. §85 provides: “Rate of interest on loans, discounts and purchases “Any" }, { "docid": "22760369", "title": "", "text": "we construed in the Avco and Metropolitan Life cases. In a series of cases decided shortly after the Act was passed, we endorsed that approach. In Farmers' and Mechanics’ Nat. Bank v. Dearing, 91 U. S. 29, 32-33 (1875), we rejected the borrower’s attempt to have an entire debt forfeited, as authorized by New York law, stating that the various provisions of §§ 85 and 86 “form a system of regulations ... [a]ll the parts [of which] are in harmony with each other and cover the entire subject,” so that “the State law would have no bearing whatever upon the case.” We also observed that “[i]n any view that can be taken of [§86], the power to supplement it by State legislation is conferred neither expressly nor by implication.” Id., at 35. In Evans v. National Bank of Savannah, 251 U. S. 108, 114 (1919), we stated that “federal law .. . . completely defines what constitutes the taking of usury by a national bank, referring to the state law only to determine the maximum permitted rate.” See also Barnet v. National Bank, 98 U. S. 555, 558 (1879) (The “statutes of Ohio and Indiana upon the subject of usury ... cannot affect the case” because the Act “creates a new right” that is “exclusive”); Haseltine v. Central Bank of Springfield, 183 U. S. 132, 134 (1901) (“[T]he definition of usury and the penalties affixed thereto must be determined by the National Banking Act and not by the law of the State”). In addition to this Court’s longstanding and consistent construction of the National Bank Act as providing an exclusive federal cause of action for usury against national banks, this Court has also recognized the special nature of federally chartered banks. Uniform rules limiting the liability of national banks and prescribing exclusive remedies for their overcharges are an integral part of a banking system that needed protection from “possible unfriendly State legislation.” Tiffany v. National Bank of Mo., 18 Wall. 409, 412 (1874). The same federal interest that protected national banks from the state taxation that Chief Justice Marshall characterized" }, { "docid": "13105651", "title": "", "text": "Cir.2004); Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 230-33 (4th Cir.1993); see also Dunlap v. G&L Holding Group, Inc., 381 F.3d 1285, 1289-91, 1293-98 (11th Cir.2004) (suggesting that the Copyright Act might have complete preemptive effect under some circumstances); Foley v. Luster, 249 F.3d 1281, 1287-88 (11th Cir.2001) (same). In this case, we need not decide whether to follow our four sister circuits and hold that the Copyright Act has complete preemptive effect. Before explaining why we need not decide that in this case, a brief note describing complete preemption is appropriate. The Supreme Court, in Beneficial National Bank v. Anderson, noted that complete preemption occurs when the preemptive force of the federal statute is “so powerful as to displace entirely any state cause of action.” 539 U.S. 1, 7, 123 S.Ct. 2058, 2062, 156 L.Ed.2d 1 (2003) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 23-24, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983)). In holding that the National Bank Act had complete preemptive effect, the Court held: In actions against national banks for usury, these provisions supersede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant, as here, relies entirely on state law. Because §§ 85 and 86 provide the exclusive cause of action for such claims, there is, in short, no such thing as a state-law claim of usury against a national bank. Id. at 11, 123 S.Ct. at 2064. Thus, if as Weitzman argues, the Copyright Act has complete preemptive effect, then the state law causes of action that Weitzman postulates are simply displaced, and substituted therefor would be the exclusive federal cause of action. As we noted above, a logical reading of Weitzman’s complaint suggests that it anticipates that the hypothetical coercive action that MCR could file would be a copyright infringement suit, or if a state law claim, would be a state law claim that sounds in the nature of an infringement action. Because of the nature of complete preemption, as described" }, { "docid": "11095121", "title": "", "text": "test for complete preemption set forth by the Supreme Court in Beneficial National Bank does not also require that Congress permit third parties to recover under the exclusive federal cause of action it created as a predicate to federal removal jurisdiction. See id. at 11, 123 S.Ct. 2058(holding that the plaintiffs’ cause of action arose under federal law because sections 85 and 86 of the National Bank Act provide the exclusive cause of action for usury claims against national banks, and thus there is “no such thing as a state-law claim of usury against a national bank”). Any possible error made by Con gress in granting or designing relief does not affect the jurisdiction of the= bankruptcy court. See Caterpillar, 482 U.S. at 391 n. 4, 107 S.Ct. 2425 (“ ‘The nature of the relief available after jurisdiction attaches is, of course, different from the question whether there is jurisdiction to adjudicate the controversy.’ ” (quoting Aveo, 390 U.S. at 561, 88 S.Ct. 1235)). It is for Congress to decide what penalties are appropriate for use in connection with the bankruptcy process, when those penalties shall be utilized, and who may benefit from them. See Gonzales, 830 F.2d at 1036. If individuals, such as Appellants, are not satisfied with the remedies available under the Bankruptcy Code, they should look to Congress, not the state courts, to supplement the available remedies. See Glannon, 261 B.R. at 266-67(holding that plaintiff could not avoid the effect of limited federal remedies by filing a state law claim against defendants who were not liable or subject to sanction under federal law). We do not hold that all state actions related to bankruptcy proceedings are subject to the complete preemption doctrine. We recognize that “because the common law of the various states provides much of the legal framework for the operation of the bankruptcy system, it cannot be said that Congress has completely preempted all state regulation which may affect the actions of parties in bankruptcy court.” Koffman v. Osteoimplant Tech., Inc., 182 B.R. 115, 124(D.Md.1995). However, “[r]emedies and sanctions for improper behavior and filings in" }, { "docid": "22760368", "title": "", "text": "not arise under federal law and is not removable. Sections 85 and 86 serve distinct purposes. The former sets forth the substantive limits on the rates of interest that national banks may charge. The latter sets forth the elements of a usury claim against a national bank, provides for a 2-year statute of limitations for such a claim, and prescribes the remedies available to borrowers who are charged higher rates and the procedures governing such a claim. If, as petitioners asserted in their notice of removal, the interest that the bank charged to respondents did not violate §85 limits, the statute unquestionably pre-empts any common-law or Alabama statutory rule that would treat those rates as usurious. The section would therefore provide the petitioners with a complete federal defense. Such a federal defense, however, would not justify removal. Caterpillar Inc. v. Williams, 482 U. S. 386, 393 (1987). Only if Congress intended § 86 to provide the exclusive cause of action for usury claims against national banks would the statute be comparable to the provisions that we construed in the Avco and Metropolitan Life cases. In a series of cases decided shortly after the Act was passed, we endorsed that approach. In Farmers' and Mechanics’ Nat. Bank v. Dearing, 91 U. S. 29, 32-33 (1875), we rejected the borrower’s attempt to have an entire debt forfeited, as authorized by New York law, stating that the various provisions of §§ 85 and 86 “form a system of regulations ... [a]ll the parts [of which] are in harmony with each other and cover the entire subject,” so that “the State law would have no bearing whatever upon the case.” We also observed that “[i]n any view that can be taken of [§86], the power to supplement it by State legislation is conferred neither expressly nor by implication.” Id., at 35. In Evans v. National Bank of Savannah, 251 U. S. 108, 114 (1919), we stated that “federal law .. . . completely defines what constitutes the taking of usury by a national bank, referring to the state law only to determine the maximum" }, { "docid": "16605323", "title": "", "text": "fees ‘according to sound banking judgment and safe and sound banking principles.’ ” (emphasis added) (quoting 12 C.F.R. § 7.4002)). But we leave this question for another day. Even assuming that protection plan fees are interest, the complaints here did not allege that the card providers charged excessive interest rates. C. For the complete preemption doctrine to apply, one of the Attorney General’s state law claims must be governed by §§85 and 86. Beneficial Nat’l, 539 U.S. at 7-8, 123 S.Ct. 2058. The Attorney General argues this is not the case here, because those sections only preempt claims that explicitly invoke a state usury law. At first glance, this argument has some attraction. In Beneficial National, the plaintiffs “expressly charged” that a national bank violated state usury laws. 539 U.S. at 9, 123 S.Ct. 2058. The Supreme Court held that §§85 and 86 “supersede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant, as here, relies entirely on state law.” Id. at 11, 123 S.Ct. 2058. But, on close analysis, the Attorney General’s argument founders. Section 85, without using the word “usury,” sets the rate of interest that a national bank may charge. Section 86 uses the word “usurious” to define a limitations period, but creates a right of action for plaintiffs charged “a rate of interest greater than is allowed by section 85.” Congress enacted these provisions so that a national bank could “charge its out-of-state credit-card customers an interest rate on unpaid balances allowed by its home State, when that rate is greater than that permitted by the State of the bank’s nonresident customers.” Marquette Nat’l Bank of Minn. v. First of Omaha Serv. Corp., 439 U.S. 299, 301, 99 S.Ct. 540, 58 L.Ed.2d 534 (1978). Thus, when a plaintiff alleges that a national bank charged “a rate of interest greater than is allowed,” the claim falls within the scope of §§ 85 and 86, regardless of the state law term invoked. That the plaintiffs in Beneficial National happened to invoke" } ]

[ { "docid": "6356844", "title": "", "text": "brought to the attention of the District Court under its reserved jurisdiction. We affirm the judgments of the District Court and vacate all orders granting injunctions by this court. . Intervenor on the side of the plaintiffs is The Sierra Club. . Intervenors on the side of the defendants are: . In the meantime this court issued a temporary injunction restraining construction which was later continued in effect after final disposition in the District Court until this appeal could be determined. . The second opinion of the District Court in this matter is reported in 356 F.Supp. 131 (N.D.Cal.1973). Attention is invited to both opinions for the details of the controversy which is discussed generally herein, and for the excellent discussion by the court of the legal issues involved. . Where the question is the threshold jurisdictional test of whether the Act applies or does not apply, the standard is whether the plaintiff has alleged facts which, if true, show that the proposed project would materially degrade any aspect of environmental quality. Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (5th Cir. 1972). Compare Hanly v. Kleindienst, 471 F.2d 823, 829 (2d Cir. 1972), using the “arbitrary and capricious” standard, and the cases cited at 471 F.2d 823, 829 n. 9. Where the Act creating the Agency has established a special standard of review, that standard will of course apply. Scenic Hudson Reservation Conference v. Federal Power Commission, 453 F.2d 463, 467 (2d Cir. 1971). . 5 U.S.C. § 706(2) (A) provides in pertinent part: “ . . . [T]he reviewing court shall — ■ * * * * * “(2) hold unlawful and set aside agency action, findings, and conclusions found to be— “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . . . .” . But see Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1280 (9th Cir. 1973), which uses 5 U.S.C. § 706(2) (D) as the appropriate standard, permitting appellate review of findings and conclusions found to be “without observance of procedure required by law.” Under" } ]

[ { "docid": "22959857", "title": "", "text": "unlawful.” This is the standard this circuit has adopted in reviewing a substantive decision to proceed with a project after the agency ha's prepared an adequate EIS considering the environmental effects. Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 300 (8th Cir. 1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1973). See also, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1281 (9th Cir. 1973); Calvert Cliffs’ Coordinating Committee v. Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971). The defendants argue that this standard should be applied to the threshold determination of the applicability of NEPA. The Second Circuit, in Hanly v. Kleindienst, 471 F.2d 823, 829-830 (2d Cir. 1972), cert. denied, 412 U.S. 908, 93 S. Ct. 2290, 36 L.Ed.2d 974 (1973) (Hanly II), has adopted this standard of review of the agency’s threshold determination. However, two other circuits, the Fifth and Tenth, have determinated that the initial determination is to be tested under a rule of reasonableness like that set forth in Overton Park. Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 1249 (10th Cir. 1973); Save Our Ten Acres v. Kreger, 472 F.2d 463, 465-466 (5th Cir. 1973). NEPA is not only an environmental full-disclosure law, but was also intended to effectuate substantive changes in decision making. Environmental Defense Fund v. Corps of Engineers, supra at 297. We are primarily concerned here with the action-forcing provisions of Sec. 102(2) (C), for without the full disclosure required by NEPA for major federal actions, there exists no sound basis to evaluate the environmental aspects of a project. And without this basis for evaluation, the is no way to determine whether a substantive decision to proceed is arbitrary and capricious. Section 102(1) of the Act contains a Congressional direction that environmental factors be considered “to the fullest extent possible.” An initial decision not to prepare an EIS precludes the full consideration directed by Congress. In view of the concern for" }, { "docid": "15509011", "title": "", "text": "or agency charged with its administra tion.” Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). See also Rosado v. Wyman, 397 U.S. 397, 415, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Zuber v. Allen, 396 U.S. 168, 192, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969). While CEQ is not strictly charged with administration of NEPA, it is charged with the duty of reviewing and appraising agency compliance with the statute, and so is entitled to deference. 42 U.S.C. § 4344(3). This deference is heightened when, as here, the administrative interpretation is adopted soon after passage of the legislation. Power Reactor Development Co. v. International Union of Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961); United States v. Zucca, 351 U.S. 91, 96, 76 S.Ct. 671, 100 L.Ed. 964 (1956); United States v. American Trucking Assns, 310 U.S. 534, 549 (1940). Accordingly, the courts have consistently deferred to CEQ guidelines. See SIPI, supra note 15, 156 U.S.App.D.C. at 402-404, 481 F.2d at 1086-1088; Greene County Planning Board v. FPC, supra note 22, 455 F.2d at 421; Environmental Defense Fund v. TVA, 6 Cir., 468 F.2d 1164, 1178 (1972). See note 22 supra. . Six circuits have found that agency action in violation of the substantive provisions of NEPA may be enjoined. However, the action must be found to be arbitrary or capricious. See Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, 146 U.S.App.D.C. 33, 39, 449 F.2d 1109, 1115 (1971); Environmental Defense Fund v. Corps of Engineers, 8 Cir., 470 F.2d 289, 300 (1972); Sierra Club v. Froehlke, 7 Cir., 486 F.2d 946, 953 (1973); Conservation Council of North Carolina v. Froehlke, 4 Cir., 473 F.2d 664, 665 (1973); Silva v. Lynn, 1 Cir., 482 F.2d 1282, 1283 (1973); Jicarilla Apache Tribe of Indians v. Morton, 9 Cir., 471 F.2d 1275, 1281 (1973). Contra, National Helium Corp. v. Morton, 10 Cir., 455 F.2d 650 (1971). Thus an agency could not be found to have failed to plan comprehensively in violation of NEPA unless that failure was so gross as to be" }, { "docid": "22249628", "title": "", "text": "increased population and air pollution, fails to discuss “non-construction” alternatives to the project, and inadequately discusses those alternatives which are considered. Further, appellants assert that the EIS discussion of the runway’s environmental effects upon noise pollution, water quality, recreation and wildlife is inadequate. Standard of Review: Agency action under NEPA is subject to judicial review pursuant to § 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). See Environmental Defense Fund v. Corps of Engineers, supra, 470 F.2d at 298-299, n.14; Town of Groton v. Laird, 353 F.Supp. 344, 348 (D.Conn. 1972). As such, a reviewing court may set aside agency action which is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.” See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971). See also Scenic Hudson Preservation Conference v. F. P. C., 453 F.2d 463, 467 (2 Cir. 1971), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1972). Cf. Save Our Ten Acres v. Kreger, 472 F.2d 463, 465-466 (5 Cir. 1973). As we recently stated in Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1281 (9 Cir. 1973): “Reversal of a substantive decision is appropriate only to situations where ‘the actual costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental valves.’ ” (citation omitted) See also, Environmental Defense Fund v. Froehlke, 473 F.2d 346, 352-353 (8 Cir. 1972); N.R.D.C., Inc. v. Morton, supra, 458 F.2d at 838. We examine appellants’ substantive challenges, therefore, mindful of the circumscribed nature of our review. Demographic Effects: Appellants argue that the EIS is inadequate in that it fails to include a study of the effect of the Reef Runway project upon the population of Honolulu and Hawaii. Appellants contend that a major incentive behind construction of the Reef Runway is Hawaii’s need to accommodate and encourage increased tourism to the state. Appellants then posit that the effect of increased tourism will be to increase the permanent population of Honolulu, to the detriment of the local" }, { "docid": "13549256", "title": "", "text": "1969 state court proceeding because the Act was not passed until 1970. This law affords plaintiff no relief, however, because it makes no provision for awarding damages and restitution to a private party, as plaintiff seeks. Although some courts have held that NEPA calls for judicial review of substantive agency decisions to undertake projects rather than only the adequacy of reports detailing the basis for such decisions, we find no decisions in which a private plaintiff has been awarded damages or restitution on the basis of the Act. In the only cases where such relief has been requested, it has been denied. Morris v. Tennessee Valley Authority, N.D.Ala., 1972, 345 F.Supp. 321, 324; Virginians for Dulles v. Volpe, E.D.Va., 1972, 344 F.Supp. 573, 578. See generally Environmental Defense Fund v. Corps of Eng. of U. S. Army, E.D.Ark., 1971, 325 F.Supp. 749, 755. Affirmed. . Heiser v. Woodruff, 327 U.S. 726, 733, 66 S.Ct. 853, 856, 90 L.Ed. 970 (1946), and cases cited therein. . Sierra Club v. Froehlke, 7 Cir., 1973, 486 F.2d 946, 951-953; Conservation Council of North Carolina v. Froehlke, 4 Cir., 1973, 473 F.2d 664, 665; Environmental Defense Fund v. Froehlke, 8 Cir., 1972, 473 F.2d 346, 352-353; Environmental Defense Fund v. Corps of Eng., U. S. Army, 8 Cir., 1972, 470 F.2d 289, 297-300; Calvert Cliffs’ Coord. Comm. v. United States A. E. Com’n, 1971, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115. See contra Environmental Defense Fund, Inc. v. Armstrong, 9 Cir., 1973, 487 F.2d 814, 822 n. 13; Jicarilla Apache Tribe of Indians v. Morton, 9 Cir., 1973, 471 F.2d 1275, 1279-1280; National Helium Corporation v. Morton, 10 Cir., 1971, 455 F.2d 650, 656; Upper Pecos Association v. Stans, 10 Cir., 1971, 452 F.2d 1233, 1236. This court has suggested that the “better reasoned rule favors such review.” Environmental Def. F., Inc. v. Corps of Eng. of U. S. Army, 5 Cir., 1974, 492 F.2d 1123, 1138-1140. That case, however, was decided on other grounds. . The record does not show the stage of completion of the highway project at the time plaintiff brought" }, { "docid": "23031058", "title": "", "text": "348 F.Supp. at 925, and abjured the role of deciding whether the waterway would be an economic and environmental disaster or a social, recreational and commercial boon to a deprived area. This position was based upon what the court correctly perceived to be the then prevailing rule. Today, the law has assumed a different posture. Appellants assert that jurisdiction for court review of the merits of the Corps’ ultimate decision to proceed with this project is found in the Administrative Procedure Act (APA), which provides that actions of government agencies are subject to judicial review except where “statutes preclude judicial review” (an exception not relevant here) or where “agency action is committed to agency discretion by law.” The Supreme Court has indicated that this agency discretion exception is a very narrow one, “applicable in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820-821, 28 L.Ed.2d 136 (1971). The preliminary question here then is whether Section 101 of NEPA [together with Section 102(1)] provides “law to apply” standards governing the substance of the agency decision to recommend a major federal action which can guide the judicial reweighing that plaintiffs seek. Courts that have discussed, either de-cisionally or in dicta, whether APA review extends to the merits of the agency’s final decision have reached varying results. To date the Fourth, Eighth, and District of Columbia Circuits find that NEPA does establish substantive “law to apply.” Conservation Council v. Froehlke, 473 F.2d 664, 665 (4th Cir. 1973); Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 298 (8th Cir. 1972), and Calvert Cliffs’ Coordinating Comm. v. Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971). The Ninth and Tenth Circuits discern only procedural requirements. Environmental Defense Fund, Inc. v. Armstrong, 487 F.2d 814 (9th Cir. 1973); National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir. 1971). The Second Circuit has not dealt directly with this issue. See Scenic" }, { "docid": "23097111", "title": "", "text": "Engineers (Tombigbee), supra, 492 F.2d 1123, at 1131. See also Carolina Environmental Study Group v. AEC, 510 F.2d 796 (D.C.Cir., 1975). Trout Unlimited v. Morton, 509 F.2d 1276, (9th Cir., 1974). . See Sierra Club v. Froehlke, 486 F.2d 946, 950 (7th Cir. 1973); EDF v. Corps of Engineers (Gillham Dam), supra, 470 F.2d 289 at 295-96; Calvert Cliffs’ Coordinating Comm., Inc. v. AEC, supra, 449 F.2d 1109, at 1114-15. . Section 102(2)(C) provides: Include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. . EDF v. Corps of Engineers (Tombigbee), supra, 492 F.2d 1123, at 1136. . Monroe Cty. Conservation Council, Inc. v. Volpe, 472 F.2d 693 (2nd Cir. 1972); accord, Committee of Nuclear Responsibility v. Seaborg, 149 U.S.App.D.C. 385, 463 F.2d 783 (1971); National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir. 1971); Calvert Cliffs’ Coord. Comm., Inc. v. AEC, supra, 449 F.2d 1109, at 1114. . Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, supra, 449 F.2d 1109, at 1122. . Save Our Ten Acres v. Kreger, 472 F.2d 463, at 467 (5th Cir. 1973). . See, e.g., EDF v. Corps of Engineers (Gillham Dam), 342 F.Supp. 1211, 1217, aff’d 472 F.2d 289 (8th Cir. 1972). . EDF v. Corps of Engineers (Tombigbee), supra, 492 F.2d 1123, at 1136. . Because of a realization of its uniqueness, special attention is accorded to the Florida Middle Ground region. The presence of other aquatic preserves unique to Florida is also mentioned. . The statement provides that high-resolution geophysical data covering all tracts to be offered for sale will be purchased" }, { "docid": "23031059", "title": "", "text": "136 (1971). The preliminary question here then is whether Section 101 of NEPA [together with Section 102(1)] provides “law to apply” standards governing the substance of the agency decision to recommend a major federal action which can guide the judicial reweighing that plaintiffs seek. Courts that have discussed, either de-cisionally or in dicta, whether APA review extends to the merits of the agency’s final decision have reached varying results. To date the Fourth, Eighth, and District of Columbia Circuits find that NEPA does establish substantive “law to apply.” Conservation Council v. Froehlke, 473 F.2d 664, 665 (4th Cir. 1973); Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 298 (8th Cir. 1972), and Calvert Cliffs’ Coordinating Comm. v. Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971). The Ninth and Tenth Circuits discern only procedural requirements. Environmental Defense Fund, Inc. v. Armstrong, 487 F.2d 814 (9th Cir. 1973); National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir. 1971). The Second Circuit has not dealt directly with this issue. See Scenic Hudson Preservation Conf. v. F.P.C., 453 F.2d 463, 481 (2d Cir. 1971), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1973). Despite dicta in two prior decisions of this court, Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (5th Cir. 1973), and Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 425 (5th Cir. 1973), which indicated that substantive agency decisions under NEPA are not reviewable, the majority and better reasoned rule favors such review. We therefore hold that the broad and general provisions of Section 101 do delineate sufficiently definite standards to permit a meaningful, albeit limited, review; and that an agency’s ecological decisions under NEPA are not beyond APA scrutiny. Appellants urge that the trial judge’s legal ruling doubly prejudiced their rights, because he not only refused to review the Corps’ decision to proceed but also ruled out their tender of evidence which assertedly would have shown that (1) an arbitrarily low interest rate had been used to amortize dollar costs, (2) false assumptions had been included" }, { "docid": "12006565", "title": "", "text": "arbitrary or clearly gave insufficient weight to environmental values.” Calvert Cliffs’ Coordinating Committee v. U.S. Atomic Energy Commission, supra, 449 F.2d at 1115. Id. at 300. The Fourth Circuit has expressly adopted the holding of the Eighth Circuit. Conservation Council of North Carolina v. Froehlke, 473 F.2d 664, 665 (4th Cir. 1973). The Fifth Circuit and the District of Columbia Circuit appear to be in accord. Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (5th Cir. 1973); Calvert Cliffs’ Coordinating Committee v. U. S. Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971). While this court has never considered the test or standard to be utilized in determining whether an environmental impact statement complies with NEPA and whether district courts have an obligation to review substantive agency decisions on the merits, the court has had an opportunity to discuss the importance of the National Environmental Policy Act, in particular, the requirements of Sections 101 and 102: Through the enactment of these procedural requirements the Congress has not only permitted but has compelled the responsible federal agencies to take environmental values into ac count. . . . Not only must the environmental consequences of a particular action be considered, but Section 102 requires also that these consequences be weighed and balanced against other considerations, such as financial or social, which may be involved. The environmental impact statement required by Section 102 is designed to insure that this balancing analysis is given its fullest effect. Pro forma compliance with the substantive guidelines of Section 101 simply will not suffice. Section 102 of NEPA provides that its procedures be implemented and carried out “to the fullest extent possible.” Scherr v. Volpe, 466 F.2d 1027, 1031 (7th Cir. 1972). In light of these statements, we feel compelled to hold that an agency’s decision should be subjected to a review on the merits to determine if it is in accord with the substantive requirements of NEPA. The review should be limited to determining whether the agency’s decision is arbitrary or capricious. “The court is not empowered to substitute its judgment for" }, { "docid": "22817477", "title": "", "text": "construed the latter exception very narrowly: “The legislative history of the Administrative Procedure Act indicates that it is applicable in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Here, the substantive requirements of NEPA, which we have discussed above, provide law for the courts to apply in reviewing agency decisions. See generally Recent Developments, 60 Georgetown L.J. 1101 (1972) ; The Supreme Court, 1970 Term, 85 Harv.L.Rev. 315-326 (1971). . The District of Columbia Circuit in Calvert Cliffs’ Coordinating Committee v. U. S. Atomic Energy Commission, 449 F.2d 1109, 1115 (D.C.Cir.1971), stated: “The reviewing courts probably cannot reverse a substantive decision on .its merits, under Section 101, unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental value.” This position was reiterated in Natural Resources Council, Inc. v. Morton, 458 F.2d 827, 838 (D.C.Cir.1972). Nothing in Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783 (D.C.Cir.1971), indicates a departure from the principles enunciated in Calvert Cliffs. While the question of judicial review on the merits was not at issue in Seaborg, the court’s opinion at 787 indicated reliance on Calvert Cliffs for the proposition that limited review was appropriate. In light of these cases, the contrary decision of the District of Columbia District Court in Environmental Defense Fund v. Hardin, 325 F.Supp. 1401 (D.D.C.1971), carries little weight. The Second Circuit in Scenic Hudson Preserv. Conf. v. Federal Power Com’n, 453 F.2d 463, 468-469 (2nd Cir. 1971), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1972) (Douglas, J., dissenting), reviewed the merits of a Federal Power Commission decision to determine if it was in compliance with NEPA. A reading of Judge Oakes’ dissent, 453 F.2d at 482, as well as the dissent of Mr. Justice Douglas from the order denying certiorari, reveals that the only point in controversy was whether a standard of review stricter than the arbitrary or capricious test should have been used. Similarly, a three-judge court" }, { "docid": "5982837", "title": "", "text": "possible under its other statutory obligations — consider alternatives to its actions which would reduce environmental damages. That principle establishes that consideration of environmental matters must be more than a pro forma ritual.” Calvert Cliffs’, supra, 449 F.2d at 1128 (emphasis in original). Cf. Nat’l Helium Corp. v. Morton, 486 F.2d 995, 1001-1002 (10th Cir. 1973); Conservation Society of Southern Vermont v. Secretary of Transportation, supra, 362 F.Supp. at 632-636. Although the Second Circuit has yet to pas's on this exact issue, it appears that if the EIS survives this strict scrutiny, the reviewing court cannot extend its strict scrutiny to the agency’s substantive decision to proceed with the project despite the impacts considered in the proeedurally adequate EIS. Under both the Administrative Procedure Act, as explicated in Overton Park, and section 101 of NEPA, as explicated in Calvert Cliffs’, an agency’s decision to proceed with a project may be set aside upon review of its merits only when the decision is arbitrary or capricious or an abuse of discretion, as when the decision displays such callous disregard of the environmental considerations expressed in the EIS as to support an inference of bad faith on the part of the agency in deciding nonetheless to proceed with the project. See, e. g., Sierra Club v. Froehlke, 486 F.2d 946, 951-953 (7th Cir. 1973); Silva v. Lynn, 482 F.2d 1282, 1283 (1st Cir. 1973); Conservation Council of North Carolina v. Froehlke, 473 F.2d 664, 665 (4th Cir. 1973); Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1281 (9th Cir. 1973); Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 298-300 (8th Cir. 1972), injunction denied, 409 U.S. 1072, 93 S.Ct. 1072, 34 L.Ed.2d 661; Sierra Club v. Froehlke, 359 F.Supp. 1289, 1332-1334 (S.D.Tex. 1973); City of New York v. United States, supra, 344 F.Supp. at 939-940. Cf. Scenic Hudson Preserv. Conf. v. Federal Power Commission, 453 F.2d 463, 468, 481 (2d Cir. 1971), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1971). IV. DEFENDANTS’ COMPLIANCE WITH NEPA Plaintiff has attacked defendants’ compliance with NEPA on many" }, { "docid": "11350747", "title": "", "text": "relatively easy and inexpensive for a compromise to be reached. CONCLUSIONS OF LAW NATIONAL ENVIRONMENTAL PROTECTION ACT NEPA has been the subject of much litigation since its enactment by Congress in 1969. It is well settled that it imposes upon administrative agencies of the United States government both procedural and substantive requirements which must be carried out prior to the commitment of federal money to a particular project. See e. g. Calvert Cliffs’ Coordinating Committee, Inc. v. United States Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971). The broad purpose of the Act is to require administrative agencies which are involved in the process of developing a project to consider the environmental impact of their actions during the decision-making process. Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289 (8th Cir.) cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1972). Substantive requirements have been found in Section 101 of the Act and procedural requirements in Section 102. Environmental Defense Fund, Inc. v. Corps of Engineers, 492 F.2d 1123 (5th Cir. 1974); Calvert Cliffs’, supra. The distinction between substance and procedure is important when viewed in terms of the Court’s power to review agency action. When an attack is made upon an agency’s decision to proceed with a particular project Court review is very limited. EDF v. COE, 492 F.2d at 1139. As stated by Judge J. Skelly Wright in Calvert Cliffs’ at page 1112: Thus the general substantive policy of the Act is a flexible one. It leaves room for a responsible exercise of discretion and may not require particular substantive results in particular problematic instances. NEPA does not require that a particular decision be reached, but only that all environmental factors be explored prior to reaching that decision. Scenic Hudson Preservation Conference v. Federal Power Commission, 453 F.2d 463 (2d Cir. 1971). The substantive decision of the agency is unreachable under NEPA as long as the agency does not abuse its discretion and its decision is not arbitrary. Calvert Cliffs’, supra. On the other hand whether or not an agency fulfilled the" }, { "docid": "22564532", "title": "", "text": "(E.D.N.Y.1972). . For example, even if permits have been issued by the Atomic Energy Commission for the construction of nuclear power plants, and the plants were constructed prior to January 1, 1970, impact statements must be prepared and circulated by the AEC before it issues operating licenses for the plants. Izaak Walton League of America v. Schlesinger, 337 F.Supp. 287, 294-295 (D.D.C.1971); see Calvert Cliffs’ Coordinating Committee v. United States Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1127-1129 (1971). . Courts and commentators have differed whether NEPA creates a right assertable by private plaintiffs to challenge the ultimate decision to proceed with a project as originally planned. Compare, e. g., Environmental Defense Fund, Inc. v. Corps of Engineers of United States Army, 470 F.2d 289 (8th Cir.); Calvert Cliffs’ Coordinating Committee, Inc., v. United States Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971); State of Delaware v. Pennsyln. 11 (D.Del.1971); Hanks & Hanks, supra note 7; Yannacone, National Environmental Policy Act of 1969, 1 Envir. Law 8 (1970), with Scenic Hudson Preservation Conference v. FPC, 453 F.2d vania New York Central Transportation Company, 323 F.Supp. 487, 494 463, 481 (2d Cir. 1971), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1972); Upper Pecos Association v. Stans, 452 F.2d 1233, 1236 (10th Cir. 1971), cert. granted, 406 U.S. 944, 92 S.Ct. 2040, 32 L.Ed.2d 330 (1972); Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F.Supp. 916 (N.D.Miss.1972); Conservation Council of North Carolina v. Froehlke, 340 F.Supp. 222, 225-226,228 (M.D.N.C.1972)." }, { "docid": "1019208", "title": "", "text": "carry out the substantive requirements of the Act, we believe that courts have an obligation to review substantive agency decisions on the merits NEPA is silent as to judi cial review, and no special reasons appear for not reviewing the decision of the agency. To the contrary, the prospect of substantive review should improve the quality of agency decisions and should make it more likely that the broad purposes of NEPA will . be realized.” Environmental Defense Fund v. Corps, of Engineers of the United States Army, 470 F.2d 289 (8th Cir. 1972) . The Eighth Circuit later elaborated in Environmental Defense Fund v. Froehlke, 473 F.2d 346 (8th Cir. 1972) where it stated: “The review is a limited one for the purpose of determining whether the agency reached its decision after a full, good faith consideration of environmental factors made under the standards set forth in §§ 101 and 1Ó2 of NEPA; and whether the actual balance of costs and benefits struck by the agency according to these standards was arbitrary or clearly gave insufficient weight to environmental factors.” Accord, Conservation Council of North Carolina v. Froehlke, 473 F.2d 664 (4th Cir. 1973); Calvert Cliffs’ Coordinating Comm. v. United States Atomic Energy Comm’n, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971); Lathan v. Volpe, 350 F.Supp. 262 (W.D.Wash.1972). The Fourth Circuit cited the above quotation when it held that courts do have the authority to inquire into substantive decisions. Conservation Council of North Carolina v. Froehlke, 473 F.2d 664 (4th Cir. 1973), rev’g on rehearing, [4 ERC 1044] (4th Cir. 1972), rev’g 340 F.Supp. 222 (M.D.N.C.1972). The Fourth Circuit, after reiterating the Eighth Circuit quote from Froehlke further stated: “We think the District Court must engage in a ‘substantial inquiry’ to determine ‘whether there has been a clear error of judgment.’ ” The District of Columbia Circuit appears to follow the Fourth and Eighth Circuits’ reasoning. See Calvert Cliffs’ Coordinating Comm. v. United States Atomic Energy Comm’n, 146 U.S.App. D.C. 33, 449 F.2d 1109 (1971), while the Fifth Circuit has rejected this approach, taking the position the Court’s only duty" }, { "docid": "1019209", "title": "", "text": "insufficient weight to environmental factors.” Accord, Conservation Council of North Carolina v. Froehlke, 473 F.2d 664 (4th Cir. 1973); Calvert Cliffs’ Coordinating Comm. v. United States Atomic Energy Comm’n, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971); Lathan v. Volpe, 350 F.Supp. 262 (W.D.Wash.1972). The Fourth Circuit cited the above quotation when it held that courts do have the authority to inquire into substantive decisions. Conservation Council of North Carolina v. Froehlke, 473 F.2d 664 (4th Cir. 1973), rev’g on rehearing, [4 ERC 1044] (4th Cir. 1972), rev’g 340 F.Supp. 222 (M.D.N.C.1972). The Fourth Circuit, after reiterating the Eighth Circuit quote from Froehlke further stated: “We think the District Court must engage in a ‘substantial inquiry’ to determine ‘whether there has been a clear error of judgment.’ ” The District of Columbia Circuit appears to follow the Fourth and Eighth Circuits’ reasoning. See Calvert Cliffs’ Coordinating Comm. v. United States Atomic Energy Comm’n, 146 U.S.App. D.C. 33, 449 F.2d 1109 (1971), while the Fifth Circuit has rejected this approach, taking the position the Court’s only duty is to ascertain whether the procedural requirements under NEPA have been met, and that courts need not engage in the “substantial inquiry” required by other Circuits. Pizitz v. Volpe, [4 ERC 1195] (Md.Ala.1972), aff’d, 467 F.2d 208 (5th Cir. 1972). The Eighth Circuit also stated that courts, while reviewing the substantive decisions could not substitute their own judgment for that of the agency. Therefore, as this court examines the merits of this case, it will do so with an eye to determine whether the federal defendants gave adequate consideration to environmental factors and whether or not their decision to proceed was arbitrary and capricious. THE ENVIRONMENTAL IMPACT STATEMENT The plaintiffs contend that the EIS filed by the Corps does not comply with the requirements of NEPA. Having so failed to comply with this Act, they contend that any decision which the Corps made could not have been made with full consideration of all environmental factors, and that its decision to proceed with the project was therefore arbitrary and capricious. 42 U.S.C. § 4332(2) (C) of" }, { "docid": "921819", "title": "", "text": "L.Ed.2d 261 (1972); National Helium Corp. v. Morton, 455 F.2d 650 (10th Cir. 1971); Calvert Cliffs’ Coordinating Comm., Inc. v. Atomic Energy Comm’n., 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971). . National Forest Preservation Group v. Butz, 485 F.2d 408, 412 (9th Cir. 1973). This was, in fact, one of the few cases in which the failure to adhere strictly to the timing requirements of NEPA was excused; it is readily distinguishable from the situation before us. In that case, the failure to prepare an EIS occurred at a low administrative level. We held that there had been no prejudicial failure to comply with NEPA since (1) a written explanation of the decision made without the benefit of the EIS demonstrated that environmental factors had been considered; and (2) the omission was corrected soon enough that the EIS was available to decision-makers at the higher levels. 485 F.2d at 412. . Some courts have refused to give NEPA retroactive application. See e. g., San Francisco Tomorrow v. Romney, 472 F.2d 1021 (9th Cir. 1973); Ragland v. Mueller, 460 F.2d 1196 (5th Cir. 1972); Brooks v. Volpe, 319 F.Supp. 90 (W.D.Wash.1970), rev’d on other grounds, 460 F.2d 1193 (9th Cir. 1972); Investment Syndicates, Inc. v. Richmond, 318 F.Supp. 1038 (D.Or.1970); Pennsylvania Environmental Council v. Bartlett, 315 F.Supp. 238 (M.D.Pa. 1970). Other courts, however, have held the provisions of the Act to be applicable to projects already initiated at its effective date. See, e. g., Indian Lookout Alliance v. Volpe, 484 F.2d 11 (8th Cir. 1973); Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973); Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289 (8th Cir. 1972); Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir.), cert. denied sub nom., Fugate v. Arlington Coalition on Transportation, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972); Calvert Cliffs’ Coordinating Comm., Inc. v. Atomic Energy Comm’n., 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971); Lathan v. Volpe, 455 F.2d 111 (9th Cir. 1971); Greene County Planning Bd. v. Federal Power Comm’n, 455 F.2d 412 (2d Cir." }, { "docid": "5982838", "title": "", "text": "such callous disregard of the environmental considerations expressed in the EIS as to support an inference of bad faith on the part of the agency in deciding nonetheless to proceed with the project. See, e. g., Sierra Club v. Froehlke, 486 F.2d 946, 951-953 (7th Cir. 1973); Silva v. Lynn, 482 F.2d 1282, 1283 (1st Cir. 1973); Conservation Council of North Carolina v. Froehlke, 473 F.2d 664, 665 (4th Cir. 1973); Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1281 (9th Cir. 1973); Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 298-300 (8th Cir. 1972), injunction denied, 409 U.S. 1072, 93 S.Ct. 1072, 34 L.Ed.2d 661; Sierra Club v. Froehlke, 359 F.Supp. 1289, 1332-1334 (S.D.Tex. 1973); City of New York v. United States, supra, 344 F.Supp. at 939-940. Cf. Scenic Hudson Preserv. Conf. v. Federal Power Commission, 453 F.2d 463, 468, 481 (2d Cir. 1971), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1971). IV. DEFENDANTS’ COMPLIANCE WITH NEPA Plaintiff has attacked defendants’ compliance with NEPA on many fronts. Besides challenging on its merits defendants’ substantive decision to proceed with 1-291, plaintiff contends that many procedural aspects of defendants’ preparation for that decision failed to comport with NEPA. The Court finds merit in three of plaintiff’s contentions of defendants’ noncompliance with NEPA’s procedural mandates. Each of these contentions relates to the adequacy of the 1-291 EIS: the authorship of the EIS, its discussion of alternatives, and its discussion of the impact of 1-291 on the air quality and sound levels of land adjacent to the expressway. Authorship of the EIS The title page of the final 1-291 EIS states “PREPARED BY THE CONNECTICUT DEPARTMENT OF TRANSPORTATION — BUREAU OF HIGHWAYS — OFFICE OF DESIGN.” This accurate representation of the actual authorship of the EIS reflects adherence to the FHWA’s November 24, 1970, interim guidelines on compliance with NEPA, see note 56, supra. These guidelines directed state highway departments to prepare both draft and final EIS’s where such were required by NEPA as a condition to FHWA funding of a highway. PPM 90-1, which" }, { "docid": "23384914", "title": "", "text": "human environment was involved. As noted earlier, the District Court held that the standard of review to be applied is whether the negative determination by the agency was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. We are persuaded, however, that the administrative decision was not one of discretion such as administrative agencies have in innumerable matters and which is referred to in the general terms of § 706(2) (A) of the Administrative Procedure Act, 5 U.S.C.A. § 706(2) (A). NEPA’s specific requirements in § 102 clearly speak in mandatory terms, and do not leave the determination to administrative discretion. National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir.); Calvert Cliffs’ Coordinating Committee v. Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1114; Citizens for Reid State Park v. Laird, 336 F.Supp. 783, 788 (D. Me.); cf. Parker v. United States, 448 F.2d 793, 797 (10th Cir.), cert, denied sub nom. Kaibab Industries v. Parker, 405 U.S. 989, 92 S.Ct. 1252, 31 L.Ed.2d 455. This Court recently stressed that “[t]he sweep of NEPA is extraordinarily broad, compelling consideration of any and all types of environmental impact of federal action,” National Helium Corp. v. Morton, supra, 455 F.2d at 656, quoting the Calvert Cliffs’ opinion, supra 449 F.2d at 1122. Of course, there must be a deter-' mination whether the statute applies and some area of judgment is involved. However, we are convinced that the compass of the judgment to be made is narrow and that the determination must be reasonable in the light of the mandatory requirements and high standards set by the statute. See Save Our Ten Acres v. Kreger, 472 F.2d 463, 465 (5th Cir.); Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 424 (5th Cir.); Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 834; Scherr v. Volpe, 336 F.Supp. 886, 888 (W.D.Wis.), aff’d on other grounds, 466 F.2d 1027 (7th Cir.); Natural Resources Defense Council, Inc. v. Grant, 341 F.Supp. 356, 366-67 (E.D.N.C.); see also National Helium Corp. v. Morton, supra 458" }, { "docid": "12006564", "title": "", "text": "of review to be applied, the Court held that The standard of review to be applied here and in other similar cases is set forth in Citizens to Preserve Overton Park v. Volpe, supra, 401 U. S. [402] at 416, 91 S.Ct. [814] at 824, [28 L.Ed.2d 77]. The reviewing court must first determine whether the agency acted within the scope of its authority, and next whether the decision reached was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In making the latter determination, the court must decide if the agency failed to consider all relevant factors in reaching its decision, or if the decision itself represented a clear error in judgment. Where NEPA is involved, the reviewing court must first determine if the agency reached its decision after a full, good faith consideration and balancing of environmental factors. The court must then determine, according to the standards set forth in §§ 101(b) and 102(1) of the Act, whether “the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values.” Calvert Cliffs’ Coordinating Committee v. U.S. Atomic Energy Commission, supra, 449 F.2d at 1115. Id. at 300. The Fourth Circuit has expressly adopted the holding of the Eighth Circuit. Conservation Council of North Carolina v. Froehlke, 473 F.2d 664, 665 (4th Cir. 1973). The Fifth Circuit and the District of Columbia Circuit appear to be in accord. Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (5th Cir. 1973); Calvert Cliffs’ Coordinating Committee v. U. S. Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971). While this court has never considered the test or standard to be utilized in determining whether an environmental impact statement complies with NEPA and whether district courts have an obligation to review substantive agency decisions on the merits, the court has had an opportunity to discuss the importance of the National Environmental Policy Act, in particular, the requirements of Sections 101 and 102: Through the enactment of these procedural requirements the Congress has not only permitted but has" }, { "docid": "23031060", "title": "", "text": "Hudson Preservation Conf. v. F.P.C., 453 F.2d 463, 481 (2d Cir. 1971), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1973). Despite dicta in two prior decisions of this court, Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (5th Cir. 1973), and Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 425 (5th Cir. 1973), which indicated that substantive agency decisions under NEPA are not reviewable, the majority and better reasoned rule favors such review. We therefore hold that the broad and general provisions of Section 101 do delineate sufficiently definite standards to permit a meaningful, albeit limited, review; and that an agency’s ecological decisions under NEPA are not beyond APA scrutiny. Appellants urge that the trial judge’s legal ruling doubly prejudiced their rights, because he not only refused to review the Corps’ decision to proceed but also ruled out their tender of evidence which assertedly would have shown that (1) an arbitrarily low interest rate had been used to amortize dollar costs, (2) false assumptions had been included in the ecological-economic analysis, and (3) the Corps’ weighting of various ecological values was arbitrary and capricious. The exclusion of proof we hold now to be relevant, would ordinarily require reversal to permit its development. But as the facts developed below demonstrate, this ease cannot be cast in ordinary mold. The Administrative Procedure Act is, as its name implies, directed to agency action. The Act expressly excludes any grant of a right to judicial review of Congressional decisions. The question then becomes: Who made the final ecological-economic decision that caused the construction of this waterway to proceed —the Corps or Congress? If it was the Corps, then the matter must go back for further fact development. If it was the Congress, then no additional judicial consideration of the wisdom of that decision would be appropriate. Clearly, the Corps compiled the facts and produced the environmental impact statement. Clearly too, the Corps concluded its study and report with the recommendation that the project be constructed. Had the matter ended there, the answer would be obvious —" }, { "docid": "15509012", "title": "", "text": "Planning Board v. FPC, supra note 22, 455 F.2d at 421; Environmental Defense Fund v. TVA, 6 Cir., 468 F.2d 1164, 1178 (1972). See note 22 supra. . Six circuits have found that agency action in violation of the substantive provisions of NEPA may be enjoined. However, the action must be found to be arbitrary or capricious. See Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, 146 U.S.App.D.C. 33, 39, 449 F.2d 1109, 1115 (1971); Environmental Defense Fund v. Corps of Engineers, 8 Cir., 470 F.2d 289, 300 (1972); Sierra Club v. Froehlke, 7 Cir., 486 F.2d 946, 953 (1973); Conservation Council of North Carolina v. Froehlke, 4 Cir., 473 F.2d 664, 665 (1973); Silva v. Lynn, 1 Cir., 482 F.2d 1282, 1283 (1973); Jicarilla Apache Tribe of Indians v. Morton, 9 Cir., 471 F.2d 1275, 1281 (1973). Contra, National Helium Corp. v. Morton, 10 Cir., 455 F.2d 650 (1971). Thus an agency could not be found to have failed to plan comprehensively in violation of NEPA unless that failure was so gross as to be arbitrary and capricious. . See note 25 supra. . The court also found: The purpose of the Department of Interior policy with respect to resource development in the Northern Great Plains Areas is to insure that development does not proceed based solely on single purpose studies incapable of developing comprehensive information or by piecemeal actions which restrict future options. To fulfill that purpose the granting or approval of leases, special use permits and all types of rights-of-way across public lands, the delivery and sale of water and approval of mining plans relating to coal development in the Northern 'Great Plains areas will be held in abeyance pending the availability and analysis of the interim report from the NGPRP study or submitted to the Under Secretary of Interior for review and concurrence prior to execution. Fdg. 25, App. 241. . The Environmental Protection Agency has also recognized the need for cumulative environmental consideration of the Region. Exercising his statutory and regulatory duty to review and comment on major agency actions to which § 102(2)(C) applies, see" } ]

[ { "docid": "22429044", "title": "", "text": "newspaper they were rationally related to an article that itself was clearly entitled to the protection of the Fourteenth Amendment. Thornhill v. Alabama, supra. The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The conviction on count one must therefore be reversed. In its August 1968 issue, Kaleidoscope published a two-page spread consisting of 11 poems, one of which was entitled “Sex Poem.” The second count of petitioner’s conviction was for the dissemination of the newspaper containing this poem. The poem is an undisguisedly frank, play-by-play account of the author’s recollection of sexual intercourse. But, as the Both Court emphasized, “sex and obscenity are not synonymous. . . . The portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.” 354 U. S., at 487. A reviewing court must, of necessity, look at the context of the material, as well as its content. In this case, considering the poem’s content and its placement amid a selection of poems in the interior of a newspaper, we believe that it bears some of the earmarks of an attempt at serious art. While such earmarks are not inevitably a guarantee against a finding of obscenity, and while in this case many would conclude that the author's reach exceeded his grasp, this element must be considered in assessing whether or not the “dominant” theme of the material appeals to prurient interest. While “contemporary community standards,” Roth v. United States, 354 U. S., at 489, must leave room for some latitude of judgment, and while there is an undeniably subjective element in the test as a whole, the “dominance” of the theme is a question of constitutional fact. Giving due weight and respect to the conclusions of the trial court and to the Supreme Court of Wisconsin, we do not believe that it can be said that the dominant theme of this poem appeals to prurient interest. The judgment on the second count, therefore, must also be reversed." } ]

[ { "docid": "10673739", "title": "", "text": "law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which taken as a whole, do not have serious literary, artistic, political, or scientific value. The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, 408 U.S. [229], at 230 [92 S.Ct. 2245, 33 L.Ed.2d 312] (1972), quoting Roth v. United States, supra, 354 U.S. [476], at 489 [77 S.Ct. 1304, 1 L.Ed.2d 1498] (1957), (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of Memoirs v. Massachusetts, supra, 383 U.S. [413], at 419 [86 S.Ct. 975, 16 L.Ed. 2d 1] (1966). * * * # * “. . . If a state law that regu- lates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. . “We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under the second part (b) of the standard announced in this opinion, supra: (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in" }, { "docid": "10673717", "title": "", "text": "the Supreme Court in June, 1973. (1) The new constitutional requirements for valid obscenity statutes. Of course, it has long been recognized that motion pictures are within the free speech and free press guaranty of the First and Fourteenth Amendments. Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 96 L.Ed. 1098. However, obscenity is not protected by the First Amendment, Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304,1 L.Ed.2d 1498, and within carefully defined limits, the states may prohibit dissemination of obscenity. In this case we must determine whether the efforts to prohibit exhibition of the film are within those permissible limits. The Supreme Court on June 21, 1973, decided Miller v. California, 413 U.S. 15, 93 S.Ct. 2607; 37 L.Ed.2d 419. A conviction for mailing unsolicited obscene material under the California Penal Code was vacated and the case remanded for further proceedings not inconsistent with new First Amendment standards established by the opinion. In announcing the standards the Court stated, 413 U.S. at 23, 93 S.Ct. at 2614: “State statutes designed to regulate obscene materials must be carefully limited. . . . As a result we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the ap plicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which taken as a whole, do not have serious literary, artistic, political, or scientific value.” (emphasis added) (footnote omitted) •X- * * * -x- -x- “The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political,or" }, { "docid": "852833", "title": "", "text": "the case be held in abeyance with respect to the First Amendment issues to await the decision of the Supreme Court in the pending obscenity cases. Order accordingly. SUPPLEMENTAL OPINION Filed Dec. 31, 1974 MacKINNON, Circuit Judge: On December 7, 1972, this court issued an opinion disposing of the evidentiary issues presented by these appeals. That decision deferred action on the following issue: whether the eight magazines which formed the basis of appellants’ convictions were obscene and not within the free speech guarantees of the First Amendment pending the decisions in several obscenity cases then before the Supreme Court. Original Op., supra,, at 372. The decisions in those cases have since been issued. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993 (1973). We now dispose of the remaining issue. Miller, supra,, established the following three tests for determining whether a work is obscene: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. 413 U.S. at 24, 93 S.Ct. at 2615. Appellants are entitled to the benefit of any constitutional principle stated in Miller. See Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). Only Miller test (b) involves modifications of prior principles which would potentially benefit appellants. Appellants were convicted for violations of 18 U.S.C. § 1461 (mailing obscene matter) and § 1462 (interstate transportation of obscene matter). In Hamling, supra, the Court held that section 1461 was not unconstitutionally vague in light of the prior construction of that section in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and therefore the statute" }, { "docid": "947064", "title": "", "text": "context that was fairly described by the FCC as “titillating and pandering.” (J.A. 38) The principles of Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), are applicable, for commercial exploitation of interests in titillation is the broadcaster’s sole end. It is not a material difference that here the tone is set by the continuity provided by the announcer rather than, as in Ginzburg, by the presentation of the material in advertising and sale to solicit an audience. We cannot ignore what the Commission took into account'— that the announcer’s response to a complaint by an offended listener and his presentation of advertising for auto insurance jire suffused with leering innuendo. Moreover, and significantly, “Femme Forum” is broadcast from 10 a. m. to 3 p. m. during daytime hours when the radio audience may include children — perhaps home from school for lunch, or because of staggered school hours or illness. Given this combination of factors, we do not think that the FCC’s evaluation of this material infringes upon rights protected by the First Amendment. The FCC found Sonderling’s broadcasts obscene under the standards of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). The Supreme Court subsequently reformulated those standards in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), which sets out the following “basic guidelines for the trier of fact”: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. 413 U.S. at 24, 93 S.Ct. at 2615. In Huffman v. United States, 163 U.S.App.D.C. 417, 502 F.2d 419 (1974), we analyzed how the Miller standards deviate from those previously enunciated. Miller rejected the Memoirs" }, { "docid": "13613346", "title": "", "text": "the government first suggested or solicited the illegal shipments does not constitute entrapment. The defendant must show “mild persuasion or coercion” on the part of the government before he is entitled to an entrapment instruction. United States v. Humphrey, 670 F.2d at 156 (quoting United States v. Hill, 626 F.2d 1301, 1304 (5th Cir. 1980)). Bagnell has failed to meet this burden. The only showing made here is one of initial government contact and Bagnell’s enthusiastic willingness to sell the movies in question. IV. FIRST AMENDMENT It is undisputed that the first amendment does not protect obscene material from regulation or suppression by the government. See Roth v. United States, 354 U.S. 476, 483-85, 77 S.Ct. 1304, 1308-1309, 1 L.Ed.2d 1498 (1957); Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1026 (5th Cir. 1981), cert. denied,-U.S.-, 102 S.Ct. 1264, 71 L.Ed.2d 453 (1982). Although this basic proposition has been long established, it was not until the landmark decision in Miller v. California, 413 U.S. at 15, 93 S.Ct. at 2607, that any firm standards were developed to guide the determination of obscenity. In Miller the Supreme Court established a three-part obscenity test: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest ...; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Id. at 24, 93 S.Ct. at 2614 (citations omitted). In applying the first two parts of the Miller test the trier of fact is required to utilize contemporary community standards to determine whether the allegedly pornographic material appeals to the prurient interest and whether it depicts sexual activity in a patently offensive manner. In applying the third part of the Miller test to determine whether the materials possess serious value, however, the trier of fact is not supposed to rely upon contemporary community standards when evaluating the evidence. Smith v. United States, 431 U.S. 291," }, { "docid": "8395734", "title": "", "text": "later time. The lack of ad hoc findings in this case violates the principle of individualized fact-finding mandated by Bender. No more granular than the district court’s analysis of the condition, the probation officer’s rationale for the restriction was based solely on the character of Kelly’s previous convictions — the reasoning prohibited by this court in Davis. Deficient in these respects, the condition fails the requirement of reasonable relationship to the sentencing factors. Turning to the related contention that the proscription in question involves greater deprivation of liberty than is reasonably necessary and is overbroad in violation of Kelly’s First Amendment rights, we review the district court’s actions de novo. United States v. Asalati, 615 F.3d 1001, 1006 (8th Cir.2010). Notwithstanding broad discretion of the court to fashion special conditions of supervised release, “we are particularly reluctant to uphold sweeping restrictions on important constitutional rights.” United States v. Crume, 422 F.3d 728, 733 (8th Cir.2005). No one would dispute the well-established proposition that obscene speech is not covered by the First Amendment and may therefore be proscribed. See Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The mercurial test for defining obscenity is set forth in Miller v. California: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (internal quotation marks and citations omitted). It is likewise undisputed that “nudity alone is not enough to make material legally obscene.” Jenkins v. Georgia, 418 U.S. 153, 161, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). “[W]here a ban could apply to any art form that employs nudity, ... a defendant’s exercise of First Amendment rights [is] unconstitutionally circumscribed or chilled.” United States v. Loy, 237 F.3d 251, 266 (3d Cir.2000); see also" }, { "docid": "10673738", "title": "", "text": "countries into the United States and have been passed by a Customs Office of the United States Government at any port of entry.” Plaintiff claims that the Oklahoma Obscenity Laws under which it stands threatened with prosecution by Defendant are facially unconstitutional but, if not, would be unconstitutionally applied against it by Defendant as to the motion picture involved. Plaintiff relies on the recent United States Supreme Court decision of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) as announcing the current requirements or guidelines in respect to constitutionality of state obscenity laws. Miller provides that obscene material is unprotected by the First Amendment and then states: “. . . State statutes designed to regulate obscene materials must be carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, 390 U.S. [676], at 682-685 [88 S.Ct. 1302-1305, 20 L.Ed.2d 225] (1968). As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which taken as a whole, do not have serious literary, artistic, political, or scientific value. The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, 408 U.S. [229], at 230 [92 S.Ct. 2245, 33 L.Ed.2d 312] (1972), quoting Roth v. United States, supra, 354 U.S. [476], at 489 [77 S.Ct. 1304, 1 L.Ed.2d 1498] (1957), (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of Memoirs v." }, { "docid": "6118401", "title": "", "text": "that the FCC changed its position from an earlier reliance on the efficacy of content-neutral lockboxes to the adoption of the more restrictive rules at issue here, and that this change in agency position violates the Administrative Procedure Act (\"APA”), 5 U.S.C. §§ 551-706. Joint Brief for Petitioners at 24, 33. Petitioners' reliance on the APA, however, is misplaced, because Congress has intervened and mandated the more restrictive alternative adopted by the Commission. See, e.g., INS v. Chadha, 462 U.S. 919, 955, 103 S.Ct. 2764, 2786, 77 L.Ed.2d 317 (1983) (Congress may \"legislatively alter[] or revoke[]” its \"delegation of authority” (footnote omitted)). Congress’ decisions arc exempt from the requirements of the APA. 5 U.S.C. § 551(1). To require an agency to justify its change in position taken at the express direction of Congress would be tantamount to subjecting the legislative decision itself to the APA. . In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the Supreme Court announced a three-part test for determining whether material is \"obscene,” and therefore unprotected by the First Amendment: “(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable ... law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.\" Id. at 24, 93 S.Ct. at 2614 (internal quotes and citations omitted). Thus, for example, “[p]atently offensive representations or descriptions of ultimate sexual acts, ... masturbation, excretory functions, and lewd exhibition of the genitals” could be considered obscene, unless they had “serious literary, artistic, political, or scientific value.” Id. at 25-26, 93 S.Ct. at 2615-16. The Court in Miller thus essentially \"isolate[d] ‘hard core' pornography from expression protected by the First Amendment.” Id. at 29, 93 S.Ct. at 2617. The FCC, on the other hand, defines \"indecent” material as material \"that describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary" }, { "docid": "8395735", "title": "", "text": "be proscribed. See Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The mercurial test for defining obscenity is set forth in Miller v. California: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (internal quotation marks and citations omitted). It is likewise undisputed that “nudity alone is not enough to make material legally obscene.” Jenkins v. Georgia, 418 U.S. 153, 161, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). “[W]here a ban could apply to any art form that employs nudity, ... a defendant’s exercise of First Amendment rights [is] unconstitutionally circumscribed or chilled.” United States v. Loy, 237 F.3d 251, 266 (3d Cir.2000); see also United States v. Simons, 614 F.3d 475, 483 (8th Cir.2010) (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 208-12, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975)). Guided by this principle, we recently invalidated a special condition of supervised release prohibiting the defendant, a registered sex offender, from possessing “any material, legal or illegal, that contains nudity or that depicts or alludes to sexual activity or depicts sexually arousing material.” Simons, 614 F.3d at 483. We were concerned with the breadth of such a provision, which, if applied mechanically, would prohibit the defendant from “viewing a biology textbook or purchasing an art book that contained pictures of the Venus de Milo, Michelangelo’s David, or Botticelli’s Birth of Venus, all of which depict nudity.” Id. We also rejected the suggestion, urged by the government, that we could entrust the task of curing constitutional infirmity for each individual application of the condition to the probation office. Id. at 485. Our decision in Simons alone would be fatal to special condition 15. The language of special provision 15" }, { "docid": "3314692", "title": "", "text": "be paid great deference by reviewing courts,” Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723 (1964); Bastida v. Henderson, 5 Cir., 1973, 487 F.2d 860, 863. Our task here, therefore, “is not to substitute [our] judgment as to probable cause, but only to determine whether there was a substantial basis for the magistrate’s determination . .” United States v. Fuller, 4 Cir., 1971, 441 F.2d 755, 759. III. Probable Cause of Obscenity Supported Issuance of the Warrant In Miller v. California, supra, the Supreme Court reaffirmed the principle established in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) that the First Amendment does not protect obscene material and announced the following “basic guidelines for the trier of fact” on the issue of obscenity: “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable . . . law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” (citations omitted) 413 U.S. at 24, 93 S.Ct. at 2615. The Court also gave “a few plain examples of what a statute could define for regulation under part (b) of the standard announced in this opinion . . . : (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibitions of the genitals.” Id., 413 U.S. at 25, 93 S.Ct. at 2615. Following Miller, in Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642, the Supreme Court stressed again that it is not sexual conduct or nudity alone which renders a film obscene, but rather the manner in which the movie depicts a sexually explicit subject. As the district court noted, “both factors (a)" }, { "docid": "23054498", "title": "", "text": "materials and aiding and abetting in contravention of 18 U.S.C. §§ 1461 and 1462. Section 1461 prohibits knowingly using the mail to send any “obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance.” Section 1462 prohibits the knowing use of “any express company or other common carrier or interactive computer service ... for the carriage in interstate or foreign commerce” of “any obscene, lewd, lascivious, or filthy book, pamphlet, picture, [or] motion-picture film[.]” In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the Supreme Court read the terms “obscene, lewd, lascivious, or filthy” used in §§ 1461 and 1462, to refer to the general prohibition of “obscene” materials. To determine whether a work is obscene, the prosecution must establish that (a) “ ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest,’ ” (b) “ 'the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law,’ ” and (c) “ ‘the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’ ” Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (internal citations omitted). This third-prong analysis has become known as the Miller test. The prosecution has the burden of proving each element of the Miller test. Pope v. Illinois, 481 U.S. 497, 507-08, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987). The Ragsdales argued in their motions for judgment of acquittal that the prosecution did not meet its burden of proof of establishing beyond a reasonable doubt that the materials in question are obscene. Because the prosecution did not establish this essential element of their offenses, the Ragsdales charged that their motions for judgment of acquittal should have been granted. For the reasons that follow, we disagree. Viewing the evidence in the light most favorable to the verdict, a reasonable trier of fact could conclude that the evidence was sufficient to prove beyond a reasonable doubt that the materials were obscene, and therefore," }, { "docid": "9734810", "title": "", "text": "that the regulatory system now in place is an impermissible taking of Carlin’s property in violation of the Fifth Amendment. See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 123-28, 98 S.Ct. 2646, 2659-61, 57 L.Ed.2d 631 (1978); Metropolitan Transp. Auth. v. ICC, 792 F.2d 287 (2d Cir.), cert. denied, — U.S. -, 107 S.Ct. 669, 93 L.Ed.2d 721 (1986). . “[T]he amendment deletes the terms \"lewd, lascivious, filthy\" from the bill, in accordance with Supreme Court cases limiting the regulation of speech to obscene or indecent language to the extent such regulation is permitted by the Constitution. See FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978); Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Thus, an earlier case cited by Mr. Bliley, Manual Enterprises v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962), was decided without the benefit of more recent Supreme Court refinements of first amendment protections and, therefore, reference to that case does not authorize the Federal Communications Commission to regulate beyond constitutional boundaries.” 129 Cong.Rec. E5,966 (daily ed. Dec. 14, 1983) (statement of Rep. Kastenmeier). . In Miller the Supreme Court explained that before material may be found to be unprotected obscene speech, the trier of fact must conclude that: “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest ... [;] the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and ... the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. 413 U.S. at 24, 93 S.Ct. at 2615 (citations omitted). The Court further observed that \"no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core’ sexual conduct_” Id. at 27, 93 S.Ct. at 2616. . “I would like to take issue with the restrictive interpretation by my colleague of the regulations to be issued by the" }, { "docid": "8139660", "title": "", "text": "therefore find that the district court did not abuse its discretion in deciding plaintiffs’ claims on their merits. PLAINTIFFS’ CONSTITUTIONAL CHALLENGES I. The Definition of Obscenity in House Bill 626 Unconstitutionally Includes Protected First Amendment Expression. A. The judicial effort to find an acceptable definition for obscenity constitutes one of the longest and most arduous struggles in the history of American jurisprudence. After employing several different definitions, the Supreme Court finally adopted a three-part test in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Under the Miller test, speech is obscene and thus not protected under the first amendment if three guidelines are satisfied: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. 413 U.S. at 24, 93 S.Ct. at 2615 (citations omitted). Despite the continued adherence to the Miller test, few would disagree with the view that only a “dim and uncertain line” separates obscenity from constitutionally protected speech. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 637, 9 L.Ed.2d 584 (1963). As Justices Brennan, Stewart and Marshall remarked, “one cannot say with certainty that material is obscene until at least five members of [the Supreme] Court, applying inevitably obscure standards, have pronounced it so.” Jenkins v. Georgia, 418 U.S. 153, 164-65, 94 S.Ct. 2750, 2757, 41 L.Ed.2d 642 (1974) (Brennan, Stewart and Marshall, JJ., concurring), quoting Paris Adult Theatre I v. Slaton, 413 U.S. 49, 92, 93 S.Ct. 2628, 2652, 37 L.Ed.2d 446 (1973) (Brennan, J., dissenting). Yet, on one side of the Miller line, speech is entitled to the highest form of protection afforded by our laws and constitution, while, on the other side, speech that is held obscene may be punished as a crime. Because of the inevitable uncertainty as to where the line will" }, { "docid": "23630506", "title": "", "text": "One and Three, and 120 months on Count Two, to run concurrently. The court also imposed a lifetime period of supervised release. II. Obscenity has no protection under the First Amendment. See United States v. Williams, — U.S. -, 128 S.Ct. 1830, 1835-36, 170 L.Ed.2d 650 (2008) (citing Roth v. United States, 354 U.S. 476, 484-85, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)). In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the Supreme Court articulated a three-part test to guide a jury’s determination whether material is obscene, which considers: “(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Id. at 24, 93 S.Ct. 2607 (internal quotation marks and citations omitted). The three-part Miller test is still the operative framework used to evaluate obscenity. See Ashcroft v. Free Speech Coal, 535 U.S. 234, 246, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). Almost a decade after Miller, the Supreme Court first addressed a challenge to a statute prohibiting child pornography in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), and held that the government may constitutionally prohibit the creation or promotion of pornography featuring real children even though it does not meet the Miller obscenity standard. In 1996, in response to technological developments, Congress passed the Child Pornography Prevention Act (“CPPA”), which extended the definition of child pornography to cover any visual image that “is, or appears to be, of a minor engaging in sexually explicit conduct” or has been promoted in a manner that “conveys the impression” of a minor engaging in sexually explicit conduct. 18 U.S.C. § 2256(8)(D) (1996) (repealed 2003). The Court in Free Speech Coal, struck down provisions of the CPPA as unconstitutionally overbroad because these provisions prohibited speech that did not meet the" }, { "docid": "17724234", "title": "", "text": "any questions regarding this matter you should direct them to Mr. P. J. Butchko. Much material excluded to date at M.C.I. has been prohibited on the basis of its allegedly obscene nature. Paragraph 4 of the Court’s order requires the application of “applicable constitutional criteria as established by the United States Supreme Court.” The Special Master, accustomed as he is to the relative certainty provided by the language of the Uniform Commercial Code and the Bankruptcy Act, approaches the task of distilling workable criteria from the language of the Supreme Court’s opinions in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), and Miller v. California, 413 U.S. 15, 93 S.Ct. 2607,37 L.Ed.2d 419 (1973), inter alia, with some trepidation. The Supreme Court in Miller, supra, announced the following basic guidelines: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, (citations omitted); (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. 413 U.S. 15 at 24, 93 S.Ct. 2607 at 2615, 37 L.Ed.2d 419 at 431. Miller changed two important aspects of the law announced by earlier cases. First, contemporary community standards which were thought under Roth and Memoirs to be national standards were narrowed to local standards. (Miller itself utilized a statewide community for its local community.) Second, the “utterly without redeeming social value” test of Memoirs was rejected and replaced by that of without “serious literary, artistic, political, or scientific value.” Although Miller may be read as increasing permissible state control of obscenity, there is a strong theme running throughout the majority opinion that only “hard-core” pornography is meant to be banned. Having said this, the Special Master must acknowledge that in making his investigation and in reaching his conclusions with respect to the nature of material" }, { "docid": "23630505", "title": "", "text": "pornography from the internet downloaded onto his computer, many portraying children under the age of six. There were images of prepubescent children being anally and vaginally penetrated by adult males, and pictures depicting bestiality with females as young as six years of age. Schales also transferred images from his digital camera to his computer, which contained photo editing software. He used this software to manipulate images of himself, including some sexually explicit images, and obscene and sexually explicit images of minors that he had obtained from the internet. Schales produced morphed images of female minors engaged in sexually explicit conduct through this process. The grand jury indicted Schales for receiving or distributing material involving the sexual exploitation of minors (Count 1), possessing material involving the sexual exploitation of minors (Count 2), and receiving or producing a visual depiction of a minor engaging in sexually explicit conduct that is obscene (Count 3). A jury found Schales guilty of all three counts. The district court sentenced him to a term of incarceration of 210 months on Counts One and Three, and 120 months on Count Two, to run concurrently. The court also imposed a lifetime period of supervised release. II. Obscenity has no protection under the First Amendment. See United States v. Williams, — U.S. -, 128 S.Ct. 1830, 1835-36, 170 L.Ed.2d 650 (2008) (citing Roth v. United States, 354 U.S. 476, 484-85, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)). In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the Supreme Court articulated a three-part test to guide a jury’s determination whether material is obscene, which considers: “(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Id. at 24, 93 S.Ct. 2607 (internal quotation marks and citations omitted). The three-part Miller test is still the" }, { "docid": "13326438", "title": "", "text": "constitutional and statutory requirements of scienter. The test of obscenity governing at the time of the trial was that set forth by the plurality in Memoirs v. Massachusetts, 1966, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1: “. . . three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” 383 U.S. at 418, 86 S.Ct. at 977, 16 L.Ed.2d at 5-6. The appellants do not contend that the charge given by the district court was inconsistent with that definition. Rather, they contend that the United States failed to establish the obscenity of the materials in question. We have examined the record and exhibits and find that the jury could reasonably find, as it did, that the materials were obscene under the Memoirs standard. After the appellants had been convicted, however, and while this appeal was pending, the Supreme Court decided Miller v. California, 1973, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, • and its companion cases. The Miller reformulation of the test of obscenity provides : “The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U.S. at 24, 93 S.Ct. at 2615, 37 L.Ed.2d at 431 (citations omitted). We find no basis for believing that the defendants would have fared better had they been tried under this standard of obscenity. See Hamling v. United States, 1974, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, 611. The appellants further contend that their conviction as to" }, { "docid": "16649548", "title": "", "text": "v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, — U.S.-, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984), \"the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles____ The predominance of factors favoring de novo review is even more striking when the mixed question implicates constitutional rights.” Id. at 1202-03. . Three of the teachers disapproved of the speech as \"inappropriate” for a high school assembly. The fourth found nothing offensive about it. . . ., ,, , . ,. .. 4. There is no evidence m the record indicating that any students found the-speech to be offen sive. Fraser was the only student to testify. . It is well settled that speech that is legally obscene does not qualify for First Amendment protection. See Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The District does not contend, however, that Fraser’s speech was obscene. To decide whether an expression is obscene, a trier of fact determines \"(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest ...; (b) whether the work de- . , , ,, rr Plcts °r describes, in a patently offensive way, se™al conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973) (citations omitted). . 18 U.S.C. § 1464 provides, \"Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both.” . Judge Kaufmann, writing for the court in Thomas, disagreed with Judge Newman that the issue of on-campus distribution of the newspaper was before the court. Judge Kaufmann, nevertheless, questioned the soundness of Judge Newman's view on the issue of on-campus distribution: \"We would hesitate, however, to conclude that the" }, { "docid": "947065", "title": "", "text": "protected by the First Amendment. The FCC found Sonderling’s broadcasts obscene under the standards of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). The Supreme Court subsequently reformulated those standards in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), which sets out the following “basic guidelines for the trier of fact”: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. 413 U.S. at 24, 93 S.Ct. at 2615. In Huffman v. United States, 163 U.S.App.D.C. 417, 502 F.2d 419 (1974), we analyzed how the Miller standards deviate from those previously enunciated. Miller rejected the Memoirs rule that material was condemnable only if “utterly without redeeming social value” and substituted a rule that permits prohibition if the material lacks “serious literary, artistic, political, or scientific value.” 413 U.S. at 24-25, 93 S.Ct. at 2615. In this respect, Miller expanded the range of material that can be found ob scene. However, it also contracted the definition of obscenity by limiting it to encompass only materials that “depict or describe patently offensive ‘hardcore’ sexual conduct specifically defined by the regulating state law.” 413 U.S. at 27, 93 S.Ct. at 2616. Accord Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 640 (1974); Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). The material broadcast by Sonderling, say Petitioners, is not “utterly without redeeming social value” and thus is not obscene under the Memoirs standards applied by the Commission. The licensee may have had a right to less demanding treatment under Memoirs had he refused to pay the forfeiture. However, he accepted the fine and waived his" }, { "docid": "6563975", "title": "", "text": "affidavit compels a different and more persuasive reading: Agents employ the Miller test in determining whether matter is obscene. When they reach an affirmative conclusion on that score they have “probable cause” to believe the district court will so rule as well. That explanation of the response is wholly unrefuted by YourStyle, and its first constitutional objection cannot prevail. 2. Seizure of Allegedly Obscene Materials Without Translation YourStyle’s second constitutional argument rests on sounder grounds. It claims that in determining whether Revolt is obscene the government has effectively failed to apply the prevailing constitutional standard expressed in Miller, 413 U.S. at 24, 93 S.Ct. at 2614 (emphasis added): The basic guidelines for the trier of fact [in determining obscenity] must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct. . .and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Each of the seized issues of Revolt was some 80 pages long. YourStyle claims and the government does not dispute that only 10% of the total “page area” comprised pictures, only one-half of which (5% of the “page area”) could arguably be considered obscene if viewed in isolation. Revolt!s text, the remaining 90% of the “page area,” is entirely in Swedish. YourStyle urges that it is patently impossible, consistent with the Miller mandate that the work be evaluated as a whole, for a customs agent to determine whether an untranslated copy of Revolt is obscene. Of course no translation of Revolt was made before the seizures. Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972) is particularly relevant here. When Kois was decided Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498 (1957) represented the applicable obscenity standard. Under Roth material could be considered obscene when (emphasis added): to the average person, applying contemporary community standards, the dominant theme of the material" } ]

[ { "docid": "23210798", "title": "", "text": "may be according to the number of their inhabitants as reported in the last preceding decennial census of the United States.” Art. IV, §1, ¶1. Similarly, the Pennsylvania Constitution requires that “[i]n each year following the year of the Federal decennial census, a Legislative Reapportionment Commission shall be constituted for the purpose of reapportioning the Commonwealth.” Art. 2, § 17(a). Several of the other States cited by Dr. Weber have comparable laws. Moreover, States use the population numbers generated by the federal decennial census for federal congressional redistricting. See Karcher v. Daggett, 462 U. S. 725, 738 (1983) (“[Bjecause the census count represents the ‘best population data available,’... it is the only basis for good-faith attempts to achieve population equality” (citation omitted». Thus, the appellees who live in the aforementioned counties have a strong claim that they will be injured by the Bureau’s plan because their votes will be diluted vis-á-vis residents of counties with larger “undercount” rates. Neither of appellants’ experts specifically contested Dr. Weber’s conclusion that the nine counties were substantially likely to lose population if statistical sampling were used in the 2000 census. See Wetrogan Declaration 92-99; Thompson Declaration 100-110. The experts’ general assertions regarding Dr. Weber’s methodology and data are again insufficient to create a genuine issue of material fact. For the reasons discussed above, see supra, at 332-333 and this page, this expected intrastate vote dilution satisfies the injury-in-fact, causation, and redressibility requirements. Accordingly, ap-pellees have again carried their burden under Rule 56 and have established standing to pursue this case. Ill We accordingly arrive at the dispute over the meaning of the relevant provisions of the Census Act. The District Court below examined the plain text and legislative history of the Act and concluded that the proposed use of statistical sampling to determine population for purposes of apportioning congressional seats among the States violates the Act. We agree. A An understanding of the historical background of the decennial census and the Act that governs it is essential to a proper interpretation of the Act’s present text. From the very first census, the census of" } ]

[ { "docid": "8824497", "title": "", "text": "based upon the State Attorney General’s preliminary view, “counting nonresidents is not warranted in law.” Id. On September 19, 2011, after much debate, “[t]he Commission adopted a final apportionment plan that computed the permanent resident base by excluding 16,458 active duty military and out-of-state university students from the 2010 census population of 1,330,301.” Id. at 290, 270 P.3d at 1020; Stip. Facts ¶ 32. That is, it chose “Extraction A,” primarily because of the certainty of that data. The resulting apportionment allocated “as to the senate 18 seats to Oahu County, 3 seats for Hawaii County, 3 seats for Maui County, and 1 seat for Kauai County.” Solomon, 126 Hawai’i at 290, 270 P.3d at 1020. The Commission filed this plan on September 26, 2011 (“the September 26, 2011 Plan”). Id.; Stip. Facts. ¶ 32. 3. The September 26, 2011 Plan is Challenged: Solomon v. Abercrombie; and Matsukawa v. State of Hawaii 2011 Reapportionment Commission On October 10, 2011, Solomon and the three members of the Hawaii County Democratic Committee filed a petition in the Hawaii Supreme Court, challenging the September 26, 2011 Plan. The next day, Hawaii County resident Michael Matsukawa filed a similar petition in the Hawaii Supreme Court. Stip. Facts ¶ 33. Among other claims, these petitions asserted that the Commission violated the State Constitutional requirement to base a reapportionment on “permanent residents” by failing to extract all non-resident military, their dependents, and non-resident students. Solomon’s petition asserted that the Commission knew that extracting only 16,000 non-residents would not trigger the loss of an Oahu-based senate seat, and that “the fear of Oahu’s loss of this senate seat was the driving force” for the extraction. Solomon, 126 Hawai’i at 290, 270 P.3d at 1020. They sought an order requiring the Commission to prepare and file a new reapportionment plan for the State legislature that uses a population base limited to “permanent residents” of the State of Hawaii. Stip. Facts ¶ 33. As far as we can discern, however, the parties did not raise constitutional equal protection arguments. On January 4, 2012, the Hawaii Supreme Court issued orders" }, { "docid": "8824476", "title": "", "text": "at this preliminary stage of the proceedings, the plaintiffs have not established a likelihood of success on the merits of their claim that the permanent resident population basis violates equal protection. Nor do the equities and public interest weigh in favor of an injunction that risks jeopardizing the primary election scheduled- for August 11, 2012, and even the general election scheduled for November 6, 2012. Although we recognize that the right to representation is fundamental, “a federal court cannot lightly interfere with or enjoin a state election.” Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.2003) (en banc) (per curiam). I. INTRODUCTION Hawaii reapportions its state legislative and federal congressional districts every ten years, after the decennial United States Census (“the Census”), based upon changes in population. See Haw. Const, art. IV, § 1. The Hawaii Constitution as amended in 1992 requires reapportionment of Hawaii’s legislative districts to be based upon “permanent residents,” id. § 4, as opposed to the Census’ count of “usual residents.” And to pass constitutional muster, any resulting reapportionment must comply -with the principles of “one person, one vote.” Reynolds v. Sims, 377 U.S. 533, 558, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (quoting Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963)). In this action, Plaintiffs Joseph Kostick, Kyle Mark Takai, David P. Brostrom, Larry S. Veray, Andrew Walden, Edwin J. Gayagas, Ernest Laster, and Jennifer Laster (collectively, “Kostick”) challenge aspects of the March 30, 2012 Supplement to the 2011 Reapportionment Commission Final Report and Reapportionment Plan (“the 2012 Reapportionment Plan”), which Hawaii has begun implementing for its 2012 primary and general elections. The 2012 Reapportionment Plan — upon direction from the Hawaii Supreme Court in Solomon v. Abercrombie, 126 Hawai’i 283, 270 P.3d 1013 (2012) — “extracted” 108,767 active-duty military personnel, military dependents, and university students from Hawaii’s reapportionment population base. Kostick claims that this extraction by itself, or the 2012 Reapportionment Plan’s subsequent apportionment of the resulting population base, violates the Equal Protection Clause of the Fourteenth Amendment and “one person, one vote” principles." }, { "docid": "8824535", "title": "", "text": "Kostick offered no suggested timetable to accomplish these tasks. Although Kostick’s counsel opined at the hearing that the task would be “mission difficult, not mission impossible,” we disagree. The above chronology leaves little doubt that, at this late date, there is no room for judicial intervention without significantly interrupting the election process. Spawning chaos rather than confidence in the election process is a result we cannot endorse. Absent compelling evidence that the election will not be interrupted, we find that the equities and public interest weigh decisively against granting the preliminary injunction. B. Count Two (Equal Protection Challenge: Mal-Apportionment) Count Two contends that the Commission violated the Equal Protection Clause by apportioning the State’s legislative districts unequally — a total deviation of over 44 percent off the ideal population for Hawaii’s Senate districts and over 21 percent for the House — after extracting the 108,-767 military personnel, military dependents, and students. Kostiek contends that the high deviations are inconsistent with the constitutional principle that “representative government in this country is one of equal representation for equal numbers of people.” Reynolds, 377 U.S. at 560-61, 84 S.Ct. 1362. This question is not new. The Commission has always acknowledged that complying with the Hawaii Constitution’s criteria that “no district shall extend beyond the boundaries of any basic island unit” as provided in Article IV, § 6 — i.e., avoiding canoe districts — may not be possible without relatively high deviations from a mathematical ideal. The issue has been “ever present in [Hawaii’s] reapportionment cases.” Gill, 316 F.Supp. at 1288. And the parties appear to agree that the choice is straightforward: Either keep Kauai as a single district (but cause large deviations) or require canoe districts (to balance populations equally). See Doc. No. 28-3, Pis.’ Mot. Ex. A, at 33 (2012 Reapportionment Plan, at 21). But we need not evaluate the merits of this claim now. It is undisputed that if preliminary relief were granted on Count Two — that is, even assuming that the 2012 Reapportionment Plan’s statewide deviations exceed constitutional limits — then redistricting must begin anew. Kostiek conceded at the" }, { "docid": "8824498", "title": "", "text": "Hawaii Supreme Court, challenging the September 26, 2011 Plan. The next day, Hawaii County resident Michael Matsukawa filed a similar petition in the Hawaii Supreme Court. Stip. Facts ¶ 33. Among other claims, these petitions asserted that the Commission violated the State Constitutional requirement to base a reapportionment on “permanent residents” by failing to extract all non-resident military, their dependents, and non-resident students. Solomon’s petition asserted that the Commission knew that extracting only 16,000 non-residents would not trigger the loss of an Oahu-based senate seat, and that “the fear of Oahu’s loss of this senate seat was the driving force” for the extraction. Solomon, 126 Hawai’i at 290, 270 P.3d at 1020. They sought an order requiring the Commission to prepare and file a new reapportionment plan for the State legislature that uses a population base limited to “permanent residents” of the State of Hawaii. Stip. Facts ¶ 33. As far as we can discern, however, the parties did not raise constitutional equal protection arguments. On January 4, 2012, the Hawaii Supreme Court issued orders in the Solomon and Matsukawa proceedings that invalidated the September 26, 2011 Plan as having disregarded Article IV, § 4 of the Hawaii Constitution. The Hawaii Supreme Court, among other things, ordered the Commission to prepare and file a new reapportionment plan that allocates members of the State legislature among the basic island units using a permanent resident population base. Stip. Facts ¶ 34. On January 6, 2012, the Hawaii Supreme Court issued Solomon — an opinion covering both the Solomon and Matsukawa proceedings. Id. ¶ 35. As for the requirement in Article TV, §§ 4 and 6, for the Commission to apportion the state legislature by using a “permanent resident” base, Solomon held that the requirement “mandate[s] that only residents having their domiciliary in the State of Hawaii may be counted in the population base for the purpose of reapportioning legislative districts.” Solomon, 126 Hawai’i at 292, 270 P.3d at 1022 (quoting Citizens for Equitable & Responsible Gov’t, 108 Hawai’i at 322, 120 P.3d at 221). To determine “the total number of permanent residents" }, { "docid": "8824547", "title": "", "text": "26. All persons extracted by the Commission were counted as part of the Hawaii population by the 2010 Census. 27. The State legislative reapportionment plan accepted by the Commission for public hearings and comment on August 3, 2011 (“August 2011 Plan”) did not extract from the 2010 Census count, any active duty military personnel, military dependents, or students. 28. No definition of “permanent residents” as that term is used in article IV of the Hawaii State Constitution is provided by the Hawaii State Constitution. 29. The Commission has recommended that the State legislature initiate changes in the Hawaii Constitution and statutes to clarify the definition of permanent residents for the reapportionment population base. 30. Residence locations could not be determined for some persons identified as non-permanent residents and the Commission, therefore, could not place those persons in particular census blocks for purposes of redistricting. These non-permanent residents were allocated proportionally to census blocks in their basic island unit, using a disaggregation method. The Commission then extracted those non-permanent residents from the census block to which they had been allocated. 31. For purposes of the disaggregation method referred to above, the following proportions were used: One person was extracted per 19.12 persons on Oahu One person was extracted per 137.8 persons on Hawaii One person was extracted per 337 persons on Maui One person was extracted per 300 persons on Lanai One person was extracted per 185 persons on Molokai One person was extracted per 131 persons on Kauai 32. On or about September 26, 2011, the Commission adopted and filed a reapportionment and redistricting plan for the State legislature (“2011 Final Reapportionment Plan”) that extracted 16,458 people from the 2010 Census count or population of 1,360,301 persons. An amended version of the 2011 Final Reapportionment Plan (amending staggered terms portion) was filed on October 13, 2011. 33. On October 10, 2011 and October 11, 2011, two original proceedings were filed in the Hawaii Supreme Court challenging the 2011 Final Reapportionment Plan. See Solomon et al. v. Abercrombie, et al., SCPW 11-0000732 (“Solomon”) and Matsukaiva v. State of Hawaii 2011 Reapportionment" }, { "docid": "8824523", "title": "", "text": "Hawaii’s methods need not have “ ‘[mathematical exactitude;’ ” rather Hawaii must simply employ procedures that “make an honest and good-faith effort to construct ... districts” in such a way that the number of permanent residents in each district are as “ ‘equal ... as is practicable.’ ” Gaffney v. Cummings, 412 U.S. 735, 744, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973) (quoting Reynolds, 377 U.S. at 577, 84 S.Ct. 1362). As noted in Bums, using a smaller group of individuals, such as registered voters, as the districting base is problematic — unless the method is adopted “as a reasonable approximation for,” and tracks the distribution of, a permissible population basis. 384 U.S. at 92-93, 95, 86 S.Ct. 1286. In other words, to show that the Commission’s methods were problematic, it is not enough for Kostick to show that it excluded some citizens from the reapportionment base: he must also show that the exclusion was egregious enough to result in an unequal distribution of the citizen population base among the various districts. At this preliminary injunction stage, Kostick fails to demonstrate that he will be likely to make this showing on the merits. Hawaii’s 2012 Reapportionment Plan extracts three non-resident groups: non-resident military personnel, their dependents, and non-resident university students. To extract non-resident military, Hawaii used the servicemember’s chosen state for .taxation to determine residency. Doc. No. 28-9, Pis.’ Mot. Ex. A at 10-11 (Office of Elections, Non-Permanent Population Extraction for 2011 Reapportionment and Redistricting — Addendum D-8 to D-9). This was a reasonable method of identifying a servicemember’s state of residence. Servicemembers are not excluded from residency. They are given an opportunity to identify their state of residence for the purposes of taxation. See Doc. No. 34-7, Defs.’ Ex. 17, at 1 (“Instructions of Certification of State of Legal Residence.”). By designating a state other than Hawaii as their state of taxation, servicemembers avoid paying Hawaii resident state taxes. Haw.Rev.Stat. § 235-7. Servicemembers are informed that state residency requires “physical presence ... with the simultaneous intent of making it your permanent home and abandonment of the old State of" }, { "docid": "8824563", "title": "", "text": "2327); Solomon, 126 Hawai'i at 285, 270 P.3d at 1015. Prior applications of a \"registered voter” population base were the subject of litigation and, as analyzed further in this Order, ultimately entail many of the same fundamental questions that arise in this action. See, e.g., Burns, 384 U.S. at 97, 86 S.Ct. 1286 (upholding a Hawaii apportionment plan based on registered voters that approximated a plan based on population); Travis v. King, 552 F.Supp. 554 (D.Haw.1982) (three-judge court) (striking a Hawaii apportionment plan based on registered voters, primarily because of insufficient justifications for wide disparities in allocation). Indeed, in Hawaii's 1991 reapportionment, the 1991 Reapportionment Commission utilized a population base of \"permanent residents” (extracting — similar to the present action — 114,000 non-resident military members and their families), despite the requirement of the Hawaii Constitution (pre1992 amendment) to use \"the number of vot ers registered in the last preceding general election” as the base. This approach was apparently adopted at least in part because of equal protection concerns. See Doc. No. 34-20, Defs.’ Ex. 30, at 3-6 (State of Hawaii 1991 Reapportionment Comm’n, Final Report and Reapportionment Plan, at 21-24); Solomon, 126 Hawai’i at 284-85, 270 P.3d at 1014-15. Likewise, the 2001 reapportionment (after the 1992 State Constitutional amendment) extracted non-resident military personnel, their dependents, and non-resident college students as \"non permanent.” Solomon, 126 Hawai’i at 286, 270 P.3d at 1016. . The percentage of the population of military and military families in Hawaii in 2010 is not clear from the record, but some data indicates as many as 153,124 military and military dependents. Doc. No. 28-12, Pis.’ Mot. Ex. D, at 13; Stip. Facts ¶ 6. This figure includes military members who are deployed — and thus are not counted as \"usual residents”— and their dependents who live here (and thus may indeed have been counted as \"usual residents”). As detailed below, the Commission eventually \"extracted” 42,322 active duty military personnel, and 53,115 of their associated dependents as \"non-permanent” Hawaii residents. Stip. Facts ¶¶ 8, 10. Regardless of the percentage, the military continues to constitute a significant and important" }, { "docid": "8824493", "title": "", "text": "deemed insufficient. “The Commission, at its' June 28, 2011 meeting, voted 8-1 to apportion the state legislature by using the 2010 Census count — without exclusion of nonresident military and dependents and nonresident students — as the permanent resident base.” Id. at 287, 270 P.3d at 1017. Commission staff provided the following explanation as to “permanent and non-permanent military residents.” The non-permanent resident extraction model used in 1991 and 2001 [reapportionments] relied on receiving location specific (address or Zip Code) residence information for the specific non-permanent residents to be extracted. In 2011, the data received from DMDC does not provide residence information for military sponsors nor does it provide specific breakdowns of permanent and non-permanent residents by location. This lack of specific data from DMDC does not allow the model used previously to be used at this time. Id. at 288, 270 P.3d at 1018 (square brackets in original). And so, an initial apportionment plan was developed and accepted by the Commission on or before August 3, 2011 that was based on 2010 Census figures. The parties have stipulated that “[t]he State legislative reapportionment plan accepted by the Commission for public hearings and comment on August 3, 2011 (‘August 2011 Plan’) did not extract from the 2010 Census count, any active duty military personnel, military dependents, or students.” Stip. Facts ¶ 27. The Chair of the Commission explains that this August 2011 Plan was “preliminarily accepted for the purpose of public hearings and comment,” because of the impending September 26, 2011 statutory deadline for a final plan and the statutory requirement of conducting public hearings. Doc. No. 39-6, V. Marks Decl. ¶ 7. This plan is apparently the August 2011 proposed reapportionment plan that Kostick seeks to have implemented. 2. The September 26, 2011 Plan Further proceedings followed the Commission’s June 28, 2011 decision to use 2010 Census figures, and its corresponding development of the August 2011 Plan. The Commission was provided with additional data from military sources on Hawaii’s “non-permanent military resident population and from Hawaii universities on non-permanent student resident population.” Solomon, 126 Hawai’i at 287, 270 P.3d" }, { "docid": "8824521", "title": "", "text": "and cannot be easily placed in specific census blocks. Therefore, the Commission decided to eliminate those transients which could be identified to a particular census block and which constituted the vast majority of transients included in the census counts: nonresident military.” Id. at 23. Since the efforts of the 1991 Commission, the state has diligently considered how • and whether other non-permanent resident groups could be removed from the population base. Subsequent commissions have considered excluding aliens, but have been unable to do so because of lack of data. See Doc. No. 34-21, Defs.’ Ex. 30, at 22 (2001 State of Hawaii Reapportionment Comm’n Reapportionment Plan, at A-226); Doc. No. 33-5, D. Rosenbrock Decl. ¶ 15 (discussing 2011 Commission). Although data regarding aliens was in short supply, the Commission in 2011 conscientiously renewed contacts with university officials and successfully obtained data to exclude non-resident students. Doc. No. 33-6, V. Marks Decl. ¶¶ 18, 20. Kostick nonetheless raises concerns that the state extracted military personnel, their dependents and students, but not illegal aliens, minors, federal workers, prisoners, institutionalized persons, and even the unemployed. Doc. No. 28-1 at 36-38, Mot. at 29-31. Several of these comparator groups are not relevant: Kostick does not seriously suggest that minors, the unemployed, and prisoners are not generally Hawaii residents who lack the “present intention of establishing [their] permanent dwelling place” in Hawaii. Haw.Rev.Stat. § 11-13(2). The Commission tried — but was unable — to get information regarding aliens, as discussed above. Kostick’s single, passing argument with reference to federal workers is unavailing: he presents no evidence as to the number of federal workers in Hawaii, nor does he seriously contend that the vast majority of these workers are anything but bona fide permanent residents. c) Implementation of Extraction Kostick claims that even if using a permanent resident base is a permissible aim, the extraction mechanism fails because it also eliminates some Hawaii citizens, such as Plaintiff Jennifer Laster, from the reapportionment basis. Doc. No. 28-1 at 39, Mot. at 32; Doc. No. 36 at 20, Reply at 15. In implementing redistricting using only permanent residents," }, { "docid": "8824475", "title": "", "text": "ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION; APPENDIX ‘A” The Hawaii Constitution specifies the use of permanent residents as the relevant population base in apportioning state legislative seats. In a 2012 decision, the Hawaii Supreme Court laid out the appropriate method for determining permanent residents by extracting non-resident military personnel and their dependents, and non-resident students from the base count. The Reapportionment Commission adopted a new plan to comply with that directive. This electoral challenge asks us to consider the constitutionality of the reapportionment under the Equal Protection Clause of the United States Constitution. We do so here in the context of a motion for a preliminary injunction requesting that we enjoin implementation of the 2012 Reapportionment Plan and enjoin conducting the upcoming elections under that plan. This challenge raises an issue of significant importance to Hawaii residents. Following a hearing on this matter on May 18, 2012, we conclude that the request for an injunction should be denied. In light of Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966), at this preliminary stage of the proceedings, the plaintiffs have not established a likelihood of success on the merits of their claim that the permanent resident population basis violates equal protection. Nor do the equities and public interest weigh in favor of an injunction that risks jeopardizing the primary election scheduled- for August 11, 2012, and even the general election scheduled for November 6, 2012. Although we recognize that the right to representation is fundamental, “a federal court cannot lightly interfere with or enjoin a state election.” Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.2003) (en banc) (per curiam). I. INTRODUCTION Hawaii reapportions its state legislative and federal congressional districts every ten years, after the decennial United States Census (“the Census”), based upon changes in population. See Haw. Const, art. IV, § 1. The Hawaii Constitution as amended in 1992 requires reapportionment of Hawaii’s legislative districts to be based upon “permanent residents,” id. § 4, as opposed to the Census’ count of “usual residents.” And to pass constitutional muster, any" }, { "docid": "8824501", "title": "", "text": "students from the 2010 Census population of “usual residents.” Stip. -Facts ¶¶ 8, 10, 14, 36. This extraction totaled 108,767 persons, resulting in an adjusted reapportionment population base of 1,251,534. Id. ¶ 37. The active duty military were extracted if they “declared a state other than Hawaii as their home state for income tax purposes,” and if they were included in the 2010 Census. Doc. No. 28-12, Pis.’ Mot. Ex. D, at 2-2. That is, they were extracted “based on military records or data denoting the personnel’s state of legal residence.” Stip. Facts ¶ 8. The extracted military family members were identified by associating them with their active duty military sponsor. In other words, the Commission extracted military dependents who were associated with or attached to an active duty military person who had declared a state of legal residence other than Hawaii. Stip. Facts ¶ 10. The military did not provide the Commission with any data regarding the military dependents’ permanent or non-permanent residency other than their association or attachment to an active duty military sponsor who had declared a state of residence other than Hawaii. Id. ¶ 12. The students were extracted solely on the basis of (a) payment of nonresident tuition, or (b) a home address outside of Hawaii. Id. ¶¶ 14, 18-19. The students were from the University of Hawaii System, Hawaii Pacific University, Chaminade University, and Brigham Young University (“BYU”) Hawaii. Id. ¶ 15. No other Hawaii universities provided data to the Commission. Id. ¶ 16. After extraction, the Commission reapportioned the adjusted population base of 1,251,534 “permanent residents” by dividing the base by 25 Senate seats and 51 House seats. Id. ¶ 37. This resulted in an ideal Senate district of 50,061 permanent residents, and an ideal House district of 24,540- permanent residents. Id. The Commission then reapportioned within the four basic island units as set forth in Article IV, § 6 of the Hawaii Constitution, and as guided by the criteria set forth in that provision. Under the 2012 Reapportionment Plan: (a) the largest Senate District (Senate District 8, Kauai basic island unit) contains" }, { "docid": "8824509", "title": "", "text": "injunction phase tracks the burden of proof at trial.” Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir.2011). The parties challenging state apportionment legislation bear the burden of proving disparate representation. Karcher v. Daggett, 462 U.S. 725, 730-731, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983). It falls on Kostick to show that he is likely to establish a constitutional violation at trial. IY. DISCUSSION Kostick makes a bifurcated equal protection challenge to Hawaii’s reapportionment plan. He first protests the extraction of non-resident military personnel, their dependents, and non-resident students. He argues that using a population base that does not include the extracted individuals violates equal protection. Next, even if such an extraction is allowed, Kostick argues that deviations in the 2012 Reapportionment Plan’s subsequent reapportionment of the resulting population base are constitutionally problematic. We now turn to these claims. A. Count One (Equal Protection Challenge: Population Basis) We first address the overriding question of constitutional injury, and conclude that Kostick has not demonstrated that he is likely to succeed on the merits. Even if Kostick were able to make this threshold showing, we find that the equities tip decisively in the Commission’s favor. The record shows that the remedy Kostick seeks would require postponement of the state primary election, an integral part of the electoral process, and even put the general election in jeopardy. 1. Likelihood of Success on the Merits Kostick argues that by seeking to apportion based only on a permanent resident basis, and extracting non-resident military, their dependents, and nonresident students from the apportionment population base, Hawaii violated the principle of equal representation. On this record, Kostick fails to meet his preliminary injunction burden. To begin, the Supreme Court has explicitly affirmed that a state may legitimately restrict the districting base to citizens, which in this case, corresponds to permanent residents. Discriminating among non-resident groups in the course of extraction may be problematic-yet, the record reveals that Hawaii extracted all non-resident populations that exist in sufficient numbers to affect the apportionment of districts, and regarding which it could obtain reliable data without discriminating among" }, { "docid": "8824494", "title": "", "text": "The parties have stipulated that “[t]he State legislative reapportionment plan accepted by the Commission for public hearings and comment on August 3, 2011 (‘August 2011 Plan’) did not extract from the 2010 Census count, any active duty military personnel, military dependents, or students.” Stip. Facts ¶ 27. The Chair of the Commission explains that this August 2011 Plan was “preliminarily accepted for the purpose of public hearings and comment,” because of the impending September 26, 2011 statutory deadline for a final plan and the statutory requirement of conducting public hearings. Doc. No. 39-6, V. Marks Decl. ¶ 7. This plan is apparently the August 2011 proposed reapportionment plan that Kostick seeks to have implemented. 2. The September 26, 2011 Plan Further proceedings followed the Commission’s June 28, 2011 decision to use 2010 Census figures, and its corresponding development of the August 2011 Plan. The Commission was provided with additional data from military sources on Hawaii’s “non-permanent military resident population and from Hawaii universities on non-permanent student resident population.” Solomon, 126 Hawai’i at 287, 270 P.3d at 1017. Commission staff thereafter developed its own “model” for the “extraction of non-permanent residents” for the 2011 reapportionment. Commission staff operated on the premise that non-permanent residents — active duty military who declare Hawaii not to be their home state and their dependents, and out-of-state university students — were to be identified according to the specific location of their residences within each of the four counties. Because the 2010 Census data and the university data did not include the residence addresses for all of the non-permanent active duty military residents and their dependents and the out-of-state university students, Commission staff identified three groups of non-permanent residents: Extraction A, Extraction B, and Extraction C. The groups were based on the level of “certainty in determining [the residents’] non-permanency and location.” Extraction A were residents whose specific locations were certain and included out-of-state university students with known addresses and active duty military, with “fairly certain non-permanent status,” living in military barracks. Extraction B included all residents in Extraction A, plus active duty military and their dependents," }, { "docid": "8824526", "title": "", "text": "establishing residency in Hawaii. Because, on this record, Hawaii does not resort to overbroad means to exclude non-resident servicemembers, its means of excluding servicemembers survive constitutional scrutiny. Cf. Burns, 384 U.S. at 95, 86 S.Ct. 1286 (noting that there was no attempt to disenfranchise the military by preventing them from becoming state residents). Next, the Commission presumes that all dependents of non-resident servicemembers are also non-residents. Kostick points to Jennifer Laster — and only to Jennifer Laster — to argue that this approach improperly eliminates residents and registered voters from the population base. Doc. No. 35-13, Defs.’ Ex. 44, at 15. This evidence is hardly sufficient-to show that Kostick is likely to be able to demonstrate that Hawaii’s exclusion is overbroad. The record shows otherwise — the military informed Hawaii in 1991 that in 98 percent of families of non-resident servicemembers, dependents had the same residency as that of the servicemember. Doc. No. 34-20, Defs.’ Ex. 30 at 3 (1991 State' of Hawaii Reapportionment Comm’n, Final Report and Reapportionment Plan, at 21), See also Doc. No. 35-12, U.S. Departments of Treasury and Defense, Supporting our Military Families: Best Practices for Streamlining Occupational Licensing Across State Lines at 3-4 (2012) (service-member spouses are far more likely to relocate than civilian spouses). Kostick presents no evidence that the status quo has changed, or that Jennifer Laster is not a member of a small minority of dependents who have a different residence- from that of the servicemember. Kostick certainly fails to show that the resulting districting scheme fails to equally apportion districts among citizens or permanent residents. Turning to the extraction of students, Hawaii extracted students from BYU Hawaii, Hawaii Pacific, Chaminade and the University of Hawaii System. Doc. No. 33-5, D. Rosenbrock Decl. ¶ 9. Other than noting that students from other universities were not included, the record is bereft of evidence to suggest that the number of students at any remaining universities was substantial enough such that the resulting plan disproportionately allocated permanent residents. Rather, the evidence indicates that these universities are the four “major colleges in Hawaii.” Id. As Gaffney" }, { "docid": "8824508", "title": "", "text": "the Supreme Court emphasized in Winter that a preliminary injunction is not appropriate when there is only a “possibility of some remote future injury.” Winter, 555 U.S. at 22, 129 S.Ct. 365 (citations omitted). Kostick must show that the conduct of the Commission is likely to cause him constitutional harm. Id. Where a plaintiff seeks a mandatory injunction, “courts should be extremely cautious about issuing a preliminary injunction,” and “should deny such relief ‘unless the facts and law clearly favor the moving party.’” Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319-20 (9th Cir.1994) (quoting Anderson, 612 F.2d at 1114). Generally, mandatory injunctions “are hot granted unless extreme or very serious damage will result and are not issued in doubtful cases or where the injury complained of is capable of compensation in damages.” Anderson, 612 F.2d at 1115; see also Little v. Jones, 607 F.3d 1245, 1251 (10th Cir.2010) (describing that “the movant must make a heightened showing of the four factors” (citation and quotation signals omitted)). “The burden of proof at the prehminary injunction phase tracks the burden of proof at trial.” Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir.2011). The parties challenging state apportionment legislation bear the burden of proving disparate representation. Karcher v. Daggett, 462 U.S. 725, 730-731, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983). It falls on Kostick to show that he is likely to establish a constitutional violation at trial. IY. DISCUSSION Kostick makes a bifurcated equal protection challenge to Hawaii’s reapportionment plan. He first protests the extraction of non-resident military personnel, their dependents, and non-resident students. He argues that using a population base that does not include the extracted individuals violates equal protection. Next, even if such an extraction is allowed, Kostick argues that deviations in the 2012 Reapportionment Plan’s subsequent reapportionment of the resulting population base are constitutionally problematic. We now turn to these claims. A. Count One (Equal Protection Challenge: Population Basis) We first address the overriding question of constitutional injury, and conclude that Kostick has not demonstrated that he is likely to succeed on the merits." }, { "docid": "8824496", "title": "", "text": "with “less certain non-permanent status,” living in on-base military housing. Extraction C included all residents in Extraction A and Extraction B, plus out-of-state university students with addresses identified only by zip code. Id. at 288, 270 P.3d at 1018. The Commission staffs “Extraction A” listed 16,458 active duty military, their dependents, and out-of-state university students (mostly on Oahu); its “Extraction B” listed 73,552; and its “Extraction C” listed 79,821. Id. Additionally, an “August 7, 2011 ‘Staff Summary’ showed a state population of 47,082 non-permanent active duty military residents, 58,949 military dependents, and 15,463 out-of-state university students” totaling 121,494 “nonpermanent” residents. Id. at 289, 270 P.3d at 1019. The Commission held a September 13, 2011 public hearing in Hilo, Hawaii. It received testimony on behalf of State Senator Malama Solomon (“Solomon”) and three members of the Hawaii County Democratic Committee, advocating extraction of the 121,494 “non-permanent” residents from the apportionment population base. Such an extraction would increase Hawaii County’s senate seats from three to four. Id. Hawaii Governor Neil Abercrombie also supported that extraction, indicating that based upon the State Attorney General’s preliminary view, “counting nonresidents is not warranted in law.” Id. On September 19, 2011, after much debate, “[t]he Commission adopted a final apportionment plan that computed the permanent resident base by excluding 16,458 active duty military and out-of-state university students from the 2010 census population of 1,330,301.” Id. at 290, 270 P.3d at 1020; Stip. Facts ¶ 32. That is, it chose “Extraction A,” primarily because of the certainty of that data. The resulting apportionment allocated “as to the senate 18 seats to Oahu County, 3 seats for Hawaii County, 3 seats for Maui County, and 1 seat for Kauai County.” Solomon, 126 Hawai’i at 290, 270 P.3d at 1020. The Commission filed this plan on September 26, 2011 (“the September 26, 2011 Plan”). Id.; Stip. Facts. ¶ 32. 3. The September 26, 2011 Plan is Challenged: Solomon v. Abercrombie; and Matsukawa v. State of Hawaii 2011 Reapportionment Commission On October 10, 2011, Solomon and the three members of the Hawaii County Democratic Committee filed a petition in the" }, { "docid": "8824570", "title": "", "text": "could not be forbidden from voting as state residents. Evans, 398 U.S. at 421-22, 90 S.Ct. 1752. Contrary to Kostick's reading of the case, the Court also reaffirmed prior holdings that permit the imposition of bona fide residency requirements to permit voting, and explained that the right to be counted existed \" ‘if [NIH employees] are in fact residents, with the intention of making [the State] their home indefinitely.’ ” Id. (quoting Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965)). Similarly, Hawaii permissibly seeks to count all of those — and only those — who have \"the intention of making [the State] their home indefinitely.” . The Commission explains that because it does not import prisoners from elsewhere, non-resident prisoners are not included because “convicted felons in Hawaii are highly likely to be 'permanent residents.’ ” Doc. No. 33, Opp’n at 26 n. 6. . In its opposition, the Commission suggests that the Kostick plaintiffs lack standing. Doc. No. 22-23, Opp’n at 16-17. However, the Commission concedes that the Lasters, consisting of a non-resident servicemember and his resident wife, have standing with respect to Count One, and certain other Plaintiffs have standing with respect to Count Two. Id. This concession dooms this standing argument. The \"presence of one party with standing assures that [the] controversy before [the] Court is justiciable.” Dep’t of Commerce v. United States House of Representatives, 525 U.S. 316, 328, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999). . In oral argument Kostick explicitly indicated that he does not seek a bifurcated election where state and local elections would be held on a separate date from the federal election. . The timing of this suit and request for relief also weigh against an injunction. Kostick could have brought his basic challenge after the September 2011 Plan was published. Although the number of people extracted from the total population was significantly lower under the September 2011 Plan than under the 2012 Plan, Kostick's core constitutional claim was cognizable at least at that early date, when there would have been time for a full" }, { "docid": "8824477", "title": "", "text": "resulting reapportionment must comply -with the principles of “one person, one vote.” Reynolds v. Sims, 377 U.S. 533, 558, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (quoting Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963)). In this action, Plaintiffs Joseph Kostick, Kyle Mark Takai, David P. Brostrom, Larry S. Veray, Andrew Walden, Edwin J. Gayagas, Ernest Laster, and Jennifer Laster (collectively, “Kostick”) challenge aspects of the March 30, 2012 Supplement to the 2011 Reapportionment Commission Final Report and Reapportionment Plan (“the 2012 Reapportionment Plan”), which Hawaii has begun implementing for its 2012 primary and general elections. The 2012 Reapportionment Plan — upon direction from the Hawaii Supreme Court in Solomon v. Abercrombie, 126 Hawai’i 283, 270 P.3d 1013 (2012) — “extracted” 108,767 active-duty military personnel, military dependents, and university students from Hawaii’s reapportionment population base. Kostick claims that this extraction by itself, or the 2012 Reapportionment Plan’s subsequent apportionment of the resulting population base, violates the Equal Protection Clause of the Fourteenth Amendment and “one person, one vote” principles. Kostick moves for a preliminary injunction, seeking: (1) to enjoin Defendant Scott T. Nago, in his official capacity as the Chief Election Officer of the State of Hawaii (“Nago”), from “further implementation” of the 2012 Reapportionment Plan, and thus to enjoin conducting the upcoming elections in accordance with that Plan; (2) to order the 2011 Hawaii Reapportionment Commission (“the Commission”) to formulate and implement a reapportionment plan using the 2010 Census’ count of “usual residents” of Hawaii as the population base; and (3) to order the use of an August 2011 proposed reapportionment plan, which utilized a population base that includes the now-extracted 108,767 people. Secondarily, Kostick seeks an order requiring an apportionment of state legislative districts that are “substantially equal in population.” We pause to emphasize what is not before us. To begin, we are not making any final determination of the merits of Kostick’s challenge, a decision that must await further proceedings. Further, this Order addresses only the legal considerations underlying the challenged actions — not whether extracting certain “non-permanent” residents from Hawaii’s" }, { "docid": "8824500", "title": "", "text": "in the state and in each county,” the Commission was required “to extract non-permanent military residents and non-permanent university student residents from the state’s and the counties’ 2010 Census population.” Id. It directed that [i]n preparing a new plan, the Commission must first — pursuant to article IV, section 4 — determine the total number of permanent residents in the state and in each county and use those numbers to allocate the 25 members of the senate and 51 members of the house of representatives among the four counties. Upon such allocation, the Commission must then — pursuant to article IV, section 6 — apportion the senate and house members among nearly equal numbers of permanent residents within each of the four counties. Id. at 294, 270 P.3d at 1024. 4. The 2012 Reapportionment Plan Soon after Solomon was issued, the Commission commenced a series of public meetings and obtained additional information regarding military personnel, their family members, and university students. The Commission eventually extracted 42,-332 active duty military personnel, 53,115 military dependents, and 13,320 students from the 2010 Census population of “usual residents.” Stip. -Facts ¶¶ 8, 10, 14, 36. This extraction totaled 108,767 persons, resulting in an adjusted reapportionment population base of 1,251,534. Id. ¶ 37. The active duty military were extracted if they “declared a state other than Hawaii as their home state for income tax purposes,” and if they were included in the 2010 Census. Doc. No. 28-12, Pis.’ Mot. Ex. D, at 2-2. That is, they were extracted “based on military records or data denoting the personnel’s state of legal residence.” Stip. Facts ¶ 8. The extracted military family members were identified by associating them with their active duty military sponsor. In other words, the Commission extracted military dependents who were associated with or attached to an active duty military person who had declared a state of legal residence other than Hawaii. Stip. Facts ¶ 10. The military did not provide the Commission with any data regarding the military dependents’ permanent or non-permanent residency other than their association or attachment to an active duty military" }, { "docid": "8824510", "title": "", "text": "Even if Kostick were able to make this threshold showing, we find that the equities tip decisively in the Commission’s favor. The record shows that the remedy Kostick seeks would require postponement of the state primary election, an integral part of the electoral process, and even put the general election in jeopardy. 1. Likelihood of Success on the Merits Kostick argues that by seeking to apportion based only on a permanent resident basis, and extracting non-resident military, their dependents, and nonresident students from the apportionment population base, Hawaii violated the principle of equal representation. On this record, Kostick fails to meet his preliminary injunction burden. To begin, the Supreme Court has explicitly affirmed that a state may legitimately restrict the districting base to citizens, which in this case, corresponds to permanent residents. Discriminating among non-resident groups in the course of extraction may be problematic-yet, the record reveals that Hawaii extracted all non-resident populations that exist in sufficient numbers to affect the apportionment of districts, and regarding which it could obtain reliable data without discriminating among them. Kostick does not show that Hawaii attempted to single out non-resident servicemembers, service-member dependents, or non-resident students for any reason other than their lack of permanent residency. Finally, the record shows that the means Hawaii chose to achieve the result were rational and, even using the standard urged by Kostick, pass close constitutional scrutiny. There is no indication that Hawaii’s methods resulted in the exclusion of state residents from the population basis sufficient to affect legislative apportionment. a) Use of Permanent Resident Population Base In considering Kostick’s claim, we have the benefit of longstanding Supreme Court precedent, including the 1966 case stemming from' Hawaii’s earlier apportionment plan—Burns v. Richardson. Just two years earlier, in Reynolds v. Sims, the Court decided a seminal case on the “right of a citizen to equal representation.” Elaborating on that principle, Reynolds explained that under the Equal Protection Clause, “an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts" } ]

[ { "docid": "14116599", "title": "", "text": "it will apply preclusion principles in immigration proceedings. Matter of Fedorenko, 19 I. & N. Dec. 57, 61 (B.I.A.1984). In addition, the Supreme Court has stated that “where a common-law principle is well established, as are the rules of preclusion, the courts may take it as given that Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident.” Astoria Fed. Sav. & Loan Ass’n. v. Solimino, 501 U.S. 104, 108, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) (citations and internal quotation marks omitted); see, e.g., Wallace Corp. v. NLRB, 323 U.S. 248, 253-55, 65 S.Ct. 238, 89 L.Ed. 216 (1944); cf. United States v. Utah Const. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966) (“When an administrative agency is acting in a judicial capacity and resolved disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.”). Ultimately, “the question is not whether administrative estoppel is wise but whether it is intended by the legislature.” Astoria, 501 U.S. 108, 111 S.Ct. 2166; accord Duvall v. Att’y Gen., 436 F.3d 382, 387-88 (3d Cir.2006); see also Bravo-Pedroza v. Gonzales, 475 F.3d 1358, 1359 (9th Cir.2007). Whether it would be consistent with Congress’s statutory scheme to apply res judicata and bar the DHS from lodging additional grounds of removal in successive immigration proceedings indeed may be a difficult question. See Johnson, 378 F.3d at 172 n. 10. But we need not solve that problem today. Even assuming that res judicata does apply to subsequent quasi-judicial proceedings, it will do Channer no good here. In deciding whether a suit is barred by res judicata, “[i]t must first be determined that the second suit involves the same ‘claim’ or — ‘nucleus of operative fact’ — as the first suit.” Waldman v. Vill. of Kiryas Joel, 207 F.3d 105, 108 (2d Cir.2000) (quoting Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir.1997)) (internal quotation marks omitted). Three" } ]

[ { "docid": "22621992", "title": "", "text": "BIA.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). Here, the BIA did not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning. It is not entirely clear whether we include the IJ’s decision in our review in such a situation. Compare Yan Chen, 417 F.3d at 271 (“ ‘[0]nly if the BIA expressly adopts or defers to a finding of the IJ, will we review the decision of the IJ.’ ”) (quoting Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003)) with Secaida-Rosales, 331 F.3d at 305 (finding it appropriate to review the IJ’s decision when BIA opinion “primarily recounts] the IJ’s reasoning”). Although we do not need to resolve the issue — because our conclusion would be the same either way — for the sake of completeness we will consider both the IJ’s and the BIA’s opinions. We review the BIA’s factual findings for substantial evidence, see id. at 306-07, its interpretation of immigration statutes with Chevron deference, see INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)), and its interpretations of immigration regulations with “substantial deference,” Joaquin-Porras v. Gonzales, 435 F.3d 172, 178 (2d Cir.2006) (internal quotation marks and citations omitted). However, “when the situation presented is the BIA’s application of legal principles to undisputed facts, rather than its underlying determination of those facts or its interpretation of its governing statutes, our review is de novo.” Monter v. Gonzales, 430 F.3d 546, 553 (2d Cir.2005) (internal quotation marks and citation omitted; alteration incorporated). II. The BIA’s Decision A. Wangchuck’s Nationality As we explained in Dhoumo v. BIA 416 F.3d 172 (2d Cir.2005) (per curiam), a “petitioner’s nationality, or lack of nationality, is a threshold question in determining his eligibility for asylum.” Id. at 174. Under section 208(b) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158(b)(1)(A), an alien may be granted asylum if the Attorney General determines that he or she is" }, { "docid": "22082072", "title": "", "text": "when an action is \"committed to agency discretion by law” under the Administrative Procedure Act, 5 U.S.C. § 701(a)(2), is whether there is \"no law to apply,” Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (internal quotation marks omitted), and that the Supreme Court has defined a discretionary act as one in which the individual authorized to act \"must exercise his authority according to his own understanding and conscience,” United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267, 74 S.Ct. 499, 98 L.Ed. 681 (1954). Certainly, Petition er argues, there is law to apply in reviewing a hardship determination, as evidenced by the BIA's own treatment of hardship as a legal standard. See, e.g., In re A-S-B-, 24 I. & N. Dec. 493, 497 (BIA 2008) (explaining that the BIA reviews an IJ’s factual findings for clear error, but reviews de novo the question of whether those facts support a conclusion that the hardship rises to the required level); see also Bd. of Immigration Appeals: Procedural Refoms To Improve Case Management, 67 Fed.Reg. 54878, 54890 (Aug. 26, 2002) (announcing that the BIA may review hardship determinations for cancellation of removal de novo as a question of law). In short, Petitioner contends that while a hardship determination may entail some discretion on the part of the agency, the decision is not discretionary in the sense that it is committed to the discretion of the Attorney General. See, e.g., Zhao Quan Chen v. Gonzales, 492 F.3d 153, 154 (2d Cir.2007) (per curiam) (denial of motion to reopen or reconsider reviewed for abuse of discretion); see also Pedreros v. Keisler, 503 F.3d 162, 164 (2d Cir.2007) (per curiam) (denial of continuance reviewed for abuse of discretion). . It is possible that the IJ’s reference to \"the only evidence” is intended as a reference to the only medical evidence, and that the IJ discounted the Petitioner’s own characterizations of his children's medical state as inexpert and marked by an expected parental solicitude and anxiety. Indeed, in the recitation of facts, the IJ explicitly sets forth that" }, { "docid": "22663549", "title": "", "text": "credibility of his testimony. The [petitioner] only raises arguments regarding the increased level of violence directed toward Christians in Pakistan and suggests that mannerisms acquired by [petitioner] in this country will somehow make him a target of anti-American sentiment when he returns to Pakistan. In light of [petitioner’s] failure to present any new evidence relating specifically to the adverse credibility finding upon which the denial of his applications was based, the motion to reopen must be denied. Paul subsequently filed a timely petition for review, challenging the BIA’s denial of his motion to reopen his case. It is to the merits of this petition that we now turn. DISCUSSION We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA 413 F.3d 232, 233 (2d Cir.2005) (per curiam); Khouzam v. Ashcroft, 361 F.3d 161, 165 (2d Cir.2004). “An abuse of discretion may be found in those circumstances where the Board’s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001) (internal citations omitted). In the context of a motion to reopen, we are “precluded from passing on the merits of the underlying exclusion proceedings.” Id. at 90. Instead, we “confine our review to the denial of petitioner’s motion to reopen [the] proceedings.” Kaur, 413 F.3d at 233. Thus, in circumstances, such as those before us, where an asylum applicant does not file a timely appeal disputing the BIA’s affirmance of the IJ’s credibility ruling, a motion to reopen does not provide a collateral route by which the alien may challenge the validity of the original credibility determination. See Ke Zhen Zhao, 265 F.3d at 89-90; see also Boudaguian v. Ashcroft, 376 F.3d 825, 827 (8th Cir.2004) (concluding that a federal appeals court “lack[ed] jurisdiction to review the BIA’s initial order because the [applicants] did not file a timely petition for review of" }, { "docid": "22650234", "title": "", "text": "more likely than not, she would be tortured if returned to China. Weng appealed and the BIA dismissed the appeal. Adopting and affirming the IJ’s decision (except with respect to the adverse credibility finding), the BIA found that Weng was subject to the persecutor bar and, as a result, was ineligible for asylum or withholding of removal. Adverting to our decision in Zhang Jian Xie v. INS, 434 F.3d 136, 143 (2d Cir.2006), the BIA characterized Weng’s conduct as “active and [as having] direct consequences for the victims” of China’s family planning policy. The BIA also affirmed the IJ’s denial of Weng’s application for CAT relief. This appeal followed. DISCUSSION Because the BIA adopted and affirmed the IJ’s decision, we review the two decisions in tandem. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The “substantial evidence” standard of review applies, Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir.2006), and we uphold the IJ’s factual findings if they are supported by “reasonable, substantial and probative evidence in the record,” Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 116 (2d Cir.2007) (internal quotation marks omitted). By contrast, “[w]e review de novo questions of law and the [BIA’s] application of law to undisputed fact.” Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). We therefore review de novo the BIA’s conclusion that Weng is subject to the persecutor bar of the Immigration and Nationality Act (“INA”). To be eligible for asylum, an applicant must establish her status as a “refugee” under the INA. 8 U.S.C. § 1158(b)(1)(B). The applicant may do so by demonstrating either that she has suffered “persecution” or that she has “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.... ” 8 U.S.C. § 1101(a)(42). The statutory definition of “refugee,” however, incorporates the “persecutor bar”: the definition ex- eludes “any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of’ a protected ground. Id.; see also 8 U.S.C. § 1158(b)(2)(A)(i). Consequently, if Weng is a persecutor," }, { "docid": "22688205", "title": "", "text": "reasons for failing to provide certain corroboration); Anderson v. McElroy, 953 F.2d 803, 806 (2d Cir.1992) (“[W]e cannot assume that the BIA considered factors that it failed to mention in its decision.” (internal quotation marks omitted)); Sanon v. INS, 52 F.3d 648, 651 (7th Cir.1995) (explaining that courts of appeals defer to BIA rulings only where there is “proof that the Board has exercised its expertise in hearing a case” (emphasis added)). We also require some indication that the IJ considered material evidence supporting a petitioner’s claim. Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir.2005) (IJ erred in failing to consider favorable country condition reports). Inadequate analysis or failure to consider important evidence, moreover, “are not excused by the fact that a hypothetical adjudicator, applying the law correctly, might also have denied the petition for asylum.” Jin Shui Qiu, 329 F.3d at 149. We review denials of motions to reopen for abuse of discretion. Iavorski v. INS, 232 F.3d 124, 128 (2d Cir.2000). Although the BIA has broad discretion in deciding such motions, it abuses this discretion if it acts in an “arbitrary or capricious manner,” or if its decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conelusory statements.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001) (internal citations omitted); see also Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir.2005) (“[T]he BIA must issue a decision that fully explains the reasons for denying a motion to reopen.”). II. The governing law A. Asylum applications To establish eligibility for asylum, a petitioner must show that he has suffered past persecution on account of “race, religion, nationality, membership in a par ticular social group, or political opinion,” or that he has a well-founded fear of future persecution on these grounds. See 8 U.S.C. § 1101(a)(42); Diallo, 232 F.3d at 284. A showing of past persecution, although rarely sufficient in itself to entitle an applicant to asylum, automatically gives rise to a rebuttable presumption of a well-founded fear of future persecution, which the" }, { "docid": "22453592", "title": "", "text": "fact-finding or the wisdom of his exercise of discretion.”); see also Gui Yin Liu, 475 F.3d at 138 (noting that we lack jurisdiction where petitioner challenges the IJ’s characterization of his testimony). Finally, we lack jurisdiction to review Khan’s argument that in affirming the IJ’s decision without opinion, the BIA failed to comply with its streamlining regulation, 8 C.F.R. § 1003.1(e)(4)(i). See Kambolli v. Gonzales, 449 F.3d 454, 465 (2d Cir.2006) (“[W]e lack jurisdiction to review a claim that a single BIA member erred in deciding to resolve unilaterally an appeal of an IJ’s order and not to refer the case to a three-member BIA panel.”). 2. Motion to Reconsider Because we conclude that Khan raises a “question of law” over which we have jurisdiction, we turn to the merits of Khan’s petition, which challenges the BIA’s denial of his motion to reconsider. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006) (observing that “we are precluded from passing on the merits of the underlying [removal] proceedings” where petitioner appeals only BIA’s denial of motion to reconsider and does not appeal agency’s underlying removal decision (internal quotation marks omitted)). A motion to reconsider must specify errors of fact or law in the BIA’s decision and be supported by pertinent authority. 8 C.F.R. § 1003.2(b); see also Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001). We review the BIA’s denial of such a motion for abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). “An abuse of discretion may be found in those circumstances where the Board’s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Id. at 233-34 (internal quotation marks omitted). “The BIA does not abuse its discretion by denying a motion to reconsider where the motion [merely] repeats arguments that the BIA has previously rejected.” Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006)" }, { "docid": "22360565", "title": "", "text": "could be adjudicated. Mahmood also argued that the IJ erred in refusing to reopen his proceedings sua sponte. On November 29, 2007, the BIA, in a one-judge per curiam order, dismissed Mahmood’s appeal. In re Mahmood, No. [ AXX XXX XXX ] (B.I.A. Nov. 29, 2007). The BIA recounted the two bases articulated by the IJ for denying the motion to reopen, and then stated, “We are in agreement with the decision of the Immigration Judge.... ” The BIA also noted that the Supreme Court had granted certiorari to decide the question of whether the filing of a motion to reopen automatically tolls the voluntary departure period. Pending that decision, however, the BIA observed that Matter of Shaar remained good law in the Second Circuit, and so Mahmood’s filing of a motion to reopen did not toll the period of voluntary departure. DISCUSSION “Where, as here, the BIA adopts the IJ’s reasoning and offers additional commentary, we review the decision of the IJ as supplemented by the BIA.” Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir.2007). We examine de novo questions of law and applications of law to undisputed fact. See Chambers v. Office of Chief Counsel, 494 F.3d 274, 277 (2d Cir.2007). We review the denial of a motion to reopen for abuse of discretion. See Kaur v. BIA 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). But we are without jurisdiction to review the Agency’s failure to reopen removal proceedings sua sponte. See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006) (per curiam); see also 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1). An alien seeking to reopen proceedings must file an appropriate motion to reopen within ninety days of the issuance of a final administrative order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1). An IJ’s administrative order of removal becomes final upon waiver of appeal. See 8 C.F.R. §§ 1003.39, 1240.14; see also Thapa v. Gonzales, 460 F.3d 323, 333 (2d Cir.2006) (concluding that orders of voluntary departure that include alternate orders of removal are final orders for purposes of judicial review). In" }, { "docid": "23115656", "title": "", "text": "B.D. PARKER, JR., Circuit Judge. Petitioner Mahamed Ayenul Islam, a native and citizen of Bangladesh, seeks review of a 34 February 14, 2005, order of the Board of Immigration Appeals (“BIA”) affirming the May 18, 1998, decision of Immigration Judge (“IJ”) Jeffrey S. Chase, which denied Islam’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) on the basis that Islam’s testimony and documents lacked credibility. See In re Mahamed Ayenul Islam, No. [ A XX XXX XXX ] (B.I.A. Feb. 14, 2005), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City May 18, 1998). Where, as here, the BIA adopts and affirms the decision of the IJ, and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the factual findings of the BIA and IJ for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We review de novo the IJ’s determination of mixed questions of law and fact, as well as the IJ’s application of law to facts. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). I. The Asylum Hearing During immigration proceedings, an IJ has the authority to “administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses.” 8 U.S.C. § 1229a(b)(l). Unlike an Article III judge, an IJ is not merely the fact finder and adjudicator, but also has an obligation to establish and develop the record. See Qun Yang v. McElroy, 277 F.3d 158, 162 (2d Cir.2002). At the same time, as a judicial officer, an immigration judge has a responsibility to function as a neutral, impartial arbiter and must be careful to refrain from assuming the role of advocate for either party. See Qun Wang v. Attorney Gen. of the U.S., 423 F.3d 260, 261 (3d Cir.2005). During the course of developing a sound and useful record, an IJ must, when appropriate, question an applicant in order, for example, to probe" }, { "docid": "20206593", "title": "", "text": "Huang’s appeal. The BIA found that “insertion of an IUD does not rise to the level of harm necessary to constitute persecution, absent some aggravating circumstance, which is not present in this case. Moreover, the respondent has not shown that the insertion of an IUD was or would be on account of a protected ground.” In re Xia Fan Huang, No. [ AXXX XXX XXX ] (B.I.A. Oct. 28, 2008) (citing Matter of M-F-W & L-G, 24 I. & N. Dec. 633 (BIA 2008)). Huang timely petitioned this Court for review of the BIA’s decision. DISCUSSION We have jurisdiction to review final orders of removal. See 8 U.S.C. § 1252(d). When the BIA does not adopt the decision of the IJ to any extent, we review only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). Here, following Huang’s petition for review of the BIA’s decision denying relief, her case was remanded for the limited purpose of allowing the BIA to reconsider its decision in light of this Court’s holding in Ying Zheng v. Gonzales, 497 F.3d 201 (2d Cir.2007). On remand, the BIA issued a brief opinion addressing only the issue presented in Ying Zheng, i.e., whether the insertion of an IUD constitutes persecution, and leaving intact the remainder of its conclusions in its original decision. Therefore, we review the BIA’s original opinion as modified by its subsequent decision, which constitutes the agency’s final order of removal. See 8 U.S.C. § 1252(d). We review the agency’s factual findings under the substantial evidence standard. See id. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). The Attorney General may grant asylum to an alien if he determines that the alien is a “refugee.” 8 U.S.C. § 1158(b)(1)(A); INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Section 101(a)(42) of the Immigration and Nationality Act defines a" }, { "docid": "19984985", "title": "", "text": "conditions. The BIA also affirmed the IJ’s denial of relief under the CAT. DISCUSSION “When the BIA briefly affirms the decision of an IJ and adopts the IJ’s reasoning in doing so, we review the IJ’s and the BIA’s decisions together.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006) (internal quotation marks omitted). We review the BIA’s factual findings, including the agency’s consideration of relevant evidence of country conditions, under the substantial evidence standard. See Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). However, “when the situation presented is the BIA’s application of legal principles to undisputed facts, ... our review is de novo.” Monter v. Gonzales, 430 F.3d 546, 553 (2d Cir.2005) (internal quotation marks omitted). I. Past Persecution Under the Immigration and Nationality Act (“INA”), a petitioner is eligible for asylum at the discretion of the Attorney General if he demonstrates that he suffered past persecution or has a well-founded fear of future persecution on account of a statutorily-protected ground. See 8 U.S.C. §§ 1101(a)(42), 1158; see also Xiu Fen Xia v. Mukasey, 510 F.3d 162, 165 (2d Cir.2007). A petitioner is also eligible for withholding of removal if he demonstrates a clear probability of persecution on account of a statutorily-protected ground. See 8 U.S.C. § 1231(b)(3). Statutorily-protected grounds include “political opinion” and “membership in a particular social group.” In dismissing Baba’s appeal, the BIA agreed with the IJ’s finding that “the incidents complained of did not rise to the level of persecution.” In re Biyalo Watara Baba, No. [ A XX XXX XXX ], at 1 (B.I.A. Dec. 14, 2007). Baba contends that this ruling was in error. We agree. The term persecution is not defined in the INA. The BIA has defined persecution as “a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.” Aliyev v. Mukasey, 549 F.3d 111, 116 (2d Cir.2008) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 222-23 (B.I.A. 1985)). This court has on several occasions considered the question" }, { "docid": "16703436", "title": "", "text": "adequate notice as required by 8 U.S.C. § 1158(d). In a September 2011 decision, the BIA rejected this argument, pointing out that Niang received both written notice through his asylum application and oral warnings through his attorney. The BIA further agreed with the IJ that Niang had knowingly filed a frivolous application and dismissed the appeal. Niang now petitions this Court for review of the BIA’s decision. Discussion We review the agency’s factual findings to determine whether they are supported by substantial evidence and its conclusions of law de novo. See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). Because the BIA adopted and supplemented the decision of the IJ, we have reviewed the decision of the IJ as supplemented by the BIA. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). “A person who makes an application for asylum determined to be ‘frivolous,’ or deliberately and materially false, is subject to a grave penalty: permanent ineligibility for most forms of relief under the immigration laws.” Mei Juan Zheng v. Mukasey, 514 F.3d 176, 178 (2d Cir.2008); see 8 U.S.C. § 1158(d)(6) (making an alien who “has knowingly made a frivolous application for asylum ... permanently ineligible for any benefits” under the INA). The frivolous filing bar does not apply, however, if the applicant has not “received the notice under paragraph (4)(A).” 8 U.S.C. § 1158(d)(6). That paragraph states that “[a]t the time of filing an application for asylum, the Attorney General shall ... advise the alien ... of the consequences, under paragraph (6), of knowingly filing a frivolous application for asylum.” Id. § 1158(d)(4)(A); see also Mei Juan Zheng, 514 F.3d at 180 (noting that applicants are entitled to various “procedural safeguards” prior to having a finding of frivolousness entered against them); Matter of Y-L-, 24 I. & N. Dec. 151, 155 (BIA 2007) (same). In this case, it is undisputed that Niang knowingly filed a frivolous asylum application. He argues, however, that he did not receive adequate notice under § 1158(d)(4)(A) warning him against such filings. We disagree. Niang first applied for asylum by mailing" }, { "docid": "22773889", "title": "", "text": "burden of establishing a well-founded fear that the family planning policy will be enforced against her through means constituting persecution upon her return to China.” Id. (citing Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir.2007)). Discussion Initially, we grant the motions of the American Immigration Lawyers Association and the “Law Professors, Instructors, and Practitioners” to submit amicus curiae briefs. See Fed. R.App. P. 29. Under the circumstances of this case, we have reviewed only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). Our applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B) (2005); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). I. BIA’s Review of Fact-Finding Concerning a Future Event We first consider the Board’s treatment of the IJ’s finding that if Huang is returned to China, the local authorities “would coercively sterilize her.” The Board did not rule whether this finding was clearly erroneous. Instead, it ruled that an IJ’s prediction that local authorities will impose a particular form of harm upon a returned asylum applicant is not a finding of fact to be reviewed for clear error. As we have noted, the Board stated that “it is impossible to declare as ‘fact’ things that have not yet occurred.” 25 I. & N. Dec. at 212 (internal quotation marks and citation omitted). If all the Board means by this statement is that a prediction that an event will occur in the future usually cannot be determined with the same degree of certainty that accompanies a finding that a past event has occurred, we would readily agree. But the Board is saying something much stronger — that a finding that an event will occur in the future is not a finding of fact at all. This meaning is evident from the Board’s citation of its precedential decision in A-S-B-, 24 I. & N. Dec. 493 (B.I.A.2008). That case involved the claim of an asylum applicant who had previously been threatened by guerillas and feared future persecution because of the prior incident. The IJ had" }, { "docid": "22773888", "title": "", "text": "a fear of what may happen in the future is well founded essentially involves predicting future events, and “it is impossible to declare as a ‘fact’ things that have not yet occurred.” Id. (quoting Matter of A-S-B-, 24 I. & N. Dec. 493, 498 (B.I.A.2008)). The Board did not rule clearly erroneous the IJ’s finding that local authorities “would coercively sterilize” Huang. Instead, the Board turned its attention to State Department reports on country conditions including the Profiles of Asylum Claims and Country Conditions, which it called “highly probative evidence,” 25 I. & N. Dec. at 213, “usually the best source of information on conditions in foreign nations,” id. (citing Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir.2006)), and entitled to “ ‘special weight,’ ” id. (quoting Aguilar-Ramos v. Holder, 594 F.3d 701, 705 n. 6 (9th Cir.2010)). Then, noting that it had “considered the State Department documents on country conditions along with the particularized evidence presented by the applicant,” the Board concluded “that [Huang] has not carried her burden of establishing a well-founded fear that the family planning policy will be enforced against her through means constituting persecution upon her return to China.” Id. (citing Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir.2007)). Discussion Initially, we grant the motions of the American Immigration Lawyers Association and the “Law Professors, Instructors, and Practitioners” to submit amicus curiae briefs. See Fed. R.App. P. 29. Under the circumstances of this case, we have reviewed only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). Our applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B) (2005); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). I. BIA’s Review of Fact-Finding Concerning a Future Event We first consider the Board’s treatment of the IJ’s finding that if Huang is returned to China, the local authorities “would coercively sterilize her.” The Board did not rule whether this finding was clearly erroneous. Instead, it ruled that an IJ’s prediction that local authorities will impose a particular" }, { "docid": "3003494", "title": "", "text": "law, see id. § 1252(a)(2)(D). Prabhudial’s petition for review raises a question of law: whether the agency had to apply the “categorical approach” to statutory interpretation to determine whether fifth-degree sale of a controlled substance ranks as an aggravated felony. See Pascual v. Holder, 707 F.3d 403, 404 (2d Cir.2013). The BIA deemed this argument waived because Prabhudial had not raised it before the IJ. We must now decide whether this question of law is before us. Only the BIA’s order is subject to our review, including the IJ’s findings and reasoning to the extent they were expressly adopted by the BIA. See, e.g., Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). If the BIA elects to consider an argument that was not raised before an IJ, we can review the argument. Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 296-97 (2d Cir.2006); Waldron v. INS, 17 F.3d 511, 515 n. 7 (2d Cir.1994). A distinct question is whether the BIA may apply the doctrine of waiver to refuse to consider an argument that was not raised before an IJ. We have not decided the question, though we have said as much in unpublished summary orders. See, e.g., Xiang Jian Huang v. Holder, 526 Fed.Appx. 100, 101 (2d Cir.2013) (unpublished). BIA precedential opinions have held so as well. See, e.g., Matter of Jimenez-Santillano, 21 I. & N. Dec. 567, 570 n. 2 (BIA 1996); Matter of Edwards, 20 I. & N. Dec. 191, 196-97 n. 4 (BIA 1990). And every circuit court to have addressed the issue has so held. See Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 440 (8th Cir.2008); Torres de la Cruz v. Maurer, 483 F.3d 1013, 1022-23 (10th Cir.2007); Ocasio v. Ashcroft, 375 F.3d 105, 107-08 (1st Cir. 2004); Eduard v. Ashcroft, 379 F.3d 182, 195 n. 14 (5th Cir.2004). We agree with our sister circuits and conclude that “[w]here the agency properly applies its own waiver rule and refuses to consider the merits of an argument that was not raised [before the IJ], we will not permit an end run around" }, { "docid": "23632237", "title": "", "text": "satisfy the higher burden of proof necessary to succeed on his withholding of removal claim, and denied that claim as well. The BIA also found that Chen had failed to establish eligibility for CAT relief, and ordered Chen removed to China. Chen timely filed a petition for review before this Court. DISCUSSION Standard of Review When the BIA issues an opinion that does not adopt the decision of the IJ to any extent, the BIA’s opinion “becomes the basis for judicial review of the decision of which the alien is complaining.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (citation omitted). We review factual findings, including adverse credibility determinations, under the substantial evidence standard, upholding them if they are supported by “reasonable, substantial and probative evidence in the record.” Id. (citation omitted). On the other hand, “if the issue on appeal involves the proper application of legal principles to the facts and circumstances of the individual case at hand, our review has been de novo.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (citations omitted). We will vacate and remand BIA decisions “that result from flawed reasoning or the application of improper legal standards.” Rizal v. Gonzales, 442 F.3d 84, 89 (2d Cir.2006); see also Secaidar-Rosales, 331 F.3d at 307 (“[U]sing an inappropriately stringent standard when evaluating an applicant’s testimony constitutes legal, not factual, error.”). Analysis For all appeals filed after September 25, 2002, the BIA is no longer permitted to engage in de novo review of an IJ’s factual findings. See 8 C.F.R. §§ 1003.1(d)(3)(i), 1003.3(f); see also In re S-H-, 23 I. & N. Dec. 462, 466 (B.I.A.2002) (“Under the new regulatory provisions, the Board will not engage in de novo review of findings of fact determined by an Immigration Judge in any case in which the appeal is filed on or after September 25, 2002.”). Rather, “[f]acts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.” 8 C.F.R. § 1003.1(d)(3)(i). Although the BIA cited" }, { "docid": "22298385", "title": "", "text": "other protected ground under [8 U.S.C. § 1158], if he is removed to the Republic of Congo. Id. (citations omitted). Passi timely petitioned this Court for review, again only challenging the denial of his asylum claim. II When the BIA affirms an IJ’s decision on different grounds, we review only the BIA’s decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). As we have explained on several occasions, however, when the BIA affirms the IJ’s decision in some respects, but not others, we may also review the IJ’s decision, although our review is confined to those reasons for denying relief that were adopted by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). See generally Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). In this case, the BIA assumed that Passi’s asylum application was timely filed and that he had testified credibly, so we may not rest on the IJ’s adverse credibility finding or her ruling pretermitting Passi’s asylum claim. See Yan Chen, 417 F.3d at 271. Instead the BIA adopted the IJ’s reason for denying Passi’s withholding of removal claim — that country conditions had changed — to reject his asylum claim. Although we are reviewing the BIA’s decision, we find it informative in this case to look to the IJ’s decision as well to decipher the reasoning in which the BIA “concur[red]” just as we would if the BIA had merely modified or supplemented the IJ’s decision. We review the agency’s factual findings under the substantial evidence standard treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We will, however, vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed, for example, where the agency’s determination was “based on an inaccurate perception of the record, omitting potentially significant facts.” Tambadou v. Gonzales, 446 F.3d 298, 302 (2d Cir.2006) (internal quotation marks omitted); see also Cao He" }, { "docid": "22921776", "title": "", "text": "Finally, the BIA denied Aliyev withholding of removal or relief under the CAT. Aliyev both petitioned this Court for review and moved the BIA to reconsider its decision. On June 13, 2007, the BIA denied Ali-yev’s motion to reconsider, again concluding that the Stipulation did not contest the BIA’s prior findings concerning the nongovernmental actors. The decision stated that the Board had reviewed the alleged acts of the civilian Kazakhs when it reevaluated Aliyev’s claims but did not find them to be acts of persecution as contemplated by the Immigration and Nationality Act (“INA”), and therefore did not consider them in assessing the cumulative effect of multiple acts of harassment. Aliyev petitioned this Court for review of the BIA’s denial of his motion to reconsider. DISCUSSION A. Standard of Review “When the BIA issues an opinion, the opinion becomes the basis for judicial review of the decision of which the alien is complaining.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (quotation marks omitted). In this instance, as the BIA “did not adopt the decision of the IJ to any extent, nor is the BIA’s per curiam opinion merely supplemental” to the IJ’s decision, id., we review the decision of the BIA alone. We assess the agency’s factual findings under the substantial evidence standard, but review the BIA’s application of legal principles to undisputed facts de novo. Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000). The denial of a motion to reconsider is reviewed for an abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). B. Analysis To establish eligibility for asylum, an applicant must show that he or she is a refugee who has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or has a well-founded fear of persecution on one of these grounds. See 8 U.S.C. § 1101(a)(42); Island v. Gonzales, 412 F.3d 391, 394 (2d Cir.2005), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d cir.2007). While" }, { "docid": "22664745", "title": "", "text": "PER CURIAM. Petitioner Sukhraj Kaur, a native and citizen of India, petitions this Court for review of a June 20, 2003 order of the Board of Immigration Appeals (“BIA” or “Board”) denying petitioner’s motion to reopen proceedings in order to submit “new evidence” regarding her asylum claim. In an earlier order, dated December 13, 2002, the BIA affirmed a decision by an immigration judge (“IJ”) denying petitioner’s application for asylum and withholding of removal, and further denied petitioner relief under the United Nations Convention Against Torture, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85; 8 C.F.R. § 208.16. We assume that the parties are familiar with the facts, the procedural history, and the scope of the issues presented on appeal. As a threshold matter, we note that our review is limited to the BIA’s decision not to reopen petitioner’s removal proceedings. Petitioner did not timely petition for review of the December 13, 2002 order of the BIA that affirmed the IJ’s denial of her underlying asylum application. It is also well-established that the filing of a motion to reopen does not toll the time for filing a petition for review of the BIA’s final exclusion or deportation orders, such as the December 13, 2002 order. See Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). We are therefore “precluded from passing on the merits of the underlying exclusion proceedings,” and must confine our review to the denial of petitioner’s motion to reopen these proceedings. Zhao v. DOJ, 265 F.3d 83, 90 (2d Cir.2001). We review the BIA’s denial of a motion to reopen for abuse of discretion. Zhao, 265 F.3d at 92-93. “An abuse of discretion may be found in those circumstances where the Board’s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Id. at 93 (internal citations omitted). Petitioner’s appellate brief argues the merits of her underlying asylum claim, but" }, { "docid": "22245032", "title": "", "text": "vacatur. See Diallo v. INS, 232 F.3d 279, 290 (2d Cir.2000). Although Li asserts on appeal that the IJ failed to make an adverse credibility determination, she did not exhaust this issue before the BIA; to the contrary, her submission to the BIA challenged the adverse credibility determination that the IJ made. We decline to consider this argument on appeal, and deem it forfeited. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n. 1 (2d Cir.2007). III. In the alternative, Li challenges the IJ’s adverse credibility determination. A. When the BIA summarily affirms an IJ decision, we review the IJ decision as the final agency determination. Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). We review the agency’s factual findings, including an adverse credibility determination, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). “In cases like this one, in which the IJ bases her denial of asylum on a finding that a petitioner’s application is not credible, our review is especially limited and highly deferential.” Borovikova, 435 F.3d at 156 (internal quotation marks omitted); see also Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.2005) (“We afford particular deference in applying the substantial evidence standard when reviewing an IJ’s credibility findings.” (internal quotation marks omitted)). “When an IJ has supported an ultimate finding that an applicant’s testimony was not credible by concluding that significant aspects of the testimony were implausible, the decisions of our Court have not been entirely consistent.” Ming Xia Chen v. BIA 435 F.3d 141, 145 (2d Cir.2006). For example, “we have cited approvingly the BIA’s view that an adverse credibility finding may be based on ‘inherently improbable testimony.’ ” Id. (quoting Diallo v. INS, 232 F.3d 279, 287-88 (2d Cir.2000)); see In re S-M-J-, 21 I. & N. Dec. 722, 729 (B.I.A.1997) (“Adverse credibility determinations are appropriately based on inconsistent statements, contradictory evidence, and inherently improbable testimony .... ”). But we have also said that an “IJ must point to" }, { "docid": "22688204", "title": "", "text": "251 F.3d 44, 49 (2d Cir.2001) (internal quotation marks omitted). By contrast, we review de novo the IJ’s determination of mixed questions of law and fact, as well as the the IJ’s application of law to facts. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003); Jin Shui Qiu, 329 F.3d at 149; Alvarado-Carillo, 251 F.3d at 49; Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000). Importantly, the IJ’s application of an “inappropriately stringent standard when evaluating an applicant’s testimony” is considered an error of law. Secaida-Rosales, 331 F.3d at 307 (2d Cir.2003); see also Islami v. Gonzales, 412 F.3d 391, 396 (2d Cir.2005). Despite our generally deferential review of IJ and BIA opinions, we require a certain minimum level of analysis from the IJ and BIA opinions denying asylum, and indeed must require such if judicial review is to be meaningful. See, e.g., Diallo, 232 F.3d at 287-89 (vacating a decision because the BIA failed to make a credibility finding, explain why its demand for corroborative evidence was reasonable, or assess Diallo’s stated reasons for failing to provide certain corroboration); Anderson v. McElroy, 953 F.2d 803, 806 (2d Cir.1992) (“[W]e cannot assume that the BIA considered factors that it failed to mention in its decision.” (internal quotation marks omitted)); Sanon v. INS, 52 F.3d 648, 651 (7th Cir.1995) (explaining that courts of appeals defer to BIA rulings only where there is “proof that the Board has exercised its expertise in hearing a case” (emphasis added)). We also require some indication that the IJ considered material evidence supporting a petitioner’s claim. Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir.2005) (IJ erred in failing to consider favorable country condition reports). Inadequate analysis or failure to consider important evidence, moreover, “are not excused by the fact that a hypothetical adjudicator, applying the law correctly, might also have denied the petition for asylum.” Jin Shui Qiu, 329 F.3d at 149. We review denials of motions to reopen for abuse of discretion. Iavorski v. INS, 232 F.3d 124, 128 (2d Cir.2000). Although the BIA has broad discretion in deciding such motions, it" } ]

[ { "docid": "15517534", "title": "", "text": "law when an offer of compromise is accepted but which subsequently fails of consummation. The framers of the 1898 Bankruptcy Act, wishing to avoid confusion on a concept so central in bankruptcy, offered explicit language on the nature of a discharge within a confirmation. Section 14(c) of the Bankruptcy Act of 1898, as then enacted, provided that the confirmation of a composition would discharge the bankrupt from his debts, other than those agreed to be paid by the terms of the composition. In Jacobs v. Fensterstock, supra, the New York Court of Appeals interpreted the phrase “those [debts] agreed to be paid by the terms of the composition” to mean the notes given on the composition. The composition thus acted as a settlement and discharge of the old debts. The promises made on the composition released the debtor, and if they were not fulfilled, the remedy was only upon those promises. Nordlinger v. Libow, 136 Misc. 438, 240 N.Y.S. 193 (City Court 1930), citing Jacobs v. Fensterstock. See also In re Kornbluth, supra. When the 1898 Act was amended to provide for Chapter XI arrangements, Section 371, 11 U.S.C. (1976 ed.) § 771, was part of the Chapter XI scheme and was the analogue, therefore, of Section 14(c) of the 1898 Act which had no Chapter XI provisions until 1938. By incorporating language from Section 14(c) into Section 371, it may be presumed that Congress was aware of the prior judicial interpretation of the statute. Leist v. Simplot, 638 F.2d 283 (2d Cir. 1980). And when a statute is reenacted without substantial change, Congress is presumed to have adopted that judicial interpretation. Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 869, 55 L.Ed.2d 40 (1977). Thus, when Congress, in Section 371, defined the confirmation discharge to release the rehabilitated debtor from all his unsecured debts provided for by the plan, Congress gave meaning to its policy of affording debtors rehabilitation and a fresh start. Confirmation fixes the reach of claims that are allowed and that the debtor treats in the plan. Where the debtor effects a composition, he" } ]

[ { "docid": "7190261", "title": "", "text": "669 F.2d 1325, 1330 (9th Cir.1982); In re Kerber Packing Co., 276 F.2d 245, 246-47 (7th Cir.1960); United States v. Bass, 271 F.2d 129, 130 (9th Cir. 1959); In re Macomb Trailer Coach, Inc., 200 F.2d 611, 613 (6th Cir.1952), cert. denied, 345 U.S. 958, 73 S.Ct. 940, 97 L.Ed. 1378 (1953); see also Debentureholders Protective Committee of Continental Investment Corp. v. Continental Investment Corp., 679 F.2d at 269 (discussing first exception); United States v. Kalishman, 346 F.2d 514, 517-18 (8th Cir.1965) (discussing first and second exceptions), cert. denied, 384 U.S. 1003, 86 S.Ct. 1913, 16 L.Ed.2d 1017 (1966); United States v. Harrington, 269 F.2d 719, 720 (4th Cir.1959) (same); Castanar v. Mora, 234 F.2d 710, 712 (1st Cir.1956) (discussing third exception); Kagan v. Industrial Washing Machine Corp., 182 F.2d 139, 146 (1st Cir.1950) (same); Oppenheimer v. Oldham, 178 F.2d 386, 388-89 (5th Cir. 1949) (same). These exceptions are not rigid doctrinal categories. Rather, they are flexible guidelines which have been developed by the courts in the exercise of their equitable powers in insolvency proceedings. The reorganization court must consider whether to grant postpetition interest, not as an abstract matter, but in light of the nature of each claim and the equities of the case before it. In re Penn Central Transportation Co., 358 F.Supp. at 170; In re Leeds Homes, Inc., 222 F.Supp. 20, 33 (E.D.Tenn. 1963), aff’d 332 F.2d 648 (6th Cir.), cert. denied, 379 U.S. 836, 85 S.Ct. 71, 13 L.Ed.2d 43 (1964); see also In re Magnus Harmonica Corp., 262 F.2d 515, 518 (3d Cir.1959). At all times the reorganization court must be guided by the basic equitable principle announced in Vanston: It is manifest that the touchstone of each decision on allowance of interest in bankruptcy, receivership and reorganization has been a balance of equities between creditor and creditor or between creditors and the debtor. Vanston Bondholders Protective Committee v. Green, 329 U.S. at 165, 67 S.Ct. at 241 (citation omitted). Cambridge contends that, having perfected its tax lien prior to the filing of the petition, it became a secured creditor in the amount of" }, { "docid": "12376368", "title": "", "text": "55 L.Ed. 244 (1911). This general rule applied to tax liens, City of New York v. Saper, 336 U.S. 328, 337-38, 69 S.Ct. 554, 559-60, 93 L.Ed. 710 (1949); United States v. Mighell, 273 F.2d 682 (10th Cir.1959), and had its foundation primarily in the equitable principle that the delays necessitated by bankruptcy proceedings should not place one creditor at an advantage or disadvantage in contrast to other creditors: In the context of interest-bearing debts, the equitable principle enunciated in Sexton and Saper rests at bottom on an awareness of the inequity that would result if, through the continuing accumulation of interest in the course of subsequent bankruptcy proceedings, obligations bearing relatively high rates of interest were permitted to absorb the assets of a bankrupt estate whose funds were already inadequate to pay the principal of the debts owed by the estate. Nicholas v. United States, 384 U.S. 678, 683-84, 86 S.Ct. 1674, 1679, 16 L.Ed.2d 853 (1966) (footnote omitted). Over time, the federal courts created exceptions to this general rule to allow for postpetition interest on prepetition secured claims under the following circumstances: (1) the debtor is proven to be solvent; (2) the property held by the creditor to secure the debt produces income during the course of the proceedings; or (3) the value of the collateral securing the debt is sufficient to pay both the claim and postpetition interest on the claim. See, e.g., In re Boston & Maine Corp., 719 F.2d 493, 496 (1st Cir.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1913, 80 L.Ed.2d 461 (1984); In re Kerber Packing Co., 276 F.2d 245, 246 (7th Cir.1960); United States v. Bass, 271 F.2d 129, 130 (9th Cir.1959); In re Macomb Trailer Coach, Inc., 200 F.2d 611, 613 (6th Cir.1952), cert. denied, 345 U.S. 958, 73 S.Ct. 940, 97 L.Ed. 1378 (1953). The third exception above was created pursuant to the theory that postpetition interest should be allowed where a security agreement had been voluntarily executed and the creditor had successfully bargained for specific, valuable collateral to secure the principal obligation. Accordingly, where the creditor had bargained" }, { "docid": "19180996", "title": "", "text": "Liens — Abandonment of the ‘Non-consensual’ Distinction in Bankruptcy Proceedings: United States v. Ron Pair Enters.,” 43 Tax Law. 475 (1990). The Courts of Appeals which addressed this issue prior to the enactment of the 1978 Code all followed this rule. See In re Kerber Packing Co., 276 F.2d 245, 246-48 (7th Cir.1960); Harrington, 269 F.2d at 721-24; United States v. Bass, 271 F.2d 129, 130-32 (9th Cir.1959); United States v. Mighell, 273 F.2d 682, 684 (10th Cir.1959); see also Boston and Maine, 719 F.2d at 496-98; for a possible counterexample, see Berryhill v. Gerstel, 196 F.2d 304 (5th Cir.1952). As late as 1988 Collier’s endorsed what it characterized as mainstream pre-1978 Code practice to deny postpetition interest on nonconsensual oversecured claims. 3 Collier on Bankruptcy ¶ 506.05 and n. 5b (15th ed.1988). Early decisions under the 1978 Code were mixed, with some awarding postpetition interest on nonconsensual liens, see Best Repair Co. v. United States, 789 F.2d 1080, 1082 (4th Cir.1986), and others following the traditional rule, see United States v. Ron Pair Enters., 828 F.2d 367, 370-73 (6th Cir.1987), rev’d, 489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); In re Newbury Cafe, 841 F.2d 20, 22 (1st Cir.1988), vacated, 489 U.S. 1049, 109 S.Ct. 1305, 103 L.Ed.2d 575 (1989); Boston & Maine, 719 F.2d at 495-98. However, it is notable that courts on both sides of this question typically began their analysis with the traditional rule and then found that Congress in enacting § 506(b) either codified by implication the traditional denial of post-petition additions to nonconsensual claims or modified that rule to the extent of allowing postpetition interest only. The Supreme Court has recently settled this difference of opinion among the circuits. In United States v. Ron Pair Enters., 489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989), the government sought interest on its tax claim. The Court found that § 506(b) provides for postpetition interest on overse-cured claims whether they arise by operation of law or under an agreement, but allows postpetition fees and costs only to consensual oversecured lienholders whose claims arise" }, { "docid": "1996617", "title": "", "text": "by a bankruptcy court to balance the equities among claims of conflicting creditors to see that injustice or unfairness is not done in the administration of a bankruptcy estate. Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939); Taylor v. Standard Gas and Electric Co., 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1939). The right of the bankruptcy court to order equitable subordination of claims has been codified in 11 U.S.C. Section 510(c) which provides that: (c) Notwithstanding subsections (a) and (b) of this section, after notice and a hearing, the court may— (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest; or (2) order that any lien securing such a subordinated claim be transferred to the estate. The use of the term “principles of equitable subordination” in Section 510(c) as a standard was intended to mean that the Courts were to follow existing case law and continue to develop the principles of the doctrine of equitable subordination on a case by case basis. 124 Cong.Rec. H 11095 (Sept. 28, 1978); S 17412 (Oct. 6, 1978). The Trustee must prove three separate elements in order to prevail in an equitable subordination case: (1) That the claimant engaged in some type of inequitable conduct; (2) That the inequitable conduct of the claimant resulted in injury to the creditors of the Debtor or conferred an unfair advantage on the claimant; and (3) The equitable subordination of the claimant’s claim is not inconsistent with the provisions of the Bankruptcy Code. In re Mobile Steel Company, 563 F.2d 692 (5th Cir.1977); In re Multiponics, Inc., 622 F.2d 709 (5th Cir.1980). A determination of whether the claimant was an insider at the time of the alleged inequitable conduct is a first step in examining the inequity of the claimant’s conduct, because the conduct of a fiduciary is subject to special scrutiny by the Court and a" }, { "docid": "19180995", "title": "", "text": "rights, giving consideration and identifying specific collateral from which the additional payments should be made, and that courts should protect their expectations. See, e.g., United States v. Harrington, 269 F.2d 719, 724 (4th Cir.1959). But this was an exception. Unsecured creditors continued to have no such entitlement, and even creditors with overse-cured liens arising not by agreement (such as tax and judgment liens) were not generally allowed postpetition additions because they had not bargained for them and any postpeti tion sums they could collect would come at the cost of the unsecured creditors. See In re Boston & Maine Corp., 719 F.2d 493, 497 (1st Cir.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1913, 80 L.Ed.2d 461 (1984). Postpetition interest on nonconsensual claims was seen as an “unbargained-for windfall at the expense of the general unsecured creditors of the debtor.” Charles Jordan Tabb and Robert M. Lawless, “Of Commas, Gerunds, and Conjunctions: The Bankruptcy Jurisprudence of the Rehnquist Court,” 42 Syracuse L.Rev. 823, 845 (1991); see also Jeffrey H. Paravano, “Postpetition Interest on Overse-cured Tax Liens — Abandonment of the ‘Non-consensual’ Distinction in Bankruptcy Proceedings: United States v. Ron Pair Enters.,” 43 Tax Law. 475 (1990). The Courts of Appeals which addressed this issue prior to the enactment of the 1978 Code all followed this rule. See In re Kerber Packing Co., 276 F.2d 245, 246-48 (7th Cir.1960); Harrington, 269 F.2d at 721-24; United States v. Bass, 271 F.2d 129, 130-32 (9th Cir.1959); United States v. Mighell, 273 F.2d 682, 684 (10th Cir.1959); see also Boston and Maine, 719 F.2d at 496-98; for a possible counterexample, see Berryhill v. Gerstel, 196 F.2d 304 (5th Cir.1952). As late as 1988 Collier’s endorsed what it characterized as mainstream pre-1978 Code practice to deny postpetition interest on nonconsensual oversecured claims. 3 Collier on Bankruptcy ¶ 506.05 and n. 5b (15th ed.1988). Early decisions under the 1978 Code were mixed, with some awarding postpetition interest on nonconsensual liens, see Best Repair Co. v. United States, 789 F.2d 1080, 1082 (4th Cir.1986), and others following the traditional rule, see United States v. Ron Pair Enters.," }, { "docid": "12376369", "title": "", "text": "interest on prepetition secured claims under the following circumstances: (1) the debtor is proven to be solvent; (2) the property held by the creditor to secure the debt produces income during the course of the proceedings; or (3) the value of the collateral securing the debt is sufficient to pay both the claim and postpetition interest on the claim. See, e.g., In re Boston & Maine Corp., 719 F.2d 493, 496 (1st Cir.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1913, 80 L.Ed.2d 461 (1984); In re Kerber Packing Co., 276 F.2d 245, 246 (7th Cir.1960); United States v. Bass, 271 F.2d 129, 130 (9th Cir.1959); In re Macomb Trailer Coach, Inc., 200 F.2d 611, 613 (6th Cir.1952), cert. denied, 345 U.S. 958, 73 S.Ct. 940, 97 L.Ed. 1378 (1953). The third exception above was created pursuant to the theory that postpetition interest should be allowed where a security agreement had been voluntarily executed and the creditor had successfully bargained for specific, valuable collateral to secure the principal obligation. Accordingly, where the creditor had bargained to become an oversecured creditor, he had an expectation of receiving interest were it necessary to sell the security. See Kerber Packing Co., 276 F.2d at 247; Bass, 271 F.2d at 132; United States v. Harrington, 269 F.2d 719, 724 (4th Cir.1959). It was equally well established by at least four courts of appeals that the third exception — allowing the payment of post-petition interest if the claim was oversecured — did not apply to liens which were nonconsensual in nature, such as tax liens, because the underlying reason for the exception did not apply. See Kerber Packing Co., 276 F.2d at 247; Mighell, 273 F.2d at 684; Bass, 271 F.2d at 131-32; Harrington, 269 F.2d at 721-24. Cf. Boston & Maine Corp., 719 F.2d at 497. In such cases the parties had not bargained concerning particular collateral, and the creditor therefore did not have an expectation of receiving interest. One noted distinction between tax liens and contractual liens is that tax liens often apply to all of the debtor’s property, whereas consensual liens are" }, { "docid": "18766192", "title": "", "text": "prevailing principles of equitable subordination support such a determination. B. The Doctrine of Equitable Subordination The doctrine of equitable subordination emanates from the general equity powers of the bankruptcy court. In Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939), the Supreme Court reaffirmed that “courts of bankruptcy are essentially courts of equity, and their proceedings inherently proceedings in equity.” 308 U.S. at 304, 60 S.Ct. at 244. Among its equity powers, the bankruptcy court was endowed with the authority to “subordinat[e] in light of equitable considerations_” Id. at 305, 60 S.Ct. at 244. As the Court stated, “[i]n the exercise of its equitable jurisdiction the bankruptcy court has the power to sift the circumstances surrounding any claim to see that injustice or unfairness is not done in administration of the bankrupt estate.” Id. at 307-08, 60 S.Ct. at 246, see also, Taylor v. Standard Gas and Electric Co., 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1938). The IRS maintains that wrongful conduct by a creditor is the traditional basis for the equitable subordination of that creditor’s claim and rejects the debtor’s attempt to expand that doctrine. Relying on In re Ahlswede, 516 F.2d 784, 787 (9th Cir.), cert. denied, 423 U.S. 913, 96 S.Ct. 218, 46 L.Ed.2d 142 (1975), the IRS states that “while Congress has left with the courts the discretion to develop the concept of equitable subordination this power is not limitless or rudderless. Equitable subordination is an extraordinary remedy only to be used in extreme cases of unfairness.” See also In re Branding Iron Steak House, 536 F.2d 299 (9th Cir.1976); In re Mobile Steel Co., 563 F.2d 692, 699-700 (5th Cir.1977) (“before exercise of the powers of equitable subordination is appropriate ... [t]he claimant must have engaged in some type of inequitable conduct.”). This court is persuaded, however, that wrongful conduct is no longer the exclusive basis for equitable subordination. Recent cases within the Second Circuit and compelling language in the legislative history of § 510(c)(1) support the view that certain claims may be subordinated by virtue of their" }, { "docid": "7190260", "title": "", "text": "10, 10-11 (1st Cir.1951), cert. denied, 342 U.S. 918, 72 S.Ct. 364, 96 L.Ed. 686 (1952); United States v. General Engineering and Manufacturing Co., 188 F.2d 80, 81-83 (8th Cir. 1951), aff’d per curiam, 342 U.S. 912, 72 S.Ct. 358, 96 L.Ed. 682 (1952); direct actions against a debtor after the confirmation of an arrangement, National Foundry Co. v. Director of Internal Revenue, 229 F.2d 149, 150-51 (2d Cir.1956); and Section 77 railroad reorganizations, In re Penn Central Transportation Co., 358 F.Supp. 154, 170 (E.D.Pa.1973); In re New York, New Haven and Hartford Railroad Co., 304 F.Supp. 1121, 1129-32 (D.Conn.1969). Despite the general prohibition on the payment of postpetition interest, three exceptions have been developed by the federal courts. Interest may accrue: (1) where the bankrupt ultimately proves to be solvent; (2) where securities, held by the creditor produce income after the filing of the petition; and (3) where the amount of the secured creditor’s security is sufficient to satisfy both the principal and interest due on the secured claim. In re Walsh Construction, Inc., 669 F.2d 1325, 1330 (9th Cir.1982); In re Kerber Packing Co., 276 F.2d 245, 246-47 (7th Cir.1960); United States v. Bass, 271 F.2d 129, 130 (9th Cir. 1959); In re Macomb Trailer Coach, Inc., 200 F.2d 611, 613 (6th Cir.1952), cert. denied, 345 U.S. 958, 73 S.Ct. 940, 97 L.Ed. 1378 (1953); see also Debentureholders Protective Committee of Continental Investment Corp. v. Continental Investment Corp., 679 F.2d at 269 (discussing first exception); United States v. Kalishman, 346 F.2d 514, 517-18 (8th Cir.1965) (discussing first and second exceptions), cert. denied, 384 U.S. 1003, 86 S.Ct. 1913, 16 L.Ed.2d 1017 (1966); United States v. Harrington, 269 F.2d 719, 720 (4th Cir.1959) (same); Castanar v. Mora, 234 F.2d 710, 712 (1st Cir.1956) (discussing third exception); Kagan v. Industrial Washing Machine Corp., 182 F.2d 139, 146 (1st Cir.1950) (same); Oppenheimer v. Oldham, 178 F.2d 386, 388-89 (5th Cir. 1949) (same). These exceptions are not rigid doctrinal categories. Rather, they are flexible guidelines which have been developed by the courts in the exercise of their equitable powers in insolvency proceedings." }, { "docid": "22750261", "title": "", "text": "Code, this Court, as well as every Court of Appeals to address the question, had refused to allow postpetition interest on nonconsensual liens such as the tax lien involved in this case. See City of New York v. Saper, 336 U. S. 328, 329-341 (1949); In re Kerber Packing Co., 276 F. 2d 245, 246-248 (CA7 1960); United States v. Mighell, 273 F. 2d 682, 684 (CA10 1959); United States v. Bass, 271 F. 2d 129, 130-132 (CA9 1959); United States v. Harrington, 269 F. 2d 719, 723 (CA4 1959). See also In re Boston & Maine Corp., 719 F. 2d 493, 495-498 (CA1 1983) (post-Code case not allowing postpetition interest on municipal tax lien), cert. denied sub nom. City of Cambridge v. Meserve, 466 U. S. 938 (1984). In order to deflect this line of cases, the Court refers to the practice “of denying postpetition interest to the holders of nonconsensual liens, while allowing it to holders of consensual liens,” as “an exception to an exception.” Ante, at 246. Regardless of how it is labeled, cf. Henneford v. Silas Mason Co., 300 U. S. 577, 586 (1937) (“Catch words and labels . . . are subject to the dangers that lurk in metaphors and symbols, and must be watched with circumspection lest they put us off our guard”), the practice was more widespread and more well established than the practice in Midlantic, and was certainly one that Congress “[would have been] aware of when enacting the Code. ” Ante, at 246. The denial of postpetition interest on nonconsensual liens was based on the distinction between types of liens as. well as equitable considerations. Unlike consensual liens, to which the parties voluntarily agree, nonconsensual liens depend for their existence only on legislative fiat. Thus, the justification for the allowance of postpetition interest on consensual liens — “that when the creditor extended credit, he relied upon the particular security given as collateral to secure both the principal of the debt and interest until payment and, if the collateral is sufficient to pay him, the contract between the parties ought not be" }, { "docid": "22750260", "title": "", "text": "language was insufficient to demonstrate specific congressional intent to change pre-Code law. The rule of Midlantic is that bankruptcy statutes will not be deemed to have changed pre-Code law unless there is some indication that Congress thought that it was effecting such a change. See Kelly v. Robinson, 479 U. S. 36, 50-51 (1986) (“Nowhere in the House and Senate Reports is there any indication that this language should be read so intrusively. . . . If Congress had intended, by § 523(a)(7) [of the Code] or by any other provision, to discharge state criminal sentences, ‘we can be certain that there would have been hearings, testimony, and debate concerning consequences so wasteful, so inimical to purposes previously deemed important, and so •likely to arouse public outrage’”) (quoting TVA v. Hill, 437 U. S. 153, 209 (1978) (Powell, J., dissenting)). The first step under Midlantic is to ascertain whether there was an established pre-Code bankruptcy practice. See 474 U. S., at 500-501. That question is easily answered here. Trior to the 1978 enactment of the Code, this Court, as well as every Court of Appeals to address the question, had refused to allow postpetition interest on nonconsensual liens such as the tax lien involved in this case. See City of New York v. Saper, 336 U. S. 328, 329-341 (1949); In re Kerber Packing Co., 276 F. 2d 245, 246-248 (CA7 1960); United States v. Mighell, 273 F. 2d 682, 684 (CA10 1959); United States v. Bass, 271 F. 2d 129, 130-132 (CA9 1959); United States v. Harrington, 269 F. 2d 719, 723 (CA4 1959). See also In re Boston & Maine Corp., 719 F. 2d 493, 495-498 (CA1 1983) (post-Code case not allowing postpetition interest on municipal tax lien), cert. denied sub nom. City of Cambridge v. Meserve, 466 U. S. 938 (1984). In order to deflect this line of cases, the Court refers to the practice “of denying postpetition interest to the holders of nonconsensual liens, while allowing it to holders of consensual liens,” as “an exception to an exception.” Ante, at 246. Regardless of how it is" }, { "docid": "18766198", "title": "", "text": "& Admin.News 5963, 6315. (“The court’s power is broader than the general doctrine of equitable subordination, and encompasses subordination on any equitable grounds”.) CONCLUSION Although earlier decisions did not permit the equitable subordination of claims unless the claiming creditor was guilty of some misconduct, courts now recognize that the subordination of penalty claims is necessary to avoid the inequity of requiring innocent creditors to share the cost of a debtor’s misconduct. Here, as noted, the IRS penalty was imposed because of the debtor’s failure to file tax returns and pay income taxes. Accordingly, I find that the debtor’s First Amended Chapter 13 Plan properly subordinates the IRS penalty, the IRS Objection is overruled, and IT IS SO ORDERED. . The debtor filed two versions of his First Amended Plan: February 3, 1986 and June 23, 1986. The latter subordinated the IRS penalty and is the subject of this decision. . During oral argument debtor's counsel conceded that where, as here, an estate has no free assets, subordination under § 726(a)(4) is not applicable. .The trustee did not join the debtor in asserting this argument. . See also, 124 Cong.Rec. H 11,113 (daily ed. Sept. 28, 1978); S 17,430 (daily ed. Oct. 6, 1978) (remarks of Rep. Edwards and Sen. DeConcini), reprinted in, 1978 U.S.Code Cong. & Admin. News 6436, 6499, 6505, 6568 (\"Since the House Amendment authorizes subordination of claims only under principles of equitable subordination, and thus incorporates principles of existing case law, a tax claim would rarely be subordinated under this provision of the bill.”). . Congress specifically approved Pepper v. Litton and Taylor v. Standard Gas and Electric Co. when it enacted § 510(c). See, H.R.Rep. No. 595, 95th Cong., 1st Sess., 359 (1977), reprinted in, 1978 U.S.Code Cong. & Admin.News 5963, 6315 (“This section is intended to codify case law, such as Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939), and Taylor v. Standard Gas and Electric Co., 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1938) ...\"). . United States’ Memorandum In Opposition To The Subordination Of The IRS’" }, { "docid": "3502614", "title": "", "text": "not entitled to share in the consolidated refund in an amount greater than the amount paid by the subsidiary for its tax liability share, the amount which the district court had awarded. Clearly, there is nothing in Jump which supports any of the arguments raised by the creditors’ committee. The creditors’ committee also contends that section 510(c) of the Bankruptcy Code requires that the claim of Darfield be, at least in part, subordinated to the claims of other creditors. Section 510(c), in pertinent part, provides that: [A]fter notice and a hearing, the court may— (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest; 11 U.S.C. § 510(c)(1). Section 510(c) was intended to codify existing principles of equitable subordination embodied in cases such as Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939), and Taylor v. Standard Gas & Electric Co., 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1939). H.R.Rep. No. 595, 95th Cong., 1st Sess. 359 (1977), reprinted in 1978 U.S. Code Cong. & Ad. News 5963. To establish that subordination is an appropriate remedy, the proponent must establish the following elements: (i)The claimant must have engaged in some type of inequitable conduct, (ii)The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant. (iii)Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Act. Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692, 700 (5th Cir.1977) (citations omitted). [A] claim may normally be subordinated only if its holder is guilty of misconduct. H.R.Rep. No. 595, 95th Cong. 1st Sess. 359 (1977). “Equitable subordination is a harsh remedy.” In re Featherworks Corp., 25 B.R. 634, 649 (Bkrtcy.E.D.N.Y.1982). It is a remedy that is not to be lightly invoked. Domination of a subsidiary by a parent standing alone is not sufficient to invoke the doctrine." }, { "docid": "18726120", "title": "", "text": "& Color Corp., 313 U.S. 215, 219, 61 S.Ct. 904, 907, 85 L.Ed. 1293, 1298 (1941) reh’g denied, 313 U.S. 600, 61 S.Ct. 1107, 85 L.Ed. 1552 (1941) (citations omitted) (emphasis supplied). See e.g., Taylor v. Standard Gas & Elec. Co., supra, 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed 669 (1939); Pepper v. Litton, supra, 308 U.S. 295, 306, 60 S.Ct. 238, 245, 84 L.Ed. 281, 289 (1939). Section 510(c) of the Bankruptcy Code provides: (e) Notwithstanding subsections (a) and (b) of this section, after notice and a hearing, the court may— (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest; or (2) order that any lien securing such a subordinated claim be transferred to the estate. 11 U.S.C. § 510(c). Section 510(c) is simply a codification of the Bankruptcy Court’s pre-Code equitable power to subordinate claims, interests, or relationships and to adjudicate equities among creditors. H.R.Rep. No. 595, 95th Cong., 1st Sess. 359 (1977) U.S.Code Cong. & Admin. News 1978, pp. 5787, 6315. Rather than specify the criteria to be used by Bankruptcy Courts in subordinating claims under § 510(c), Congress intended Bankruptcy Courts to be governed by judicially created principles of equitable subordination. S.Rep. No. 989, 95th Cong., 2d Sess. 74 (1978); U.S.Code Cong. & Admin. News 1978, pp. 5787, 5860; 124 Cong.Rec. S. 17,412 (Oct. 6, 1978); 124 Cong.Rec.H. 11,095 (September 28, 1978) (Statement of Rep. Edwards). See, e.g., Wilson v. Huffman (In re Missionary Baptist Foundation of America Inc.), 818 F.2d 1135, 1142 (5th Cir.1987). In Benjamin v. Diamond (Matter of Mobile Steel Co.), 563 F.2d 692 (5th Cir.1977), the Fifth Circuit extracted from existing case law three conditions that must be fulfilled before a Bankruptcy Court may exercise its power of equitable subordination: (i) The claimant must have engaged in some type of inequitable conduct. (ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred" }, { "docid": "7038760", "title": "", "text": "the same parties, it was clear to Goodman’s creditors that Realty was a separate but related real estate corporation, whereas Goodman was a manufacturing company. Cf. Commodity Futures Trading Comm. v. Comvest Trading Corp., 481 F.Supp. 438 (D.Mass.1979) (two corporations functioned as a common enterprise performing the exact same activities). Realty’s unsecured claims should not be subordinated to all other allowed claims. I have already found that Realty claims on the $500,000 note and $305,000 note are unsecured. The March 20, 1978 note is a valid secured obligation. Section 510(c) of the Bankruptcy Code provides that under the principles of equitable subordination, the Court may subordinate all or part of an allowed claim and transfer to the estate any lien securing such a subordinated claim. This section is intended to codify ease law, such as Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939) and Taylor v. Standard Gas and Electric Co., 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1938). These principles of case law have generally indicated that a claim may normally be subordinated only if its holder is guilty of misconduct. House Report No. 95-595, 95th Cong., 1st Sess. (1977) 359. Senate Report No. 95-589, 95th Cong., 2d Sess. (1978) 74, U.S.Code Cong. & Admin.News 1978, p. 5787. The issue before the Court is whether Realty (or its principals) was guilty of misconduct such that its claims should be subordinated. The only evidence of misconduct presented by the Trustee was that Realty’s loans have been misrepresented as unsecured in the financial statements. Three conditions must be satisfied before exercise of the power of equitable subordination is appropriate: i) the claimant must have engaged in some type of inequitable conduct; ii) the misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant; and iii) equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Act. In re Mobile Steel Co., 563 F.2d 692 (5th Cir. 1977). Since the $500,000 third note and the $305,000 first note are being" }, { "docid": "18500806", "title": "", "text": "the principles of equitable subordination. The Trustee relies solely on the fact that the claim arises from redemption of the Debtor’s stock. The Trustee asserts no inequitable conduct on the part of the Goodmans. Nor, in this Count, does the Trustee allege that the redemption was voidable as a fraudulent transfer or that it failed to comply with Massachusetts corporate law. Section 510(c) provides that “the court may ... under the principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim[.]” 11 U.S.C. § 510(c). The Bankruptcy Code does not define “under the principles of equitable subordination.” Envirodyne Industries, Inc. v. American Express (In re Envirodyne Industries, Inc.), 176 B.R. 825 (Bankr.N.D.Ill.1995). The legislative history provides in part that: [t]his section is intended to codify caselaw, such as Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939), and Taylor v. Standard Gas and Electric Co., 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1939) and is not intended to limit the court’s power in any way. The bankruptcy court will remain a court of equity[.] ... Nor does this subsection preclude a bankruptcy court from completely disallowing a claim in appropriate circumstances.... The court’s power is broader than the general doctrine of equitable subordination, and encompasses subordination on any equitable grounds. H.Rep. No. 595, 95th Cong., 1st Sess. (1977), reprinted in 1978 U.S.C.C.A.N. 5787, 5963, 6315. While the legislative history states that a bankruptcy court is authorized to subordinate a claim by reason of the claimant’s misconduct under the facts in the Pepper and Taylor cases, it also suggests that a bankruptcy court’s power to subordinate a claim on equitable grounds is more extensive. SPM Manufacturing Corp., 163 B.R. at 414. The seminal case on equitable subordination is Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692 (5th Cir.1977). The court in Mobile Steel established three conditions which must be satisfied before a claim can be equitably subordinated: (1) the claimant must have engaged in some type of inequitable" }, { "docid": "18603041", "title": "", "text": "by Bankruptcy Act ease law that Bankruptcy Courts possess equitable power to subordinate not only claims or interests but also relationships among creditors vis a vis their debtor: The power of the bankruptcy court to subordinate claims or adjudicate equities arising out of the relationship between the several creditors is complete. Sampsell v. Imperial Paper & Color Corp., 313 U.S. 215, 219, 61 S.Ct. 904, 907, 85 L.Ed. 1293, 1298 (1941) reh’g denied, 313 U.S. 600, 61 S.Ct. 1107, 85 L.Ed. 1552 (1941) (citations omitted) (emphasis supplied). See e.g., Taylor v. Standard Gas & Elec. Co., supra, 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1939); Pepper v. Litton, supra, 308 U.S. 295, 306, 60 S.Ct. 238, 245, 84 L.Ed. 281, 289 (1939). Section 510(c) of the Bankruptcy Code provides: (c) Notwithstanding subsections (a) and (b) of this section, after notice and a hearing, the court may— (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest; or (2) order that any lien securing such a subordinated claim be transferred to the estate. 11 U.S.C. § 510(c). Section 510(c) is a codification of the Bankruptcy Court’s pre-Code equitable power to subordinate claims, interests, or relationships and to adjudicate equities among creditors. H.R.Rep. No. 595, 95th Cong., 1st Sess. 359 (1977) U.S.Code Cong. & Admin.News, pp. 5787, 6315. Rather than specify the criteria to be used by Bankruptcy Courts in subordinating claims under § 510(c), Congress intended Bankruptcy Courts to be governed by judicially created principles of equitable subordination. S.Rep. No. 989, 95th Cong., 2d Sess. 74 (1978); U.S.Code Cong. & Admin.News 1978, pp. 5787, 5860; 124 Cong.Rec.S. 17,-412 (Oct. 6, 1978); 124 Cong.Rec.H. 11,095 (September 28, 1978) (Statement of Rep. Edwards). See, e.g., Wilson v. Huffman (In re Missionary Baptist Foundation of America Inc.), 818 F.2d 1135, 1142, 16 CBC.2d 1461 (5th Cir.1987). In Benjamin v. Diamond (Matter of Mobile Steel Co.), 563 F.2d 692, 3 BCD" }, { "docid": "18766199", "title": "", "text": "did not join the debtor in asserting this argument. . See also, 124 Cong.Rec. H 11,113 (daily ed. Sept. 28, 1978); S 17,430 (daily ed. Oct. 6, 1978) (remarks of Rep. Edwards and Sen. DeConcini), reprinted in, 1978 U.S.Code Cong. & Admin. News 6436, 6499, 6505, 6568 (\"Since the House Amendment authorizes subordination of claims only under principles of equitable subordination, and thus incorporates principles of existing case law, a tax claim would rarely be subordinated under this provision of the bill.”). . Congress specifically approved Pepper v. Litton and Taylor v. Standard Gas and Electric Co. when it enacted § 510(c). See, H.R.Rep. No. 595, 95th Cong., 1st Sess., 359 (1977), reprinted in, 1978 U.S.Code Cong. & Admin.News 5963, 6315 (“This section is intended to codify case law, such as Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939), and Taylor v. Standard Gas and Electric Co., 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1938) ...\"). . United States’ Memorandum In Opposition To The Subordination Of The IRS’ Tax Penalties, pp. 5-7. . Significantly, the Second Circuit Court of Appeals recognized § 510(b) of H.R. 8200, 95th Cong., 1st Sess. (1978) and the virtually identical § 510(b) of S. 2266, 95th Cong., 1st Sess. (1977) (currently § 510(c)(1)) as persuasive even if not authoritative support for its decision. . Congress has recognized this rationale elsewhere. When it prescribed a specific distribution scheme for chapter 7 liquidations, Congress stated: \"[Section 726(a)(4) ] provides that punitive penalties, including prepetition tax penalties, are subordinated to the payment of all other classes of claims, except claims for interest accruing during the case. In effect, these penalties are payable out of the estate’s assets only if and to the extent that a surplus of assets would otherwise remain at the close of the case for distribution back to the debtor.” S.Rep. No. 989, 95th Cong., 2d Sess., 97 (1978), reprinted in, 1978 U.S.Code Cong. & Admin.News 5787, 5883. Thus, Congress intended that the debtor and not his general creditors pay for his wrongdoing." }, { "docid": "12376370", "title": "", "text": "to become an oversecured creditor, he had an expectation of receiving interest were it necessary to sell the security. See Kerber Packing Co., 276 F.2d at 247; Bass, 271 F.2d at 132; United States v. Harrington, 269 F.2d 719, 724 (4th Cir.1959). It was equally well established by at least four courts of appeals that the third exception — allowing the payment of post-petition interest if the claim was oversecured — did not apply to liens which were nonconsensual in nature, such as tax liens, because the underlying reason for the exception did not apply. See Kerber Packing Co., 276 F.2d at 247; Mighell, 273 F.2d at 684; Bass, 271 F.2d at 131-32; Harrington, 269 F.2d at 721-24. Cf. Boston & Maine Corp., 719 F.2d at 497. In such cases the parties had not bargained concerning particular collateral, and the creditor therefore did not have an expectation of receiving interest. One noted distinction between tax liens and contractual liens is that tax liens often apply to all of the debtor’s property, whereas consensual liens are specific in nature and attach to only one asset. Kerber Packing Co., 276 F.2d at 247; Bass, 271 F.2d 131-32; Boston & Maine Corp., 719 F.2d at 497 n. 1. In light of the judicial interpretation under the Bankruptcy Act regarding the payment of postpetition interest, Debtor asserts that section 506(b) does nothing more than codify this third exception to the bar against paying postpetition interest. Several bankruptcy courts, and at least one district court and one commentator, have sided with Debtor in concluding that section 506(b) disallows postpetition interest on prepetition nonconsensual secured claims by virtue of the prior judicial interpretation of the Bankruptcy Act. See, e.g., In re Newbury Cafe, Inc., 72 B.R. 478 (Bankr.E.D.Mass.1987) (postpetition interest is not mandated under section 506(b)); In re Dan-Ver Enters., Inc., 67 B.R. 951 (W.D.Pa.1986) (language is ambiguous and legislative history supports conclusion that Congress intended to codify pre-Code law), aff’g 60 B.R. 568 (Bankr.W.D.Pa.1986); In re Granite Lumber Co., 63 B.R. 466 (Bankr.D.Mont.1986) (in dicta, court notes that section 506(b) codifies preexisting law allowing interest" }, { "docid": "2361196", "title": "", "text": "before the Court in Perez. The conflict is similar to that present when a state statute requires payment of state taxes as a condition to issuance of a liquor license. Bankruptcy court decisions in this district have invalidated application of such statutes to Code debtors because of their conflict with the priority scheme of the Bankruptcy Code. Under the teaching of Perez, it makes no difference that the purpose of section 45 may be to promote certainty in the enforcement of a contract reflecting a significant business transaction. It is enough that the effect of the statute’s application is to conflict with federal law. A separate order has issued subordinating the claim. . Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939); Taylor v. Standard Gas & Electric Co., 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1939); Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692 (5th Cir.1977). . Comstock v. Group of Institutional Investors, 335 U.S. 211, 68 S.Ct. 1454, 92 L.Ed. 1911 (1948). . E.g., Consove v. Cohen (In re Roco Corp.), 701 F.2d 978, 982 (1st Cir.1983); Gold v. Lippman (In re Flying Mailmen Serv., Inc.), 539 F.2d 866, 870 (2d Cir.1976); Robinson v. Wangemann, 75 F.2d 756, 757 (5th Cir.1935). . 11 U.S.C. § 510(c) (1988). . H.R.Rep. No. 595, 95th Cong., 1st Sess. 359 (1977) reprinted in 1978 U.S.C.C.A.N. 5787, 5963, 6315. . S.Rep. No. 989, 95th Cong.2d Sess. 74 (1978), reprinted in, 1978 U.S.C.C.A.N. 5787, 5860. . 124 Cong.Rec. HI 1,095 (daily ed. Sept. 20, 1978); S17,412 (daily ed. Oct. 6, 1978), reprinted in, 1978 U.S.C.C.A.N. 5787, 5963, 6315, 6436. . E.g., In re Virtual Network Services Corp., 902 F.2d 1246 (7th Cir.1990). . Id. See also Burden v. United States (In re Burden), 917 F.2d 115 (3d Cir.1990) (court persuaded by floor statements that Congress intended courts to be able to equitably subordinate tax penalty claim in chapter 13 by reason of the nature of the claim; case remanded for trial court to consider equities, which need not include claimant misconduct). . 75 F.2d 756" }, { "docid": "14282243", "title": "", "text": "have received absent CVC’s misconduct, it is necessary to restore the Estate’s funds ‘by subordinating CVC’s share of distribution by the amount of fees and expenses incurred by professionals who are to be paid from estate assets that would not have been incurred but for CVC’s breach of its fiduciary duty.’ In re Papercraft Corp., Memorandum Order *11 (W.D.Pa. February 20, 2002). We agree with the District Court’s logic. In the exercise of its powers as a court of equity, the bankruptcy court may subordinate claims for cause, applying traditional principles of equitable subordination. 11 U.S.C. § 510(c); Pepper v. Litton, 308 U.S. 295, 307-11, 60 S.Ct. 238, 84 L.Ed. 281 (1939); Taylor v. Standard Gas & Elec. Co., 306 U.S. 307, 322, 59 S.Ct. 543, 83 L.Ed. 669 (1939); see also Comstock v. Group of Institutional Investors, 335 U.S. 211, 229, 68 S.Ct. 1454, 92 L.Ed. 1911 (1948) (narrowing the application of equitable subordination to situations in which bad faith by the claimant is found). Although § 510(c) codifies the doctrine of equitable subordination, it does not detail the requirements of such subordination. Instead, it merely states that the doctrine is to be applied “under the principles of equitable subordination,” and the legislative history states that Congress intended that the courts develop these principles. 124 Cong. Rec. 32,398 (1978) (statement of co-sponsor Rep. Edwards); 124 Cong. Rec. 33,998 (statement of co-sponsor Sen. De-Concini); Burden v. United States, 917 F.2d 115, 118 (3d Cir.1990). The doctrine of equitable subordination is remedial, and the goal “is to undo or to offset any inequality in the claim position of a creditor that will produce injustice or unfairness to other creditors in terms of the bankruptcy results.”’ Burden, 917 F.2d at 117 (citation omitted); see also In re Papercraft Corp., 160 F.3d 982, 991 (3d Cir.1998) (stating that the purpose of equitable subordination is “to compensate in a manner that will permit a ... remedy to the injury that has been suffered by those [creditors] who will benefit from the subordination”). “ ‘[T]he bankruptcy court has the power to sift the circumstances surrounding" } ]

[ { "docid": "22681528", "title": "", "text": "any such enlargement in the scope of its provisions. 56 Cong. Rec., Pt. 12, App. p. 698; 65th Cong. 3d sess., Sen. Rep. No. 617, p. 17. We cannot, however, regard the slight negative inference which might be drawn from the failure of these chairmen to point out the enlargement of the class of organizations made subject to the excise tax, as sufficient to overcome the evidence of the legislative intention drawn from the plain and unambiguous language of the Act itself, emphasized by the contrast with that of the Act of 1916 which it supplanted. •Nor can we agree with the contention that the definition clause of the Act is not to be held applicable to the excise tax provision on the ground that the Act consolidated many former taxing acts and its general definitions may have been inadvertently extended to the excise tax provision without any actual intention of departing from the language of the former statute in this respect. This is not a mere revision and consolidation of former statutes to which a new interpretation is not to be given without some substantial change in phraseology. McDonald v. Hovey, 110 U. S. 619; Buck Stove Co. v. Vickers, 226 U. S. 205. It is a new statute, supplanting and changing the former statutes in many respects, and in which there is a significant change of phraseology, incorporated in the general definition clause made applicable, expressly, to every provision of the Act. Nor does the language of the Act in this respect call for the application of the established rule that in the interpretation of statutes levying taxes their provisions are not to be extended by implication beyond the clear import of the language used, and in case of doubt are to be construed most strongly against the Government and in favor of the taxpayer. Gould v. Gould, 245 U. S. 151, 153; United States v. Merriam, 263 U. S. 179, 187. Here the language of the Act is specific, leaving no substantial doubt as to its meaning; and the taxpayers are seeking by implication to limit its" } ]

[ { "docid": "23126596", "title": "", "text": "Tax Court itself observed in rebuffing another attempt of respondent to extend these penalties by implication: “If the legislature had intended such a result it would have been a simple matter so to provide.” [Anthony Delsanter, supra, 28 T.C. at page 862.] Moreover, inasmuch as the regulation imposes a penalty in addition to one expressly imposed by the statute itself for the same omission, we are unable to perceive wherein the regulation is necessary to effectuate the statutory taxing scheme. Section 294(d) of the Internal Revenue Code of 1939 is penal in nature and to be strictly construed. [Stephan v. Commissioner, 5 Cir., 1952, 197 F.2d 712; Barnwell v. United States, supra, 58-1 U.S.T.C. Par. 9374; Davis v. Dudley, D.C.W.D.Pa.1954, 124 F.Supp. 426, 429; see F. C. C. v. American Broadcasting Co., 1954, 347 U.S. 284, 296, 74 S.Ct. 593, 98 L.Ed. 699.] “Penalties are never extended by implication” [Elliott v. Railroad Co., 1878, 99 U.S. 573, 576, 25 L.Ed. 292; United States v. J. H. Winchester & Co., 2 Cir., 1930, 40 F.2d 472], and “all questions in doubt must be resolved in favor of those from whom the penalty is sought.” [Hatfried, Inc., v. Commissioner, 3 Cir., 1947, 162 F.2d 628, 633.] Furthermore, even if the exactions involved be treated as “additions to Tax,” as they are denominated by § 294 of the 1939 Code, the regulation runs counter to the long established rule that “statutes levying taxes * * * are not to be extended by implication beyond the clear import of the language used.” [United States v. Merriam, 1923, 263 U.S. 179, 187-188, 44 S.Ct. 69, 71, 68 L.Ed. 240; Crooks v. Harrelson, 1930, 282 U.S. 55, 61, 51 S.Ct. 49, 75 L.Ed. 156; Reinecke v. Gardner, 1928, 277 U.S. 239, 244, 48 S.Ct. 472, 72 L.Ed. 866; Gould v. Gould, 1917, 245 U.S. 151, 153, 38 S.Ct. 53, 62, L.Ed. 211; cf. Parker Pen Co. v. O’Day, 7 Cir., 1956, 234 F.2d 607, 609.] Mindful of the cogent reasoning of the Tax Court and District Court opinions sustaining the regulation, we nevertheless are of opinion" }, { "docid": "2952153", "title": "", "text": "(3) land — the tribal land upon which taxpayer held a grazing permit. Taxpayer urges that he is entitled to a reversal for the following reasons: (1) Income derived by a qualified Indian from tribal lands is exempt. (2) As a member of the tribe, he is a co-owner of the tribal land and is entitled to exemption from income derived therefrom. (3) The livestock, other property, or money furnished to a rehabilitation client of the Rehabilitation Program of the Cheyenne River Sioux Tribe is impressed with the trust and such property, and any increase thereof, is exempt from federal income tax. Before discussing the specific points raised, we shall consider general principles applicable to all points. The general rule is that the reach of income tax statutes is broad; that exemptions from taxation are'matters of legislative grace and that exemptions must be construed with restraint in light of the policy to tax income comprehensively. Commissioner of Internal Revenue v. Jacobson, 336 U.S. 28, 49, 69 S.Ct. 358, 93 L.Ed. 477, 7 A.L.R.2d 857; United States v. Stewart, 311 U.S. 60, 71, 61 S.Ct. 102, 85 L.Ed. 40; Deputy v. Du Pont, 308 U.S. 488, 493, 60 S.Ct. 363, 84 L.Ed. 416; Heiner v. Colonial Trust Co., 275 U.S. 232, 235, 48 S.Ct. 65, 72 L.Ed. 256. Courts have recognized that treaties and statutes relating to the right of noncompetent Indians should be liberally construed in favor of Indians. Squire v. Capoeman, 351 U.S. 1, 6-7, 76 S.Ct. 611; Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 74 L.Ed. 478. However, such principle comes into play only if such statute or treaty contains language which can reasonably be construed to confer income exemptions. Blackbird v. Commissioner of Internal Revenue, 10 Cir., 38 F.2d 976, supports taxpayer’s position asserted here that the broad language of the income tax statutes does not reach Indians. In Superintendent Five Civilized Tribes etc. v. Commissioner of Internal Revenue, 295 U.S. 418, 55 S.Ct. 820, 79 L.Ed. 1517, the Supreme Court observes that Blackbird does not harmonize with the holding of Choteau v. Burnet," }, { "docid": "2952154", "title": "", "text": "States v. Stewart, 311 U.S. 60, 71, 61 S.Ct. 102, 85 L.Ed. 40; Deputy v. Du Pont, 308 U.S. 488, 493, 60 S.Ct. 363, 84 L.Ed. 416; Heiner v. Colonial Trust Co., 275 U.S. 232, 235, 48 S.Ct. 65, 72 L.Ed. 256. Courts have recognized that treaties and statutes relating to the right of noncompetent Indians should be liberally construed in favor of Indians. Squire v. Capoeman, 351 U.S. 1, 6-7, 76 S.Ct. 611; Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 74 L.Ed. 478. However, such principle comes into play only if such statute or treaty contains language which can reasonably be construed to confer income exemptions. Blackbird v. Commissioner of Internal Revenue, 10 Cir., 38 F.2d 976, supports taxpayer’s position asserted here that the broad language of the income tax statutes does not reach Indians. In Superintendent Five Civilized Tribes etc. v. Commissioner of Internal Revenue, 295 U.S. 418, 55 S.Ct. 820, 79 L.Ed. 1517, the Supreme Court observes that Blackbird does not harmonize with the holding of Choteau v. Burnet, 283 U.S. 691, 51 S.Ct. 598, 75 L.Ed. 1353, and holds that income on trust funds held by the United States for a noncompetent Indian are not exempt from income taxation. The Court holds: “The general terms of the taxing act include the income under consideration and if exemption exists it must derive plainly from agreements with the Creeks or some act of Congress dealing with their affairs. ***** “The taxpayer here is a citizen of the United States, and wardship with limited power over his property does not, without more, render him immune from the common burden.” 295 U.S. 418, 420-421, 55 S.Ct. 820, 822. The holding in Superintendent etc. v. Commissioner etc. is quoted and approved in Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 116, 80 S.Ct. 543, 4 L.Ed.2d 584. Both parties place considerable reliance upon Squire v. Capoeman, supra. Since Capoeman involved only allotted lands, the Supreme Court did not have before it nor did it expressly decide the precise issue here raised. Isolated statements may be found" }, { "docid": "4290573", "title": "", "text": "to reimburse his mother-in-law; but, as above stated, I think that he was under a legal obligation as well. It is said that the taxpayer is not entitled to the deduction because not incurred in a transaction entered into for profit and hence not within the language of the section under which it is claimed. I think, however, that this gives too narrow an interpretation to the section. It is well settled that a taxing statute is to be strictly construed against the government and in favor of the taxpayer. U. S. v. Merriam, 263 U. S. 179, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547; Shwab v. Doyle, 258 U. S. 529, 42 S. Ct. 391, 66 L. Ed. 747, 26 A. L. R. 1454; Gould v. Gould, 245 U. S. 151, 38 S. Ct. 53, 62 L. Ed. 211. And a liberal construction is to be given words of exception confining the operation of the tax. Eidman v. Martinez, 184 U. S. 578, 583, 22 S. Ct. 515, 46 L. Ed. 697; 33 C. J. 286, 306. While the section relied on authorizes deductions of losses only on transactions entered into for profit, I think that the phrase “for profit” was intended to distinguish ordinary business transactions, although not a part of the regular business of the taxpayer, from such transactions as those entered into for personal convenience or pleasure or for purposes of charity, and was not intended to limit the deduction to transactions from which the taxpayer personally intended to realize a profit for himself. Thus, a loss sustained in the purchase and sale of a home, or in operating a charity hospital, or in maintaining a stable of blooded horses for pleasure, would clearly not be a deductible loss. But there is no reason why loss upon an ordinary business transaction, such as a purchase of corporate stock, should not be deductible, even though the taxpayer may have known that he would sustain a loss and not a profit when he made it, and may have acted not for profit" }, { "docid": "22454622", "title": "", "text": "raised. We are satisfied this case is one of first impression, and the question is squarely before this court as to the construction of subsection (7) of section 234 (a) of the Revenue Act of 1918. Some legal.propositions argued are assumedly beyond controversy; e. g.: (a) A statute should receive a natural, and not a strained, construction, and its plain, obvious, and rational meaning should be adhered to. Lynch v. Alworth-Stephens Co. (C. C. A.) 294 F. 190. (b) Tax laws, if doubtful, are to be construed in favor of the taxpayer. Gould v. Gould, 245 U. S. 151, 38 S. Ct. 53, 62 L. Ed. 211; United States v. Merriam, 263 U. S. 179, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547. (c) The term “property,” in the act under consideration, is not used in a restricted sense. Lynch, Executrix, etc., v. Alworth-Stephens Co., 267 U. S. 364, 45 S. Ct. 274, 69 L. Ed. 660. (d) Good will is property of an intangible nature, and the term “property” includes good will. 28 Corpus Juris, 730; Metropolitan Bank v. St. Louis Despatch Co., 149 U. S. 436, 13 S. Ct. 944, 37 L. Ed. 799; Coca-Cola Bottling Co. v. Coca-Cola Co. (D. C.) 269 F. 796; Washburn v. National Wall-Paper Co. et al., 81 F. 17, 26 C. C. A. 312. (e) Good will has no existence, except in connection with a continuing business. Kaufmann v. Kaufmann, 239 Pa. 42, 86 A. 634; Metropolitan Nat. Bank v. St. Louis Dispatch Co. et al. (C. C.) 36 F. 722. (f) It may be bought and sold in connection therewith as an incident thereof. Camden v. Stuart, 144 U. S. 104,12 S. Ct. 585, 36 L. Ed. 363; Coca-Cola Bottling Co. v. Coca-Cola Co. (D. C.) 269 F. 797, 805; Commonwealth v. Kentucky Distilleries & Warehouse Co., 132 Ky. 521, 116 S. W. 766, 21 L. R. A. (N. S.) 30, 136 Am. St. Rep. 186, 18 Ann. Cas. 1156; Sawilowsky v. Brown (C. C. A.) 288 F. 533. With these general propositions in mind, we" }, { "docid": "16182816", "title": "", "text": "which the estate is being administered; and “(2) An exemption of $50,000.” Comp. St. § 6336%d. The applicable regulation promulgated by the Treasury Department under date of May, 1917, is as follows: “Art. XXI. The federal estate tax is not determined, does not attach, and cannot be assessed until the net estate upon which it is based has been exactly established. The estate tax, therefore, cannot be deducted from the gross estate to determine the taxable net estate.” Plaintiffs attack this regulation as inconsistent with the statute; also as “unconstitutional” — a claim so obviously unsound as to call for no discussion. The Commissioner determined the net value of the Winslow estate to be $4,837,-860.63, and computed the tax at $489,613.61, by applying the appropriate percentages to the blocks as stated in section 201, but without deducting the tax, in order to determine the amount of the tax. Plaintiffs’ learned counsel, in an elaborate argument, urge that this method is erroneous; they contend that the act imposes successive taxes, equal to percentages of the separate blocks of the net estate, each of. which, exclusive of the tax, constitutes a separate unit of measure. In the exaet words of counsel for plaintiffs: “The question presented involves the interpretation of that act, to ascertain whether the amount of the tax itself, imposed by the act, should be included in the ‘measure of that tax.’ ” We agree with plaintiffs’ counsel that this problem of statutory construction must be determined under the familiar rule that, in taxing statutes, doubt about the construction must be resolved against the government and in favor of the taxpayer. Gould v. Gould, 245 U. S. 151, 153, 38 S. Ct. 53, 62 L. Ed. 211; United States v. Merriam, 263 U. S. 179, 187, 188, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547. But we are not able in adopt the view that there is any reasonable doubt about the construction of this statute. Weight must be given to the contemporaneous construction of the department charged with the enforcement of the statute. Malley" }, { "docid": "8371123", "title": "", "text": "employed. If that be plain, it is the duty of the courts to enforce the law as written, provided it be within the constitutional authority of the legislative body which passed it.’ Again, in United States v. Merriam, 263 U.S. 179, 187, 44 S.Ct. 69, 71, 68 L.Ed. 240, 29 A.L.R. 1547, the court said: ‘But in statutes levying taxes the literal meaning of the words employed is most important, for such statutes are not to be extended by implication beyond the clear import of the language used.’ Again, in United States v. Missouri P. R. Co., 278 U.S. 269, 277, 49 S.Ct. 133, 136, 73 L.Ed. 322, the court said: ‘We are therefore bound by the words employed and are not at liberty to conjure up conditions to raise doubts in order that resort may be had to construction. * * * Construction may not be substituted for legislation.’ “Another rule often overlooked in construing a revenue statute is that in a doubtful situation the taxpayer is entitled to the benefit of the doubt. As was said by the court in United States v. Merriam, supra, 263 U.S. at page 188, 44 S.Ct. at page 71, 68 L. Ed. 240, 29 A.L.R. 1547: ‘If the words are doubtful, the doubt must be resolved against the government and in favor of the taxpayer.’ ” We do not consider that the law in this area of statutory construction has changed appreciably since Judge Major expressed it. Nevertheless, the Commissioner seeks to avoid the consequences of strict construction by invoking the judicially developed rule which justifies “a departure from the letter of the law” when adherence to the letter would cause an absurdity “so gross as to shock the general moral or common sense” and when it is plain that Congress intended “that the letter of the statute is not to prevail.” Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930). The best indication of the intent of Congress is, of course, the literal wording of the statute itself, which we have held is not ambiguous." }, { "docid": "15294262", "title": "", "text": "v. Dennis, 116 U.S. 665, 668, 6 S.Ct. 625, 29 L.Ed. 770; Heiner v. Colonial Trust Co., 275 U.S. 232, 235, 48 S.Ct. 65, 72 L.Ed. 256. A provision granting it is construed against the taxpayer in respect to all ambiguities, and immunity is not founded upon doubtful phrases or ambiguous language. Hoge v. Railroad Co., 99 U.S. 348, 25 L.Ed. 303; Bank of Com merce v. Tennessee, 104 U.S. 493; 26 L.Ed. 810; Bank of Commerce v. Tennessee, 161 U.S. 134, 146, 16 S.Ct. 456, 40 L.Ed. 645; Cornell v. Coyne, 192 U.S. 418, 24 S.Ct. 383, 48 L.Ed. 504; Millsaps College v. Jackson, 275 U.S. 129, 48 S.Ct. 94, 72 L.Ed. 196; Riverdale Co-op. Creamery Ass’n v. Commissioner (C.C.A.) 48 F.(2d) 711; Sun-Herald Corporation v. Duggan (C.C.A.) 73 F.(2d) 298; Retailers Credit Ass’n v. Commissioner (C.C.A.) 90 F.(2d) 47. An asserted exemption will be denied unless it is granted by statute in plain terms. United States Trust Co. of New York v. Anderson (C.C.A.) 65 F.(2d) 575, 89 A.L.R. 994, certiorari denied 290 U.S. 683, 54 S.Ct. 120, 78. L.Ed. 589. We think it cannot be said that the exemption provision with the language of exception evidences a plain and controlling legislative intent that gift taxes shall be included in the exemption. Appropriate application of the principles just stated leads to the conclusion that in the absence of a plainly granted immunity none exists. This conclusion finds support in Hamersley v. United States (Ct.Cl.) 16 F.Supp. 768. The order of the Board of Tax Appeals is sustained. 30 Stat. 448. 32 Stat. 96. 39 Stat. 756. PHILLIPS, Circuit Judge (dissenting). The first federal gift tax was imposed by the Revenue Act of 1924, 43 Stat. 253, 313, § 319 et seq. It remained in force for the years 1924 and 1925 and was repealed as of January 1, 1926, by the Revenue Act of 1926, 44 Stat. 9, 126, § 1200. . A federal gift tax was again imposed by the Revenue Act of 1932, 47 Stat. 173, 245, § 501 (26 U.S.C.A. § 550 and note). It" }, { "docid": "21741219", "title": "", "text": "result here produced is absurd, albeit there may be no sound reason for saying that while net loss shall not be an item in the computation of net income for the first succeeding year, it shall be in the computation of net income for the second succeeding year. Whatever the undisclosed reason, the statute does make the distinction by the very language employed. It thus seems to us that there is scarcely more justification for torturing the language of one clause in the statute than for doing the same thing with respect to the other clause. That is to say, it would appear to be about as logical to contend that uniformity should be produced by construing the statute so as to allow deductions with respect to both years, as by construing it so as to allow merely credits for both years. We are also not unmindful of the well-established doctrine that regulations made by the Commissioner of Internal Revenue, in respect to the assessment and collection of taxes, have the force and effect of statutes, if made with the approval of the Secretary of the Treasury, and pursuant to statutory authority. Maryland Casualty Co. v. United States, 251 U. S. 342, 40 S. Ct. 155, 64 ,L. Ed. 297; Brewster v. Gage, 280 U. S. 327, 50 S. Ct. 115, 74 L. Ed. 457. But in the present instance, we believe that the commissioner exceeded his authority under the statute^ Also, should we assume ambiguity to exist in the phraseology, in construing a tax statute of this kind, any such ambiguity should be resolved in favor of the taxpayer. Gould v. Gould, 245 U. S. 151, 38 S. Ct. 53, 62 L. Ed. 211; U. S. v. Merriam, 263 U. S. 179, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547; Reineeke v. Trust Co., 278 U. S. 339, 49 S. Ct. 123, 73 L. Ed. 410, 66 A. L. R. 397. Lastly, if further support were needed for the conclusion here adopted, it is to be found in the form in which section 204" }, { "docid": "23213559", "title": "", "text": "estate or trust, so that the fiduciary will pay the tax upon any excess of the net income of the estate or trust computed as a unit over the aggregate distributive shares”; and that the beneficiary is not entitled to any deduction on account of depreciation or capital losses. Payments were made under protest by the plaintiffs in accordance with this regulation. They contend that the tax should have been assessed and collected upon their proportional part or distributive share of the net ineome of the estate, and seek to recover the difference between what the tax would have been if assessed in accordance with their claim and that which was collected. They say that the language of the statute is positive, clear, and precise, and admits of no doubt, and that, as this is a statute levying taxes, it is not to be extended by implication beyond the clear import of the lan guage used, and that, if there is. any doubt, that doubt must be resolved against the government and in favor of the taxpayer, citing Gould v. Gould, 245 U. S. 151, 153, 38 S. Ct. 53, 62 L. Ed. 211; United States v. Merriam, 263 U. S. 179, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547. The language of the. statute is contradictory and. confusing, if it is to be given a strictly literal interpretation, and this is ■ especially true if the statute is to be considered by itself and apart from the other sections of the act. Section 219 must be interpreted and construed as a part of the whole act, and having in mind the purpose sought to be accomplished by it. The court cannot read into the statute anything- that is not there; but it must look at the whole act, having its purpose in mind, and determine whether the interpretation placed by the Treasury Department upon' section 219- of the act is reasonably within its terms. It is .a. well-established rule of the federal courts that a contemporaneous construction given to an act of Congress by" }, { "docid": "23126597", "title": "", "text": "and “all questions in doubt must be resolved in favor of those from whom the penalty is sought.” [Hatfried, Inc., v. Commissioner, 3 Cir., 1947, 162 F.2d 628, 633.] Furthermore, even if the exactions involved be treated as “additions to Tax,” as they are denominated by § 294 of the 1939 Code, the regulation runs counter to the long established rule that “statutes levying taxes * * * are not to be extended by implication beyond the clear import of the language used.” [United States v. Merriam, 1923, 263 U.S. 179, 187-188, 44 S.Ct. 69, 71, 68 L.Ed. 240; Crooks v. Harrelson, 1930, 282 U.S. 55, 61, 51 S.Ct. 49, 75 L.Ed. 156; Reinecke v. Gardner, 1928, 277 U.S. 239, 244, 48 S.Ct. 472, 72 L.Ed. 866; Gould v. Gould, 1917, 245 U.S. 151, 153, 38 S.Ct. 53, 62, L.Ed. 211; cf. Parker Pen Co. v. O’Day, 7 Cir., 1956, 234 F.2d 607, 609.] Mindful of the cogent reasoning of the Tax Court and District Court opinions sustaining the regulation, we nevertheless are of opinion that Treasury Regulation 111 § 29.294-1 (b) (3) (i) [26 C.F.R. (1949)] is invalid insofar as it provides that “[i]n the event of a failure to file the required declaration, the amount of the estimated tax for the purposes of this provision is zero.” In so holding we are mindful too that, as the Tax Court and the District Courts have pointed out, Treasury regulations are presumptive!y valid. But we think that in this instance considerations of reason and policy involved in construing statutes levying taxes and imposing penalties outweigh the presumption of validity; that the quoted provision of the regulation is, in other words, “unreasonable and plainly inconsistent with the revenue [statute],” and so cannot be sustained. [Commissioner of Internal Revenue v. South Texas Lumber Co., 1948, 333 U.S. 496, 501, 68 S.Ct. 695, 92 L.Ed. 831.] This conclusion is buttressed by the fact that it is in accord with that reached by the majority of the District Courts which have considered the problem. [Barnwell v. United States, supra, 58-1 U.S.T.C. Par. 9374; Erwin" }, { "docid": "15294260", "title": "", "text": "explanation of the language contained in the act may lie in the fact that the two kinds of excises with which previous legislation dealt were borne in mind while no consideration was accorded the third kind to which Congress had not addressed itself in the form of specific legislation. Whatever the reason, Congress elected to make a specific declaration of exception in respect to the two kinds and to withhold it as to all others, either existing or which might be subsequently imposed. The reason, wisdom, or policy underlying the action was exclusively for Congress. But, the three species of excises are closely allied in structure and purpose (Burnet v. Guggenheim, supra), and no persuasive reason has been suggested which may have evoked a legislative desire that the bonds be subject to two of them and free from the third. In view of the cognate nature of such excises, it is difficult to perceive any basis for such a purpose. It is further argued that all parts of the statute must be reconciled and given consistent, harmonious, and sensible effect if that can be done; that all of the words contained in it must be given effect; that it will not be presumed that Congress used extra and idle verbiage; and that a taxing statute should be liberally construed in favor of the taxpayer. These are recognized rules of a general nature for guidance in the interpretation of statutes. But, the maxim that a taxing statute should be liberally construed in favor of the taxpayer (Gould v. Gould, 245 U.S. 151, 38 S.Ct. 53, 62 L.Ed. 211; United States v. Merriam, 263 U.S. 179, 44 S.Ct. 69, 68 L.Ed. 240, 29 A.L.R. 1547; Hecht v. Malley, 265 U.S. 144, 44 S.Ct. 462, 68 L.Ed. 949) applies only where there is doubt, and it is not unyielding (Burnet v. Guggenheim, supra). Furthermore, it has no application in dealing with an asserted exemption. Exemption is not lightly inferred or readily implied. Philadelphia & Wilmington R. R. v. Maryland, 10 How. 376, 393, 13 L.Ed. 461; Vicksburg, S. & P. R. R. Co." }, { "docid": "22454621", "title": "", "text": "the construction was neither uniform, general, nor long-continued; neither is the statute ambiguous. Such departmental construction cannot be given the force and effect of law. Compare United States v. G. Falk & Brother, 204 U. S. 143, 27 S. Ct. 191, 51 L. Ed. 411; National Lead Co. v. United States, 252 U. S. 140, 146, 40 S. Ct. 237, 64 L. Ed. 496.” The only case cited or that we have been able to find which bears directly on the question at issue is Haberle Crystal Springs Brewing Co. v. Jesse W. Clark, Collector of Internal Revenue. A referee’s opinion therein construes the statute as contended for by plaintiff. It is of note that the opinion of said referee has not as yet been adopted by the United States District Court of the Northern District of New York, where the case is pending. The ease of Kentucky Tobacco Products Co. v. Lucas, Collector of Internal Revenue (D. C.) 5 F.(2d) 723, refers to the statute in question, but does not discuss the proposition here raised. We are satisfied this case is one of first impression, and the question is squarely before this court as to the construction of subsection (7) of section 234 (a) of the Revenue Act of 1918. Some legal.propositions argued are assumedly beyond controversy; e. g.: (a) A statute should receive a natural, and not a strained, construction, and its plain, obvious, and rational meaning should be adhered to. Lynch v. Alworth-Stephens Co. (C. C. A.) 294 F. 190. (b) Tax laws, if doubtful, are to be construed in favor of the taxpayer. Gould v. Gould, 245 U. S. 151, 38 S. Ct. 53, 62 L. Ed. 211; United States v. Merriam, 263 U. S. 179, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547. (c) The term “property,” in the act under consideration, is not used in a restricted sense. Lynch, Executrix, etc., v. Alworth-Stephens Co., 267 U. S. 364, 45 S. Ct. 274, 69 L. Ed. 660. (d) Good will is property of an intangible nature, and the term “property”" }, { "docid": "23241777", "title": "", "text": "that the clause exempting from taxation “obligations of a State a » a or any poetical subdivision thereof” may be so interpreted as to embrace almost anything which a state or municipality is bound to pay and may thus exempt income which is within the taxing power of the United States. The question is how broadly the word “obligations” is to be construed and just what ineome is covered by the exemption. In determining the scope of the word we must bear in mind the settled rule of construction that “tax exemptions are never lightly to be inferred” (Heiner v. Colonial Trust Co., 275 U. S. at page 235, 48 S. Ct. 65, 66, 72 L. Ed. 256), and will not be applied to a particular ease unless granted in the statute in plain terms (Denman v. Slayton, 282 U. S. at page 519, 51 S. Ct. 269, 75 L. Ed. 500; Phœnix Insurance Co. v. Tennessee, 161 U. S. at page 177, 16 S. Ct. 471, 40 L. Ed. 660; Chicago, etc., Railroad v. Guffey, 120 U. S. at page 575, 7 S. Ct. 693, 30 L. Ed. 732; Vicksburg, etc., Railroad Co. v. Dennis, 116 U. S. at page 668, 6 S. Ct. 625, 29 L. Ed. 770; Philadelphia, etc., Railroad v. Maryland, 10 How. at page 393, 13 L. Ed. 461). The phrase exempting “interest upon * * * the obligations of a state * * * or any political subdivision thereof” has been used in every Revenue Act since the adoption of the Sixteenth Amendment to the Constitution of the United States. At the time that amendment was proposed, it was argued that it would place the borrowing capacity of the states at the mercy of the federal taxing power. On February 8, 1910, Senator Borah submitted to the Senate a resolution No. 175 directing the Judiciary Committee to report whether “the proposed amendment * * * would if adopted authorize Congress to lay a tax upon incomes derived from state bonds and other municipal securities or would authorize Congress to tax the instrumentalities or means" }, { "docid": "15299637", "title": "", "text": "with reference to which the testator may be presumed to have made testamentary disposition of his property, is not without some force as indicating his intent and purpose. Compare Klein v. United States, 283 U. S. 231, 234, 51 S. Ct. 398, 75 L. Ed. 996. We are sensible also of the rule that we should not lightly depart from the language of a, statute in order to escape consequences which are thought to entail hardship, thereby opening a way to tax evasion. Crooks v. Harrelson, 282 U. S. 55, 51 S. Ct. 49, 75 L. Ed. 156; Schoenheit v. Lucas (C. C. A. 4) 44 F.(2d) 476. Equally, however, it is to be remembered that the courts are “bound to carry the will into effect, if it can see a general intention consistent with the rule of law,” and, if possible, so to construe the language of a will as to support the charity. Charitable bequests are favorites of the law. Furthermore, every presumption is to be indulged against intestacy. If this devise under the terms of article 13 is not a charitable bequest, the estate is intestate to the extent of $589,009. The intention of the testator is to bo gathered, not from the language of a clause, standing alone, hut from the four comers of the will, and by a consideration of the character and temperament of the testator himself as revealed by the record. Gossett v. Swinney (C. C. A. 8) 53 F.(2d) 772. “Taxation is an intensely practical matter, and laws in respect of it should be construed and applied with a view of avoiding, so far as possible, unjust and oppressive consequences.” Farmers’ Loan & Trust Co. v. Minnesota, 280 U. S. 204, 212, 50 S. Ct. 98, 100, 74 L. Ed. 371., 65 A. L. R. 1000. Doubts are resolved against the government. Gould v. Gould, 245 U. S. 151, 38 S. Ct. 53, 62 L. Ed. 211; United States v. Merriam, 263 U. S. 179, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547; Red Wing Malting Co." }, { "docid": "15294261", "title": "", "text": "consistent, harmonious, and sensible effect if that can be done; that all of the words contained in it must be given effect; that it will not be presumed that Congress used extra and idle verbiage; and that a taxing statute should be liberally construed in favor of the taxpayer. These are recognized rules of a general nature for guidance in the interpretation of statutes. But, the maxim that a taxing statute should be liberally construed in favor of the taxpayer (Gould v. Gould, 245 U.S. 151, 38 S.Ct. 53, 62 L.Ed. 211; United States v. Merriam, 263 U.S. 179, 44 S.Ct. 69, 68 L.Ed. 240, 29 A.L.R. 1547; Hecht v. Malley, 265 U.S. 144, 44 S.Ct. 462, 68 L.Ed. 949) applies only where there is doubt, and it is not unyielding (Burnet v. Guggenheim, supra). Furthermore, it has no application in dealing with an asserted exemption. Exemption is not lightly inferred or readily implied. Philadelphia & Wilmington R. R. v. Maryland, 10 How. 376, 393, 13 L.Ed. 461; Vicksburg, S. & P. R. R. Co. v. Dennis, 116 U.S. 665, 668, 6 S.Ct. 625, 29 L.Ed. 770; Heiner v. Colonial Trust Co., 275 U.S. 232, 235, 48 S.Ct. 65, 72 L.Ed. 256. A provision granting it is construed against the taxpayer in respect to all ambiguities, and immunity is not founded upon doubtful phrases or ambiguous language. Hoge v. Railroad Co., 99 U.S. 348, 25 L.Ed. 303; Bank of Com merce v. Tennessee, 104 U.S. 493; 26 L.Ed. 810; Bank of Commerce v. Tennessee, 161 U.S. 134, 146, 16 S.Ct. 456, 40 L.Ed. 645; Cornell v. Coyne, 192 U.S. 418, 24 S.Ct. 383, 48 L.Ed. 504; Millsaps College v. Jackson, 275 U.S. 129, 48 S.Ct. 94, 72 L.Ed. 196; Riverdale Co-op. Creamery Ass’n v. Commissioner (C.C.A.) 48 F.(2d) 711; Sun-Herald Corporation v. Duggan (C.C.A.) 73 F.(2d) 298; Retailers Credit Ass’n v. Commissioner (C.C.A.) 90 F.(2d) 47. An asserted exemption will be denied unless it is granted by statute in plain terms. United States Trust Co. of New York v. Anderson (C.C.A.) 65 F.(2d) 575, 89 A.L.R. 994, certiorari denied 290" }, { "docid": "7752736", "title": "", "text": "presented for the position taken by either side to the controversy as to the construction of subdivisions (а) and (c) of section 201. That leads us to suggest that some elementary and fundamental rules of statutory interpretation ought to be applied, and if so, are controlling in a decision of this case. It is both the English and the American rule that doubts in taxation statutes are resolved in favor of the taxpayer, and that laws imposing taxes are to be strictly construed and not extended beyond the clear, import of the language used. It is the duty of taxing powers to make clear what is to be taxed and how. In Gould v. Gould, 245 U. S. 151, 153, 38 S. Ct. 53, 62 L. Ed. 211, the court said: “In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government, and in favor of the citizen.” Haiku Sugar Co. et al. v. Johnstone (C. C. A.) 249 F. 103; Edwards v. Wabash Ry. Co. (C. C. A.) 264 F. 610; Hartranft v. Wiegmann, 121 U. S. 609, 7 S. Ct. 1240, 30 L. Ed. 1012; Eidman v. Martinez, 184 U. S. 578, 22 S. Ct. 515, 46 L. Ed. 697; United States v. Merriam, 263 U. S. 179, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547 ; 2 Sutherland on Statutory Construction, vol. 2, p. 999. There may be double taxation, but the purpose of the Congress so to tax must be. clear. As said in Tennessee v, Whitworth, 117 U. S. 129, 137, 6 S. Ct. 645, 647, 29 L. Ed. 830: “Double taxation is, however, never to he presumed. Justice requires that the burdens of government shall as far as is practicable be laid equally on all, and, if property is taxed once in one way, it would ordinarily" }, { "docid": "16182817", "title": "", "text": "blocks of the net estate, each of. which, exclusive of the tax, constitutes a separate unit of measure. In the exaet words of counsel for plaintiffs: “The question presented involves the interpretation of that act, to ascertain whether the amount of the tax itself, imposed by the act, should be included in the ‘measure of that tax.’ ” We agree with plaintiffs’ counsel that this problem of statutory construction must be determined under the familiar rule that, in taxing statutes, doubt about the construction must be resolved against the government and in favor of the taxpayer. Gould v. Gould, 245 U. S. 151, 153, 38 S. Ct. 53, 62 L. Ed. 211; United States v. Merriam, 263 U. S. 179, 187, 188, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547. But we are not able in adopt the view that there is any reasonable doubt about the construction of this statute. Weight must be given to the contemporaneous construction of the department charged with the enforcement of the statute. Malley v. Walter Baker & Co. (C. C. A.) 281 F. 41, 46, and eases cited; Baltzell v. Mitchell (C. C. A.) 3 F.(2d) 428, 430, and cases eited. We think that the Treasury Department put the obvious and the only natural interpretation upon the language used. The act contemplates a tax, — i. e., a single tax, and upon a net estate, not upon various estates. The fact that the tax is “equal to the following percentages of the value of the net estate” does not transmute one tax into many taxes, and one net estate into several net estates. The words “equal to the following percentages of the value of the net estate” mean exactly the same as the words “equal to the sum of the following percentages of the value of the net estate,” in section 401 of the act of 1918, 40 Stat. 1096 (Comp. St. § 6336%b); not, as plaintiffs urge, a different basis for the tax. There is one tax on one net estate, under both acts. The gist of" }, { "docid": "21741220", "title": "", "text": "statutes, if made with the approval of the Secretary of the Treasury, and pursuant to statutory authority. Maryland Casualty Co. v. United States, 251 U. S. 342, 40 S. Ct. 155, 64 ,L. Ed. 297; Brewster v. Gage, 280 U. S. 327, 50 S. Ct. 115, 74 L. Ed. 457. But in the present instance, we believe that the commissioner exceeded his authority under the statute^ Also, should we assume ambiguity to exist in the phraseology, in construing a tax statute of this kind, any such ambiguity should be resolved in favor of the taxpayer. Gould v. Gould, 245 U. S. 151, 38 S. Ct. 53, 62 L. Ed. 211; U. S. v. Merriam, 263 U. S. 179, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547; Reineeke v. Trust Co., 278 U. S. 339, 49 S. Ct. 123, 73 L. Ed. 410, 66 A. L. R. 397. Lastly, if further support were needed for the conclusion here adopted, it is to be found in the form in which section 204 (b) of the Act of 1921 was redrafted in the Act of 1924 (section 206 (b), and carried into each subsequent act. That redraft is as follows: “If, for any taxable year, it appears upon the production of evidence satisfactory to the commissioner that any taxpayer has sustained a net loss, the amount thereof shall be allowed as a deduction in computing the net income of the taxpayer for the succeeding taxable year (hereinafter in this section called ‘second year1) and if such net loss is in excess of such net income (computed without such deduction), the amount of such excess shall be allowed as a deduction in computing the net income for the next succeeding taxable year (hereinafter in this section called 'third year’) ; the deduction in all eases to he made under regulations prescribed by the commissioner with the approval of the Secretary.” (43 Stat. 260 and 44 Stat. 17 [26 USCA § 937 (b)]; section 117 (b), 45 Stat. 825 [26 USCA § 2117 (b)]). As a result of this redrafting," }, { "docid": "4290572", "title": "", "text": "mother-in-law made the investment because of same. It is well settled that a consideration may consist in a detriment to the promisee as well as in a benefit to the promisor. Williston on Contracts, §§ 102 and 113. In Herschel v. Jones, 1 B. T. A. 1226, a deduction was allowed where payment was made in reimbursement of a loss sustained by another, where there was no legal but only a moral obligation of reimbursement. In that case it appeared that James J. Hill had invested money in a firm of which taxpayer was a member. A loss was sustained, and taxpayer in the year 1911, although under no legal obligation to do so, gave Hill his note in reimbursement of the loss, considering that he was under a moral obligation to . do so. He paid the note in the year 1920 and was allowed to deduct the payment as a loss sustained in that year. In the case at bar there can be no question that the taxpayer was under a moral obligation to reimburse his mother-in-law; but, as above stated, I think that he was under a legal obligation as well. It is said that the taxpayer is not entitled to the deduction because not incurred in a transaction entered into for profit and hence not within the language of the section under which it is claimed. I think, however, that this gives too narrow an interpretation to the section. It is well settled that a taxing statute is to be strictly construed against the government and in favor of the taxpayer. U. S. v. Merriam, 263 U. S. 179, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547; Shwab v. Doyle, 258 U. S. 529, 42 S. Ct. 391, 66 L. Ed. 747, 26 A. L. R. 1454; Gould v. Gould, 245 U. S. 151, 38 S. Ct. 53, 62 L. Ed. 211. And a liberal construction is to be given words of exception confining the operation of the tax. Eidman v. Martinez, 184 U. S. 578, 583, 22 S. Ct. 515," } ]

[ { "docid": "22639841", "title": "", "text": "courts were not ousted of their jurisdiction, we upheld the right of employees to sue the carrier although the employment relationship still existed. The case before us is quite different from Switchmen’s Union v. Mediation Board, 320 U. S. 297, and General Committee v. M.-K.-T. R. Co., 320 U. S. 323. Those concerned controversies of a kind unfamiliar to courts, and they involved the Mediation Board, which could impose sanctions only when the parties agreed to accept its awards. We held that the issues in those cases were not justiciable in the federal courts, since the “concept of mediation is the antithesis of justiciability.” Here, the controversy relates to the interpretation of contracts, a function courts have always performed, and “it is not to be lightly assumed that the silence of the statute bars from the courts an otherwise justiciable issue.” Nor did Order of Railway Conductors v. Pitney, 326 U. S. 561, determine the present jurisdictional issue. In a federal bankruptcy court handling a railroad reorganization, an interpretation of a collective-bargaining agreement was sought. We declared that the federal equity court should “exercise equitable discretion to give [the National Railroad Adjustment Board] the first opportunity to pass on the issue,” Thus we determined only that under the circumstances of that case the District Court, as a matter of discretion, should have remanded to the Board a controversy over the meaning of the collective-bargaining agreement, and at the same time should have retained jurisdiction to apply the Board's interpretation to the controversy. There was no intimation that the obligation to send the controversy to the Board was any more universal than the obligation of an equity court to sometimes remit parties to the state courts for a preliminary decision on state law. There was no ruling that Congress had deprived the District Court of jurisdiction. Today the Court is compelled to extend the Pitney precedent from “discretion” to “jurisdiction” because federal courts lack power to order state courts to exercise in a particular manner their equitable discretion. But the Court's inability to secure a flexible rule does not warrant the" } ]

[ { "docid": "12778720", "title": "", "text": "L.Ed. 187 (1944); Dillard v. Chesapeake & O. Ry. Co., 199 F.2d 948 (4 Cir. 1952); Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473 (4 Cir. 1951) are cited and relied upon. Steele, supra, the principal case relied upon by appellant, involved racial discrimination. Steele, a Negro, was a locomotive fireman but not a member of the Brotherhoood of Locomotive Firemen and Enginemen, the exclusive bargaining representative of the entire craft of firemen. The Supreme Court held that the language of the Railway Labor Act imposed a duty on the bargaining representative of the craft to exercise, without hostile discrimination, the power conferred upon it by the Act on behalf of all firemen irrespective of whether they were union members or not. Failure to exercise this duty, was held to give rise to a cause of action under the Act. In our ease, the Brotherhood has never represented the train porters. This craft has selected its own bargaining repre sentative and such representative has been certified by the Mediation Board, in accordance with the provisions of the Act. We deem it unnecessary to discuss the other cases relied upon by appellant. They are clearly distinguishable and are not dispositive of the jurisdictional question. The courts have, without exception, held that under the Railway Labor Act only the Mediation Board has the power to make craft or class determinations. Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952); Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943); Brotherhood of Railway & S. S. Clerks, etc. v. United Air Lines, 325 F.2d 576 (6 Cir. 1963); UNA Chapter, Flight Eng. I. Ass’n, etc. v. National Mediation Bd., 111 U.S.App.D.C. 121, 294 F.2d 905 (1961), cert. den. 368 U.S. 956, 82 S.Ct. 394, 7 L.Ed. 2d 388; Order of Railway Cond. & Brake, v. Switchmen’s Union, 269 F.2d 726 (5 Cir. 1959), cert. den. 361 U.S. 899, 80 S.Ct. 206, 4 L.Ed.2d 155; Hester v. Brotherhood of Railroad Trainmen, 206 F.2d 279 (8 Cir." }, { "docid": "743893", "title": "", "text": "that the exclusive bargaining agents authorized by the Act must not use their powers to discriminate against minority groups whom they are supposed to represent. And we have held that employers too may be enjoined from carrying out provisions of a discriminatory bargaining agreement. But the duty the Act imposes is one of fair representation and it is imposed upon the union. The employer is merely prohibited from aiding the union in breaching its duty. Nothing in the Railway Labor Act or in our cases suggests that the Act places upon an air carrier a duty to engage only in fair nondiscriminatory hiring practices. The Act has never been used for that purpose, and we cannot hold it bars Colorado’s Anti-Discrimination Act.” No exclusivity can be placed in the Railway Labor Act over racial discrimination complaints in view of Mr. Justice Black’s statement in Brotherhood of Railroad Trainmen v. Howard, at 774 of 343 U.S., at 1025 of 72 S.Ct.: “* * * [C]olored workers must look to a judicial remedy to prevent the sacrifice or obliteration of their rights under the Act. For no adequate administrative remedy can be afforded by the National Railroad Adjustment or Mediation Board. * * * For the contention here with which we agree is that the racial discrimination practiced is unlawful, whether colored employees are classified as ‘train porters’, ‘brakemen’ or something else.” We think the earlier cases clearly demonstrate and hold that the Railway Labor Act had not preempted jurisdiction over all racially based grievances arising out of the operation of the railroads nor is it set up to determine all types of racial complaints. Railroad Trainmen v. Howard, supra. Arguably some types of racial complaints might be cognizable by the National Railroad Adjustment or Mediation Board or the courts. In a related field dealing with the National Labor Relations Act the Fifth Circuit in Local Union No. 12, United Rubber etc. Workers v. N. L. R. B., 368 F.2d 12, 24 (1966), cert. denied 389 U.S. 837, 88 S.Ct. 53, 19 L.Ed.2d 99 (1967) stated by way of dictum that an" }, { "docid": "16812722", "title": "", "text": "to risk discharge, “such a remedy is tantamount to no remedy at all.” Bagnall, 626 F.2d at 342. We recognize that parties may, in a collective bargaining agreement, waive their rights to a judicial remedy. However, we do not find such a waiver here. The arbitration procedures in the contract apply only to employees who are threatened with discharge. Because plaintiffs have continued to pay service charges, they are in no position to invoke the arbitration remedy. We recognize that in many areas Congress has left the resolution of railway labor disputes to the machinery of arbitration, mediation, and bargaining. Unless Congress intends the right it has created to be enforceable in the courts, they have no jurisdiction to resolve disputes. See, e.g., Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943) (courts may not review Mediation Board’s choice of bargaining representative); General Committee of Adjustment v. Missouri-Kansas-Texas Railroad Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76 (1943) (same); Fechtelkotter v. Airline Pilots Association, International, 693 F.2d 899 (9th Cir.1982) (courts lack jurisdiction over action by employees against union for alleged violation of agreement with employer). Courts must “defer to the dispute settlement procedures of the Act.” Fechtelkotter, 693 F.2d at 901. However, disputes between a union and employees cannot be resolved by adjustment boards, which were established by the RLA to resolve grievances between employers and employees. See 45 U.S.C. § 153, First(i) (1976); Steele, 323 U.S. at 205, 65 S.Ct. at 233. Where, as in this case, the statute creates a right but does not provide an adequate enforcement mech anism, we may conclude that the right is enforceable in federal court. “If the absence of jurisdiction of the federal courts meant a sacrifice or obliteration of a right which Congress had created, the inference would be strong that Congress intended the statutory provisions governing the general jurisdiction of those courts to control.” Switchmen’s Union, 320 U.S. at 300, 64 S.Ct. at 97. See Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 57" }, { "docid": "743880", "title": "", "text": "preserving their functional operations and seniority rights. Then under the doctrine of Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944) the bargaining agent for the brakemen, as the surviving craft, could not discriminate against minority groups in carrying out representational duties under the Railway Labor Act. However, the Supreme Court, though affirming the original Howard decision on certiorari by holding that the racially oriented and predatory bargaining agreement forced by the Brakemen’s Union on the Railroad should be enjoined, cautioned, “that disputed questions of reclassification of the craft of ‘train porters’ are committed by the Railway Labor Act to the National Mediation Board. Switchmen’s Union v. National Mediation Board, [320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61] supra.” at 775 of 343 U.S. at 1026 of 72 S.Ct. Therefore, insofar as plaintiffs might have sought relief by way of merger or reclassification of their craft, they were foreclosed from any judicial relief by the holding in Railroad Trainmen v. Howard, supra; we recognized this in Howard v. St. Louis-San Francisco Railway Co., 361 F.2d 905 (8 Cir.1966), holding that the District Court had no jurisdiction to reclassify or place the class or craft of train porter into the class or craft of brakemen, stating that jurisdiction rests in the National Mediation Board. It appears clear, however, that even though train porters are foreclosed from judicial relief by way of merger or reclassification of craft, the plaintiffs have certain protections under the Railway Labor Act and under Title VII of the Civil Rights Act of 1964. They have job position rights under the Railway Labor Act that are protected against predatory raids and racial discrimination. Railroad Trainmen v. Howard, supra. And now there is available to the plaintiffs a broader charter of freedom from racial discrimination in employment by reason of the congressional enactment of Title VII of the Civil Rights Act of 1964. We examine the complaint to ascertain whether on its face a cause of action is stated under Title VII. Briefly stated, the complaint alleges: “train porter” is" }, { "docid": "3250887", "title": "", "text": "trains and to establish the position of head-end brakeman in its stead.” (Emphasis supplied.) The Supreme Court did not reach this issue, but irrespective of classification, held simply that the “Federal Act thus prohibits bargaining agents it authorizes from using their position and power to destroy colored workers’ jobs in order to bestow them on white workers.” In the words of Minton, J., dissenting, “The majority reaches out to invalidate the contract, not because the train porters are brakemen entitled to fair representation by the Brotherhood, but because they are Negroes who were discriminated against by the carrier at the behest of the Brotherhood.” To emphasize the limited scope of its decision, the Supreme Court additionally ruled: “In fashioning its decree the District Court is left free to consider what provisions are necessary to afford these employees full protection from future discriminatory practices of the Brotherhood. However, in drawing its decree, the District Court must bear in mind that disputed questions of reclassification of the craft of ‘train porters’ are committed by the Railway Labor Act to the National Mediation Board. Switchmen’s Union [of North America] v. National Mediation Board, supra (320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61).” Even the minority on the Court was in accord on the question of jurisdiction, although disagreeing with the majority’s view that the dispute did not “hinge on the proper craft classification of the porters so as to call for settlement by the National Mediation Board under our holding in Switchmen’s Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61.” The dissenting opinion stated: “I think there was a dispute here between employees of the carrier as to whether the Brotherhood was the representative of the train porters, and that this is a matter to be resolved by the National Mediation Board, not the courts.” After the District Court, on remand of the first Howard case, entered its final decree in the earlier Howard case, plaintiff appealed to the Court of Appeals the District Court’s refusal to accord to the 1946 agreement the legal effect of" }, { "docid": "2663156", "title": "", "text": "the more than two decades since the opinion was written, cf., e. g., Order of Railway Conductors v. Swan, 1947, 329 U.S. 520, 67 S.Ct. 405, 91 L.Ed. 471; Brotherhood of R. T. v. Howard, 1952, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283. During this period courts have limited Switchmen’s Union by considering the factual context of the opinion (craft jurisdiction dispute), the effect of the subsequent adoption of the Administrative Procedure Act in 1946, and the possibility of review by a court of equity when the National Mediation Board asks the court for affirmative help in enforcing its certificate. (A) It is arguable that Switchmen’s Union can be distinguished from the case at bar. There the Supreme Court was faced with a jurisdiction dispute between two rival unions seeking to represent the same railroad yardmen, and the issue decided was whether the Board’s use of its discretion to resolve the dispute was reviewable. “The question was not as to the power of the Board to resolve the dispute but whether it had done so in an erroneous manner.” Air Line Dispatchers Ass’n v. National Mediation Board, 1951, 89 U.S.App.D.C. 24, 189 F.2d 685, 688, cert. denied, 342 U.S. 849, 72 S.Ct. 77, 96 L.Ed. 641. Furthermore, the Supreme Court emphasized that “Generalizations as to when judicial review of administrative action may or may not be obtained are of course hazardous. Where Congress has not expressly authorized judicial review [as in the case sub judice'], the type of problem involved” as well as the “history of the statute in question” becomes highly relevant. 320 U.S. at 301, 64 S.Ct. at 97, 88 L.Ed. at 64. Thus it might be said that while Switchmen’s Union holds that there is no judicial review where the Board has exercised its informed discretion in resolving inter-union representation disputes, it does not preclude judicial review of questions of law which bear directly upon the jurisdiction of the Mediation Board. Air Line Dispatchers Ass’n v. National Mediation Board, supra, 189 F.2d at 688; cf. Brotherhood of Railway and S. S. Clerks v. Ass’n For" }, { "docid": "15685180", "title": "", "text": "a matter of law, in view of the train porters’ consent thereto and of the insistence of the Brotherhood and the Railway that a contract legally could be made to abolish the position and craft as such. Thus, we reversed a judgment of the District Court, Howard v. Thompson, 72 F.Supp. 695, which had denied the train porters injunctive relief against the exacted agreement and the action taken by the Railway thereunder — that court having taken the view that the right of the train porters to do the work in which they had been engaged was a question for the National Railroad Adjustment Board, and that their claim to be entitled to constitute members of the brakemen’s craft was a question for the National Mediation Board. We directed the District Court to enter an order “enjoining the Railway and the Brotherhood from using the agreement for any other purpose and from giving it any other effect” than that which has just been set out above herein. See 191 F.2d at page 449. The Brotherhood petitioned the Supreme Court for certiorari, and the writ was granted. Brotherhood of Railroad Trainmen v. Howard, 342 U.S. 940, 72 S. Ct. 551, 96 L.Ed. 699. On hearing and and submission on the merits, the Supreme Court wrote an opinion, Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283, holding that the use made by the Brotherhood of its position and power, as a bargaining representative under the Railway Labor Act, 45 U.S.C.A. § 151 et seq., to effect a racial discrimination, was a breach of its statutory duty and so unlawful. The Court said: “While different in some respects, the basic pattern of racial discrimination in this case is much the same as that we had to consider in Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173. * * * As previously noted, these train porters are threatened with loss of their jobs because they are not white and for no other reason. * * * The Federal Act" }, { "docid": "15685182", "title": "", "text": "* * * prohibits bargaining agents it authorizes from using their position and power to destroy colored workers’ jobs in order to bestow them on white workers. * * * The claims here cannot be resolved by interpretation of a bargaining agreement so as to give jurisdiction to the Adjustment Board * * *. This dispute involves the validity of the contract, not its meaning. Nor does the dispute hinge on the proper craft classification of the porters so as to call for settlement by the National Mediation Board * * *. For the contention here with which we agree is that the racial discrimination practiced is unlawful, whether colored employees are classified as ‘train porters,’ ‘brakemen,’ or something else.” 343 U.S. at pages 772, 773, 774, 72 S.Ct. at page 1024. To this, the Court added the following conclusion and direction: “We agree with the Court of Appeals that the District Court had jurisdiction to protect these workers from the racial discrimination practiced against them. On remand, the District Court should permanently enjoin the Railroad and the Brotherhood from use of the contract or any other similar discriminatory bargaining device to oust the train porters from their jobs. In fashioning its decree the District Court is left free to consider what provisions are necessary to afford these employees full protection from future discriminatory practices of the Brotherhood. However, in drawing its decree, the District Court must bear in mind that disputed questions of reclassification of the craft of ‘train porters’ are committed by the Railway Labor Act to the National Mediation Board.” 343 U.S. at pages 774 and 775, 72 S.Ct. at page 1026. The formal order, which the opinion directed to be entered of record, and which the mandate contained in practically the identical language thereof, was that “The judgment of the Court of Appeals reversing that of the District Court is affirmed, and the cause is remanded to the District Court for further proceedings in accordance with this opinion.” 343 U.S. at page 775, 72 S.Ct. at page 1026. After the case had been thus remanded to" }, { "docid": "22079879", "title": "", "text": "statutory duty by this Brotherhood. As previously noted, these train porters are threatened with loss of their jobs because they are not white and for no other reason. The job they did hold under its old name would be abolished by the agreement; their color alone would disqualify them for the old job under its new name. The end result of these transactions is not in doubt; for precisely the same reasons as in the Steele case “discriminations based on race alone are obviously irrelevant and invidious. Congress plainly did not undertake to authorize the bargaining representative to make such discriminations.” Steele v. L. & N. R. Co., supra, at 203, and cases there cited. Cf. Shelley v. Kraemer, 334 U. S. 1. The Federal Act thus prohibits bargaining agents it authorizes from using their position and power to destroy colored workers’ jobs in order to bestow them on white workers. And courts can protect those threatened by such an unlawful use of power granted by a federal act. Here, as in the Steele case, colored workers must look to a judicial remedy to prevent the sacrifice or obliteration of their rights under the Act. For no adequate administrative remedy can be afforded by the National Railroad Adjustment or Mediation Board. The claims here cannot be resolved by interpretation of a bargaining agreement so as to give jurisdiction to the Adjustment Board under our holding in Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239. This dispute involves the validity of the contract, not its meaning. Nor does the dispute hinge on the proper craft classification of the porters so as to call for settlement by the National Mediation Board under our holding in Switchmen’s Union v. National Mediation Board, 320 U. S. 297. For the contention here with which we agree is that the racial discrimination practiced is unlawful, whether colored employees are classified as “train porters,” “brakemen,” or something else. Our conclusion is that the District Court has jurisdiction and power to issue necessary injunctive orders notwithstanding the provisions of the Norris-LaGuardia Act. We need" }, { "docid": "14411999", "title": "", "text": "In later cases, it was determined that the courts were not empowered to interpret collective bargaining agreements before they had been interpreted by the Adjustment Board. Order of Railway Conductors v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318, Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L. Ed. 795; Order of Railway Conductors v. Southern R. Co., 339 U.S. 255, 70 S.Ct. 585, 94 L.Ed. 811. So also it was held that jurisdictional disputes between labor organizations were not to be determined or reviewed by the courts. Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61; General Committee of Adjustment of Brotherhood of Locomotive Engineers, etc., v. Missouri-Kansas-Texas R. Co., 320 U.S. 323, 64 S. Ct. 146, 88 L.Ed. 76; General Committee of Adjustment of Brotherhood of Locomotive Engineers, etc., v. Southern Pacific Co., 320 U.S. 338, 64 S.Ct. 142, 88 L.Ed. 85. But such determinations do not preclude the courts from passing upon the validity of a provision of a bargaining agreement as distinguished from the interpretation of it. Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283. The opinion in the Slocum case, supra, points out that it is not inconsistent with the holding in the Moore case, supra, saying: “Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad’s action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide, and does not involve questions of future relations between the railroad and its other employees. If a court in handling such a case must consider some provision of a collective-bargaining agreement, its interpretation would of course have" }, { "docid": "17898704", "title": "", "text": "each plaintiff be awarded $5,000.00 compensatory damages against the Brotherhood and the Railroad Company and * * * $50,000.00 against the Brotherhood as punitive damages,” as well as attorneys’ fees and costs. The district court granted appellees’ motions to dismiss the complaint for lack of jurisdiction, upon the ground that the complaint seeks adjudication of a dispute between employees and their carrier-employer under Section 3 of the Railway Labor Act, and is a controversy requiring interpretation and application of a collective bargaining agreement cognizable in the first instance by the National Railroad Ad justment Board under General Committee v. Missouri-Kansas-Texas R. Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76, and this Circuit’s decision in Conley v. Gibson, 229 F.2d 436, affirming 138 F.Supp. 60, certiorari granted, 352 U.S. 818, 819, 77 S.Ct. 37, 1 L.Ed. 44, and Hampton v. Thompson, 5 Cir., 171 F.2d 535. Appellants insist that the court’s dismissal was incorrect because the facts alleged required the court to assume jurisdiction to redress the discrimination under such decisions as Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; Tun-stall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187; Graham v. Brotherhood of Firemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22; Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283; the decisions of the Fourth Circuit in Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473, and Dillard v. Chesapeake & O. R. Co., 199 F.2d 948; and this Court’s decisions in Brotherhood of Locomotive Firemen v. Mitchell, 190 F.2d 308; and Central of Georgia R. Co. v. Jones, 229 F.2d 648, certiorari denied 352 U.S. 848, 77 S.Ct. 32. Appellants rely particularly upon the Steele Case, supra, as establishing that no interpretation of the application of an existing bargaining agreement justifies relegating such discriminatees to any supposed administrative remedy before the National Railroad Adjustment Board where, as here, the complaint alleges a judically cognizable breach of the bargaining representative’s statutory duty not to" }, { "docid": "18317887", "title": "", "text": "otherwise, is a matter that has been left entirely to state contractual concept and remedy. Damages for discharges violative of a collective bargaining agreement under the Act can be recovered only ‘if the state courts recognize such a claim.’ Transcontinental & Western Air, Inc., v. Koppal, 345 U.S. 653, 661, 73 S.Ct. 906, 910, 97 L.Ed. 1325. In other words, a railroad employee cannot claim damages for any discharge, except as the discharge constitutes an actionable one under the law of the applicable state.” It is true that under the Railway Labor Act the status of an employee may be the subject of a dispute. It may then run the gamut of the grievance procedures provided by a collective bargaining agreement as recognized in the Act, 45 U.S.C.A. § 153(i) which makes provision for reference of unresolved disputes to the Adjustment Board. But where Congress specifies an administrative remedy it is normally taken to exclude any other remedy which is not specifically set forth. Switchmen’s Union of North America v. National Mediation Board, 1943, 320 U.S. 297, 301, 64 S.Ct. 95, 88 L.Ed. 61; cf. Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 1944, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187, and Steele v. Louisville & Nashville Railroad Co., 1941, 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173, where no administrative remedy was available and the Supreme Court implied a federal right to enjoin compliance by the unions with their duty to represent their members without discrimination and to sue for damages. As it is the remedy of suit in the state courts under principles of state law has always been available to employees complaining of wrongful discharge. And of course the federal courts are open for such issues in diversity cases. Moore v. Illinois Central Railroad Co., 1941, 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089. It seems to us that the silence of Congress in the light of such a well known remedy already available in the state courts is further confirmation of our view that no federal right was meant to be created." }, { "docid": "22079880", "title": "", "text": "colored workers must look to a judicial remedy to prevent the sacrifice or obliteration of their rights under the Act. For no adequate administrative remedy can be afforded by the National Railroad Adjustment or Mediation Board. The claims here cannot be resolved by interpretation of a bargaining agreement so as to give jurisdiction to the Adjustment Board under our holding in Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239. This dispute involves the validity of the contract, not its meaning. Nor does the dispute hinge on the proper craft classification of the porters so as to call for settlement by the National Mediation Board under our holding in Switchmen’s Union v. National Mediation Board, 320 U. S. 297. For the contention here with which we agree is that the racial discrimination practiced is unlawful, whether colored employees are classified as “train porters,” “brakemen,” or something else. Our conclusion is that the District Court has jurisdiction and power to issue necessary injunctive orders notwithstanding the provisions of the Norris-LaGuardia Act. We need add nothing to what was said about inapplicability of that Act in the Steele case and in Graham v. Brotherhood of Firemen, 338 U. S. 232, 239-240. Bargaining agents who enjoy the advantages of the Railway Labor Act’s provisions must execute their trust without lawless invasions of the rights of other workers. We agree with the Court of Appeals that the District Court had jurisdiction to protect these workers from the racial discrimination practiced against them. On remand, the District Court should permanently enjoin the Railroad and the Brotherhood from use of the contract or any other similar discriminatory bargaining device to oust the train porters from their jobs. In fashioning its decree the District Court is left free to consider what provisions are necessary to afford these employees full protection from future discriminatory practices of the Brotherhood. However, in drawing its decree, the District Court must bear in mind that disputed questions of reclassification of the craft of “train porters” are committed by the Railway Labor Act to the National Mediation Board. Switchmen’s Union" }, { "docid": "3250888", "title": "", "text": "Act to the National Mediation Board. Switchmen’s Union [of North America] v. National Mediation Board, supra (320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61).” Even the minority on the Court was in accord on the question of jurisdiction, although disagreeing with the majority’s view that the dispute did not “hinge on the proper craft classification of the porters so as to call for settlement by the National Mediation Board under our holding in Switchmen’s Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61.” The dissenting opinion stated: “I think there was a dispute here between employees of the carrier as to whether the Brotherhood was the representative of the train porters, and that this is a matter to be resolved by the National Mediation Board, not the courts.” After the District Court, on remand of the first Howard case, entered its final decree in the earlier Howard case, plaintiff appealed to the Court of Appeals the District Court’s refusal to accord to the 1946 agreement the legal effect of “a consolidation of the positions and crafts of brakeman and train porter and of the membership of the two crafts.” In ruling against plaintiff, the Court of Appeals, 215 F.2d 690, held that the decree he sought “could hardly, in terms of the Railway Labor Act and in the language of the Supreme Court’s opinion, be regarded as being anything else, for purpose of the present situation, than an intrusion by the court into the forbidden domain of ‘disputed questions of reclassification of the craft of “train porters.” ’ ” In Hester v. Brotherhood of Railroad Trainmen, 8 Cir., 206 F.2d 279, in ruling a contention that messenger-baggagemen should be regarded as belonging or entitled to belong to the craft of brakemen represented by the Brotherhood, the Court said, “And until the plaintiffs have sought and obtained from the Mediation Board such an establishment of their claimed and disputed craft status, they necessarily are without any foundation for legally sustaining the critical allegation on which their suit is attempted to be rested.” In UNA Chapter," }, { "docid": "23675095", "title": "", "text": "arise in the action * * Rule 20(a), Fed.R.Civ.P. Under this rule joinder of parties-defendant is governed by the concepts of “same transaction” and “common question of law or fact.” The allegations here satisfy these requirements. Judicial Interpretation of the Collective Agreement Is Not Forbidden Though resolution of the issue whether or not Rumbaugh is a supervisor may require an interpretation of the collective bargaining agreement, the federal courts are not ousted from their function merely because, under certain circumstances, interpretation is delegated to the Board. Here, as we have shown, the Board lacks jurisdiction. This being so, and the cause of action for invidious discrimination being cognizable by the federal courts, they have the power — and the duty — to interpret the agreement. Otherwise there would be no forum, judicial or administrative, competent to grant relief. Jurisdiction of the National Mediation Board We also find that the National Mediation Board is without jurisdiction over this case. The Railway Labor Act, 45 U.S.C.A. § 152 Ninth, provides: “If any dispute shall arise among a carrier’s employees as to who are the representatives of such employees * * it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties * * * the name or names of the individuals or organizations that have been designated and authorized to represent the employees * * The case of Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 323, 64 S.Ct. 95, 88 L.Ed. 61 (1943), makes it clear that the jurisdiction of the National Mediation Board is limited to disputes between rival employee representatives. The Board is limited to resolving jurisdictional disputes and settling controversies between unions as to where “the authority of one craft ends and the other begins or of the zones where they have joint authority.” General Committee of Adjustment v. Missouri-K.-T. R. R., 320 U.S. 323, 334-335, 64 S.Ct. 146, 88 L.Ed. 76 (1943). The Board’s jurisdiction does not extend to controversies, such as the one now under consideration," }, { "docid": "14411998", "title": "", "text": "their representatives, selected in accordance with the provisions of this chapter, from mutually agreeing to the establishment of system, group, or regional boards of adjustment for the purpose of adjusting and deciding disputes of the character specified in this section. In the event that either party to such a system, group, or regional board of adjustment is dissatisfied with such arrangement, it may upon ninety days’ notice to the other party elect to come under the jurisdiction of the Adjustment Board.” 45 U.S.C.A. § 153, Second. Perhaps the leading case among those dealing with the question before us, and heavily relied upon by the plaintiffs, is Moore v. Illinois Central Railroad Company, 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089. In the Moore case it was decided that a railway employee, who claimed to be wrongfully discharged in violation of a collective bargaining agreement between his employer and the union of which he was a member, might bring an action for damages without submitting his claim and grievance to the National Railroad Adjustment Board. In later cases, it was determined that the courts were not empowered to interpret collective bargaining agreements before they had been interpreted by the Adjustment Board. Order of Railway Conductors v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318, Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L. Ed. 795; Order of Railway Conductors v. Southern R. Co., 339 U.S. 255, 70 S.Ct. 585, 94 L.Ed. 811. So also it was held that jurisdictional disputes between labor organizations were not to be determined or reviewed by the courts. Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61; General Committee of Adjustment of Brotherhood of Locomotive Engineers, etc., v. Missouri-Kansas-Texas R. Co., 320 U.S. 323, 64 S. Ct. 146, 88 L.Ed. 76; General Committee of Adjustment of Brotherhood of Locomotive Engineers, etc., v. Southern Pacific Co., 320 U.S. 338, 64 S.Ct. 142, 88 L.Ed. 85. But such determinations do not preclude the courts from passing upon the validity" }, { "docid": "743879", "title": "", "text": "of the Railroad Adjustment Board. No appeal was taken from this decision. In Neal v. System Board of Adjustment (Missouri Pacific Railroad), 348 F.2d 722 (8 Cir. 1965) Negro employees of the Railroad working in the St. Louis terminal and represented by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees alleged racial discrimination in the abolition of existing positions and the establishment of new positions in the terminal operation. Summary judgment against them was sustained by us for failure to exhaust administrative procedures available in the Union before seeking equitable relief against the Union or its officers in the federal courts. Judge Johnsen in the original Howard case, 191 F.2d 442 (8 Cir.1951) attempted to resolve the dispute between the train porters and the brakemen by viewing the collective-bargaining agreement between the brakemen and the Railroad, allowing the brakemen to take over the train porters’ head end braking duties, as calling for a merger of the crafts of train porter and brakeman. This would protect the displaced train porters by preserving their functional operations and seniority rights. Then under the doctrine of Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944) the bargaining agent for the brakemen, as the surviving craft, could not discriminate against minority groups in carrying out representational duties under the Railway Labor Act. However, the Supreme Court, though affirming the original Howard decision on certiorari by holding that the racially oriented and predatory bargaining agreement forced by the Brakemen’s Union on the Railroad should be enjoined, cautioned, “that disputed questions of reclassification of the craft of ‘train porters’ are committed by the Railway Labor Act to the National Mediation Board. Switchmen’s Union v. National Mediation Board, [320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61] supra.” at 775 of 343 U.S. at 1026 of 72 S.Ct. Therefore, insofar as plaintiffs might have sought relief by way of merger or reclassification of their craft, they were foreclosed from any judicial relief by the holding in Railroad Trainmen v. Howard, supra; we recognized this in" }, { "docid": "15685181", "title": "", "text": "petitioned the Supreme Court for certiorari, and the writ was granted. Brotherhood of Railroad Trainmen v. Howard, 342 U.S. 940, 72 S. Ct. 551, 96 L.Ed. 699. On hearing and and submission on the merits, the Supreme Court wrote an opinion, Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283, holding that the use made by the Brotherhood of its position and power, as a bargaining representative under the Railway Labor Act, 45 U.S.C.A. § 151 et seq., to effect a racial discrimination, was a breach of its statutory duty and so unlawful. The Court said: “While different in some respects, the basic pattern of racial discrimination in this case is much the same as that we had to consider in Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173. * * * As previously noted, these train porters are threatened with loss of their jobs because they are not white and for no other reason. * * * The Federal Act * * * prohibits bargaining agents it authorizes from using their position and power to destroy colored workers’ jobs in order to bestow them on white workers. * * * The claims here cannot be resolved by interpretation of a bargaining agreement so as to give jurisdiction to the Adjustment Board * * *. This dispute involves the validity of the contract, not its meaning. Nor does the dispute hinge on the proper craft classification of the porters so as to call for settlement by the National Mediation Board * * *. For the contention here with which we agree is that the racial discrimination practiced is unlawful, whether colored employees are classified as ‘train porters,’ ‘brakemen,’ or something else.” 343 U.S. at pages 772, 773, 774, 72 S.Ct. at page 1024. To this, the Court added the following conclusion and direction: “We agree with the Court of Appeals that the District Court had jurisdiction to protect these workers from the racial discrimination practiced against them. On remand, the District Court should permanently enjoin the" }, { "docid": "16812721", "title": "", "text": "U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), held that a union has a duty under the RLA to represent all employees fairly. The Court reasoned that in conferring on unions the power to act as the exclusive representative of all employees, Congress must have intended that they have a corresponding duty to protect the interests of those employees. 323 U.S. at 202, 65 S.Ct. at 232. In finding that section 2, Eleventh gives unions the duty to exercise their power of discharge under union security agreements only in a manner consistent with the statute, we adopt a similar approach. ALPA argues that this dispute cannot bé resolved in federal court because an adequate remedy is provided in the collective bargaining agreement. Under the agreement, an employee may not be discharged under the agency shop clause unless the issue has been determined by a neutral arbitrator. The decision of the arbitrator is final: if the employee loses, he is discharged. We agree with the Fourth Circuit that for an employee who does not want to risk discharge, “such a remedy is tantamount to no remedy at all.” Bagnall, 626 F.2d at 342. We recognize that parties may, in a collective bargaining agreement, waive their rights to a judicial remedy. However, we do not find such a waiver here. The arbitration procedures in the contract apply only to employees who are threatened with discharge. Because plaintiffs have continued to pay service charges, they are in no position to invoke the arbitration remedy. We recognize that in many areas Congress has left the resolution of railway labor disputes to the machinery of arbitration, mediation, and bargaining. Unless Congress intends the right it has created to be enforceable in the courts, they have no jurisdiction to resolve disputes. See, e.g., Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943) (courts may not review Mediation Board’s choice of bargaining representative); General Committee of Adjustment v. Missouri-Kansas-Texas Railroad Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76 (1943) (same); Fechtelkotter v. Airline Pilots" }, { "docid": "12778721", "title": "", "text": "the provisions of the Act. We deem it unnecessary to discuss the other cases relied upon by appellant. They are clearly distinguishable and are not dispositive of the jurisdictional question. The courts have, without exception, held that under the Railway Labor Act only the Mediation Board has the power to make craft or class determinations. Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952); Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943); Brotherhood of Railway & S. S. Clerks, etc. v. United Air Lines, 325 F.2d 576 (6 Cir. 1963); UNA Chapter, Flight Eng. I. Ass’n, etc. v. National Mediation Bd., 111 U.S.App.D.C. 121, 294 F.2d 905 (1961), cert. den. 368 U.S. 956, 82 S.Ct. 394, 7 L.Ed. 2d 388; Order of Railway Cond. & Brake, v. Switchmen’s Union, 269 F.2d 726 (5 Cir. 1959), cert. den. 361 U.S. 899, 80 S.Ct. 206, 4 L.Ed.2d 155; Hester v. Brotherhood of Railroad Trainmen, 206 F.2d 279 (8 Cir. 1953). In Howard, supra, the Brotherhood sought to invade the positional field of train porters, and take over their jobs. Racial discrimination was an important factor in the case. In refusing to sanction the agreement between Frisco and Brotherhood, we stated, in part, 191 F.2d at p. 445: “The agreement reached out to take over, by forced action, * * * the entire positional field of another craft, with the * * * inevitable, and so legally intended, result that that 40-year established and recognized separate craft would be pushed off the Railway and cease to have existence”. On certiorari the Supreme Court stated “the basic pattern of racial discrimination in this case is much the same as that we had to consider in Steele v. Louisville & N. R. Co., 323 U.S. 192 [65 S.Ct. 226, 89 L.Ed. 173] * * * As previously noted, these train porters are threatened with loss of their jobs because they are not white and for no other reason. The job they did hold under its old name" } ]

[ { "docid": "21034498", "title": "", "text": "and refunded Ms. Kirkland’s payment for the second year. Ms. Kirkland filed suit in the Superior Court of Richmond County against Midland and Balboa on October 13, 1997, alleging breach of fiduciary duty, fraud, theft, and money had and received. Shortly thereafter, Balboa removed the case to federal court. On December 30, 1997, the district court remanded the suit back to state court. On March 5, 1998, Ms. Kirkland dismissed Balboa without prejudice. Thereafter, Midland removed the action to the district court on April 23, 1998. Ms. Kirkland initially moved to remand but later withdrew that motion. In October 1998, Ms. Kirkland moved for class certification, and the district court granted the motion on January 4, 2000, for the breach of fiduciary duty claim. At the same time, the district court denied Midland’s motion for reconsideration of its denial of Midland’s motion for summary judgment. Both the denial of the motion for summary judgment and the certification of the class were certified by the district court pursuant to 28 U.S.C. § 1292(b), and this court granted permission to appeal pursuant to 28 U.S.C. § 1292(b) and Fed.R.Civ.P. 23(f). Thus, we have appellate jurisdiction of this interlocutory appeal. II. JURISDICTION Federal courts are courts of limited jurisdiction and are required to inquire into their jurisdiction at the earliest possible point in the proceeding. See University of South Alabama v. American Tobacco Co., 168 F.3d 405, 410 (11th Cir.1999). Appellate courts must also examine the subject matter jurisdiction of the lower courts in actions that they review. See id. (citing Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934)). One of the limited grounds of jurisdiction that federal courts have is diversity jurisdiction, which is the only source of jurisdiction available in this case. Article III of the Constitution provides the outer limits of the federal courts’ jurisdiction and vests in Congress the power to determine what the 'extent of the lower courts’ jurisdiction will be. See Morrison v. Allstate Indemnity Co., 228 F.3d 1255, 1261 (11th Cir.2000). The diversity jurisdiction statute, 28 U.S.C. § 1332," } ]

[ { "docid": "22055618", "title": "", "text": "but it subsequently approved the substitution of new next friends on March 20, 1992, and the adequacy of representation issue is no longer pressed. . We raised sua sponte the question whether we had appellate jurisdiction to consider the case since the named plaintiffs' individual claims had been mooted after the denial of class certification. Both parties submitted briefs in favor of the exercise of appellate jurisdiction. We conclude, for the reasons set out in this footnote, that we have jurisdiction to consider the class certification issue, but not the summary judgment issues. Because the combination of the summary judgment order (to which the class was not a party) and the stipulation left nothing in the district court, the orders of the district court are now final and thus subject to review. 28 U.S.C. § 1291. Notwithstanding the fact that some of the named plaintiffs’ claims have become moot since the original denial of class certification, this case does present live issues. United States Parole Com. v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), made clear that the expiration of the named plaintiff's claims after the denial of class certification does not moot the action brought on behalf of the class. See also Eisenberg v. Gagnon, 766 F.2d 770, 784 (3d Cir.1985). Thus, the district court's orders were final and the issues presented are not moot. This court, however, only has jurisdiction to review the certification decision, in contrast to the summary judgment order issued on the existence of the private rights of action under the Adoption Assistance and Child Welfare Act, the Child Abuse Prevention and Treatment Act, state law, and the U.S. Constitution. In affirming the Court of. Appeals on the jurisdictional ground, the Geraghty Court emphasized, It would be inappropriate for this Court to reach the merits of this controversy in the present posture of the case.... Furthermore, although the Court of Appeals commented upon the merits for the sole purpose of avoiding waste of judicial resources, it did not reach a final conclusion on the validity of the guidelines. 445 U.S. at" }, { "docid": "7899283", "title": "", "text": "in volved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335, 96 S.Ct. 893. . We do not suggest that confusion among federal or state courts is either a necessary or a sufficient condition for qualified immunity to apply in a given factual context. We merely find that the existence of such confusion here, considered with the other circumstances of the case at bar, compels the conclusion that qualified immunity is appropriate. . This conclusion is not altered, contrary to Batthany’s claim, by the fact that the State Defendants have adopted a policy of affording such credits. For even assuming, arguendo, that this policy was violated by the conduct here, officials are not liable for violating constitutional rights that are \"not clearly defined or perhaps not even foreshadowed at the time of the alleged violation ... merely because their official conduct ... violated some statute or regulation.” Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). . We are mindful that in certain instances \"the claims of some named plaintiffs [may be preserved] for class certification purposes that might well be moot if asserted only as individual claims.” Amador v. Andrews, 655 F.3d 89, 100 (2d Cir.2011). Plaintiffs have not argued that they have standing to assert a claim for declaratory relief because of their status as would-be lead plaintiffs in a class action. Thus, we regard any such argument as waived. See Norton, 145 F.3d at 117. . Plaintiffs contend briefly that the district court erred by dismissing, in the exercise of its discretion, Batthany’s state law claims against the City Defendants, on the theory that \"the District Court would have properly exercised supplemental jurisdiction over those claims since they arose from the same set of events being adjudicated with regard to the federal claims against the State Defendants.” We need not decide whether the district court’s dismissal of Batthany's state law claims was error at the time of dismissal, because the district court has now dismissed all the federal claims in this" }, { "docid": "13401347", "title": "", "text": "F.3d at 1020. We also review CAFA construction and applicability de novo. Bush, 425 F.3d at 686. Discussion Congress passed the Class Action Fairness Act “primarily to curb perceived abuses of the class action device which, in the view of CAFA’s proponents, had often been used to litigate multi-state or even national class actions in state courts.” Tanoh v. Dow Chem. Co., 561 F.3d 945, 952 (9th Cir.), cert. denied, — U.S. -, 130 S.Ct. 187, 175 L.Ed.2d 236 (2009). To achieve its purposes, CAFA provides expanded original diversity juris diction for class actions meeting the amount in controversy and minimal diversity and numerosity requirements set forth in 28 U.S.C. § 1332(d)(2). Serrano, 478 F.3d at 1020-21. CAFA also covers more than traditional class actions by providing for removal of “mass actions.” Tanoh, 561 F.3d at 952. Even though CAFA indisputably creates original federal jurisdiction prior to class certification, the statute does not say whether the post-removal denial of class certification divests the federal courts of jurisdiction — or, as plaintiffs argue, whether class certification is a necessary condition to continued jurisdiction. Section 1332(d) does not explicitly require class certification for continued jurisdiction, nor does § 1453 expressly require remand after denial of class certification. Only the Seventh and Eleventh Circuits have squarely considered this issue, and both have held that the post-removal denial of class certification does not divest federal courts of jurisdiction. See Cunningham, Charter Corp. v. Learjet, Inc., 592 F.3d 805, 806-07 (7th Cir.2010); Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1268 n. 12 (11th Cir.2009). In Vega, the Eleventh Circuit held that the district court abused its discretion by certifying the class, vacated the certification order, and remanded for Vega’s claims to proceed as individual claims. 564 F.3d at 1279-80. In a footnote, however, the Eleventh Circuit held that the failure to show numerosity does not divest federal courts of CAFA jurisdiction. Id. at 1268 n. 12. The court reasoned that (1) § 1332(d)(5)(B)’s jurisdictional limitation applies to “proposed” classes; (2) “jurisdictional facts are assessed at the time of removal ”; and (3) “post-removal events" }, { "docid": "21196176", "title": "", "text": "most each class member would have paid for WireWatch between 1994 and 2001 is roughly $124.68. Such a small possible recovery would not encourage individuals to bring suit, thereby making a class action a superior mechanism for adjudicating this dispute. See id. (“ ‘A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.’”) (quoting Mace, 109 F.3d at 344); see also Carroll v. United Compucred Collections, Inc., 399 F.3d 620, 625 (6th Cir. 2005) (same). Thus, the district court did not err in holding that the superiority requirement of Rule 23(b)(3) is satisfied. 4. Plaintiffs-Appellees’ State Law Claims Lastly, we briefly address Centu-ryTel’s contention that the district court erred in certifying Plaintiffs-Appellees’ state-law claims (Counts IV and V). Cen-turyTel argues that the district court’s decision failed to analyze whether Plaintiffs-Appellees’ state-law claims met the Rule 23 requirements, and, alternatively, Plaintiffs-Appellees’ state-law claims are not appropriate for class certification because individual issues overwhelm any common issues. (Appellant’s Br. 44-45.) Conversely, Plaintiffs-Appellees point out that the district court’s class-certification decision “purposely did not address the state law claims.” (Appellee’s Br. 46.) A review of the district court’s decision leaves some ambiguity as to how that court intended to proceed with Plaintiffs-Appel-lees’ state-law claims. In an order dated May 29, 2003, the district judge presiding over the case stated that, “[ajfter further discussion with the parties, the [c]ourt finds that the parties should first focus on the merit of the plaintiffs’ federal claims and the propriety of class certification concerning those claims.” (JA 76.) Plaintiffs-Appellees urge us to construe this language as binding rather than merely hortatory: in their estimation, this language makes clear that their state-law claims were not pending before the district court in its certification decision and therefore are not currently pending before us on appeal. On the other hand, Plaintiffs-Appellees’ August 15, 2003 motion for class certification, which was filed after the May 29, 2003 order, requested certification that included the state-law claims. The district court’s opinion granting class certification expressly references state-law theories and specifically lists Plaintiffs-Appellees’" }, { "docid": "23672573", "title": "", "text": "All thirteen appellants were in DOCS custody when they commenced the action; only four remained incarcerated when the district court rendered its September 13, 2005 decision. Four appellants have been released and subsequently reincarcerated during the course of these proceedings, and of these, only two, remained in custody following the filing of the notice of appeal. Accordingly, we conclude that it was error for the district court to dismiss as moot the claims of the individual plaintiffs who had been released from prison after the filing of the amended complaint. See Wilkerson v. Bowen, 828 F.2d 117, 121 (3d Cir.1987) (“It would seem to us that the principle espoused in Geraghty is applicable whether the particular claim of the proposed class plaintiff is resolved while a class certification motion is pending in the district court (as in the present case) or while an appeal from denial of a class certification motion is pending in the court of appeals (as in Geraghty). In neither event is the plaintiff automatically disqualified from being a class representative....”); Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir.1997) (holding that, in light of the potential for a prisoner’s claim to be “inherently transitory,” the action could qualify for an exception to mootness, and if so found on remand, the district court could validly certify a class, “since the ‘relation back’ doctrine will relate to [plaintiffs] standing at the outset of the case”). d) Exhaustion by Appellants Having held that the relation-back theory applies, we now address whether any of the individual plaintiffs have properly exhausted internal prison remedies. Of the thirteen appellants, nine made internal complaints, investigated by the IG, that sought redress only for the alleged actions of the particular officer and did not seek a change in policies or procedures. These nine have, therefore, not exhausted their internal remedies with regard to the complaint in the present action. Another appellant, Stacie Calloway, complained about a sexual assault. However, her affidavit also states that she informed the IG that sexual abuse was a problem affecting other inmates and that no one kept track of" }, { "docid": "17276863", "title": "", "text": "which class members automatically would be entitled once liability to the class (or subclass) as a whole is established. That is, the recovery of incidental damages should typically be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions. Id. at 415 (citations omitted). The Eleventh and Seventh Circuits have followed the Fifth Circuit’s “bright-line” approach. See Murray v. Auslander, 244 F.3d 807, 812 (11th Cir.2001); Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 898-99 (7th Cir.1999). The Second Circuit, however, noted that the bright-line approach “forecloses (b)(2) class certification of all claims that include compensatory damages (or punitive damages) even if the class-wide injunctive relief is the form of relief in which the plaintiffs are primarily interested.” Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 163 (2d Cir.2001) (quotations omitted). Moreover, the Fifth Circuit’s approach ignored “the fact that Rule 23 has historically been understood to vest district courts with the authority to determine whether, in their informed discretion, based on the particulars of the case, the certification prerequisites have been satisfied.” Id. at 164 (quotations omitted). For these reasons, the Second Circuit declined to adopt the bright-line approach, holding instead that: [WJhen presented with a motion for (b)(2) class certification of a claim seeking both injunctive relief and non-incidental monetary damages, a district court must consider the evidence presented at a class certification hearing and the arguments of counsel, and then assess whether (b)(2) certification is appropriate in light of the relative importance of the remedies sought, given all of the facts and circumstances" }, { "docid": "17653251", "title": "", "text": "As Plaintiffs have emphasized, it would not be appropriate for the Court to evaluate the merits of their claim and decide whether to invoke a per se analysis in the context of this motion for class certification. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (“We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.”). Accordingly, the Court believes it would be prudent to defer its determination until it can properly assess the merits of applying the per se approach to the present case. Maintaining a class action as to a single claim is proper under certain circumstances. Rule 23(c)(4)(A) empowers district courts to certify a class action under Rule 23(b)(3) as to common issues only if the court feels that representative litigation will fairly and economically resolve those common issues. See Spencer Williams, Mass Tort Class Actions: Going, Going, Gone?, 98 F.R.D. 323, 326-27 (1983). Rule 23(c)(4)(A) provides: When appropriate an action may be maintained as a class action with respect to particular issues ... and the provisions of this rule shall then be construed and applied accordingly. Fed.R.Civ.P. 23(c)(4)(A). Furthermore, the Ninth Circuit has recognized that in some cases it may be appropriate in the interest of judicial economy to resolve a motion for summary judgment or motion to dismiss prior to ruling on class certification. See Wright v. Schock, 742 F.2d 541, 545-46 (9th Cir.1984); cf. Wade v. Kirkland, 118 F.3d 667, 670 (1997)(holding that where claim appeared to be “inherently transitory,” it was inappropriate for district court to delay ruling on motion for class certification pending resolution of motion to dismiss or motion for summary judgment). The Court believes it is best to employ the flexibility of Rule 23(c)(4)(A) and defer a ruling on certifying a class, as to the per se claim only, until resolution of a motion for summary judgment on that claim" }, { "docid": "17694908", "title": "", "text": "will require this Court to collaterally attack other court’s final orders. Admittedly, some of these issues loom very large in the future of these actions. They are roadblocks which may limit the size of any class or the scope of the issues covered. However, this Court is unwilling to conclude that its jurisdiction is limited by these issues. They are separate from jurisdiction and need to be recognized as such. The Court will address each of these issues only to the extent appropriate at this time. A. As stated above, the venue statute does not preclude nationwide jurisdiction; it, in fact, supports it or there is no need for the venue provisions. However, the defendants assert that if that is true, the appropriate venue for each debtor is where the debtor’s case is filed. This argument is premature. Class certification issues include “the interest of members of the class in individually controlling the prosecution ... of separate actions ... [and] the desirability or undesirability of concentrating the litigation of the claims in the particular forum.” Fed. R. Bank. P. 7023(b)(3). This issue should be taken up in conjunction with class certification. B. Defendants assert that the class action suits are not core proceedings under 28 U.S.C. § 157(b). Therefore, this Bankruptcy Court cannot hear and determine these motions or any part of these proceedings. Defendants assert that the District Court should withdraw the reference or this Court should certify findings and conclusions to the District Court for its ruling. The defendants want to avoid multiple appellate layers if possible, while also disputing the Bankruptcy Court’s and District Court’s jurisdiction over these proceedings. The issue would be premature to the extent that the Court has before it solely the issue of jurisdiction at this time. In re Toledo, 170 F.3d at 1345 n. 6 (whether a proceeding is core is analytically separate from whether there is jurisdiction). However, in order to decide whether to certify this ruling to the District Court, this issue does have to be addressed. Through the District Court’s jurisdiction over bankruptcy matters, this Court also has jurisdiction" }, { "docid": "3298142", "title": "", "text": "medfly program, does not contain the word malathion, and does not conclude or even imply that the problems discussed in the report resulted from exposure to pesticides, much less any pesticide manufactured or sold by any of the Defendants in this case.” In concluding, the Court finds it appropriate to quote from the recent case of Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228 (11th Cir.2000), because the quote captures the essence of the Plaintiffs’ failed attempt to certify a class in this case. As the Eleventh Circuit Court of Appeals noted in that case, “[ojnce one understands that the issues involved in the instant case are predominantly case-specific in nature, it becomes clear that there is nothing to be gained by certifying this case as a class action; nothing, that is, except the blackmail value of a class certification that can aid the plaintiffs in coercing the defendants] into a settlement.” Id. at 1240-1241 n. 21. Accordingly, for the reasons expressed, it is ordered and adjudged as follows: 1) The Report and Recommendation of Magistrate Judge Thomas B. McCoun, III (Dkt.301), is confirmed and approved in all respects and made a part of this order for all purposes, except as may be noted otherwise in this order. 2) The Plaintiffs’ Motion to Certify Class (Dkt.37), as supplemented (Dkt.187), is denied. 3) This case shall proceed on the claims of each individual Plaintiff. 4) Judge McCoun is requested to convene a status conference to consider the issues of disclosure of additional experts and their reports, the filing of motions addressed to the experts, the filing of dispositive motions, ruling on discovery motions deferred pending this Court’s order on class certification, and any other matter he deems appropriate. REPORT AND RECOMMENDATION MCCOUN, United States Magistrate Judge. THIS MATTER is before the court on a referral by the Honorable Steven D. Merry-day, for a Report and Recommendation on Plaintiffs Motion to Certify Class (Doc. 37). Defendant filed a response in opposition (Doc. 73), and the parties filed supplemental pleadings following discovery on class certification issues. See (Docs.187, 216). Numerous declarations, affidavits," }, { "docid": "11603376", "title": "", "text": "class members (and the consequent opt-in procedure) is always the same. The court concludes that class certification is not appropriate in this case because there is considerable doubt as to whether the proposed class satisfies subsection (a)(3) of RUSCC 23. That subsection requires that the claims of the proposed class representatives be typical of those of the class. In determining typicality of claims, it is not appropriate to examine the entire transaction which is the subject of the lawsuit but only those aspects of it which are in dispute. Here, practically all of the facts which are common to potential claimants are a matter of public record and have been conceded by defendant. The issues actually in dispute therefore are limited to two categories: (a) certain basic legal issues including whether plaintiffs have a valid fifth amendment claim, whether defendant is entitled to any defenses which Iran could have raised, and what body of law would govern the measure of any liability; and (b) certain factual issues pertaining to the status of various plaintiffs and the nature and extent of their damages, if any. See n. 5 supra. Because the claims of the potential class members will almost certainly exceed $10,000, this case falls within this court’s exclusive jurisdiction. As explained above, under such circumstances, the existence of common legal issues should be given little weight in comparison to factual issues. Here, the legal issues are identical for the class, but they will be resolved quickly and relatively inexpensively by dispositive motion. The factual issues, i.e., the facts remaining in dispute, are likely to be dissimilar since they concern status and damage questions particular to each claimant. The court is therefore not persuaded that the requirement of typicality of claims has been met. In light of the court’s earlier determination that our class action rule should be narrowly construed, see p. 698 supra, it is inappropriate to grant class action certification under these circumstances. CONCLUSION The motion for class action certification is denied. IT IS SO ORDERED. . The court also stayed proceedings in Amburn-Lijek, No. 564-82C. Order of January" }, { "docid": "17276864", "title": "", "text": "that the bright-line approach “forecloses (b)(2) class certification of all claims that include compensatory damages (or punitive damages) even if the class-wide injunctive relief is the form of relief in which the plaintiffs are primarily interested.” Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 163 (2d Cir.2001) (quotations omitted). Moreover, the Fifth Circuit’s approach ignored “the fact that Rule 23 has historically been understood to vest district courts with the authority to determine whether, in their informed discretion, based on the particulars of the case, the certification prerequisites have been satisfied.” Id. at 164 (quotations omitted). For these reasons, the Second Circuit declined to adopt the bright-line approach, holding instead that: [WJhen presented with a motion for (b)(2) class certification of a claim seeking both injunctive relief and non-incidental monetary damages, a district court must consider the evidence presented at a class certification hearing and the arguments of counsel, and then assess whether (b)(2) certification is appropriate in light of the relative importance of the remedies sought, given all of the facts and circumstances of the case. The district court may allow (b)(2) certification if it finds in its informed, sound judicial discretion that (1) the positive weight or value to the plaintiffs of the injunctive or declaratory relief sought is predominant even though compensatory or punitive damages are also claimed, and (2) class treatment would be efficient and manageable, thereby achieving an appreciable measure of judicial economy. Id. (quotations, alterations, and citations omitted). Though this “ad hoc” approach complicates the analysis when a class seeks “non-incidental monetary damages,” it recognizes that a class seeking incidental damages may be certified under Rule 23(b)(2). See id. at 165 (“This presumption of cohesion and unity continues where incidental damages are ... sought because entitlement to such damages does not vary based on subjective considerations of each class member’s claim ____”). Moreover, the Second Circuit approved of Allison’s definition of “incidental damages.” See id. at 164. The Ninth Circuit has joined the Second Circuit in rejecting the bright-line approach in favor of an ad hoc approach. See Molski v. Gleich, 318 F.3d" }, { "docid": "20259809", "title": "", "text": "and Ms. Davis are typical of those of the class members and, in the case of Ms. Clement, the subclass members they seek to represent.” (First Am. Compl. ¶ 72.) Thus, with respect to this claim, Giron does not represent the class. Even if the parties maintain that Giron is attempting to bring a state law unfair practices claim, the court would not have jurisdiction over this claim because it does not arise, as it must, from the same transaction and set of circumstances as the other plaintiffs’ federal CLA claim. See 28 U.S.C. § 1367(a). . The Supreme Court did state that, when \"confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems.\" Amchem, -U.S. at-, 117 S.Ct. at 2248; see also Fed.R.Civ.P. 23(b)(3)(D). This is not an issue here. . While the plaintiffs allege in the First Amended Complaint that certification is appropriate under Rule 23(b)(2) because the defendants have \"enforced a common policy against, and acted in a uniform manner with respect to, the [class],” (First Am. Compl. 74), the settlement class does not seek declaratory and injunctive relief and, thus, proceeds solely under Rule 23(b)(3). See Rule 23(b)(2) (stating that a class action may be maintained where \"the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief\"). . While the court also noted that \"the superiority of a nationwide class whose individual members may have varying state law claims is suspect, particularly where the CLA authorizes state-wide class actions, each with a separate damages cap of $500,000,” Laughman, at *5, this court does not rely on that portion of the opinion. The CLA does not authorize state-wide class actions, each with a separate $500,000 damages cap, where each suit arises out of the same set of facts. See 15 U.S.C. § 1640 (stating, \"[T|otal recovery under this subparagraph in any class action or series of class actions arising out of the same failure to" }, { "docid": "16235766", "title": "", "text": "court order certifying two nationwide class actions, in part due to the need to apply multiple states’ laws to different class members. In re Bridgestone/Firestone, 288 F.3d 1012 (7th Cir.2002). Subsequently, plaintiffs filed class suits in many jurisdictions and, in at least five suits, sought certification of the previously rejected nationwide classes. In re Bridgestone/Firestone, 333 F.3d 763, 765 (7th Cir.2003). The Seventh Circuit held all members of the putative national classes were enjoined from re-seeking national certification of the same class, based on its prior decision that national certification was unsuitable. Id. at 769. However, the court specifically noted that defendants’ desire to enjoin all class actions, even ones limited to a single product in a single state, was over-reaching. Id. at 765-66. The court emphasized that the only class previously considered on appeal was a nationwide class because the district court had not addressed any statewide classes. Id. Accordingly, the district court properly denied defendants’ request for an injunction that would preclude any class suit in any state court. Id. at 766. While Bridgestone/Firestone holds that in some circumstances denial of class certification may be given estoppel effect, courts are cautioned not to read the case as holding any ruling denying class certification is binding in future litigation. Carnegie v. Household Int’l, Inc., 376 F.3d 656, 662-63 (7th Cir.2004). This court has previously held that the principles of collateral estoppel do not apply here because different facts and a different plaintiff are before the court. Memorandum Opinion & Order 7/30/04, Dkt. No. 28-1 (Oshana argued summary judgment ruling in Zapka estopped Coca-Cola’s summary judgment arguments). Moreover, Coca-Cola’s issue preclusion argument fails because the issue resolved in Zapka is different from the issue presented here. In Zapka, the district judge explicitly denied class certification based on the class “as set out by plaintiff,” and identified specific flaws in the proposed class definitions warranting denial of certification. Here, Oshana proposes a different class that, on its face, attempts to correct the flaws identified in Zapka. The proposed class does not seek to include only those deceived or similarly situated, nor" }, { "docid": "22352061", "title": "", "text": "Gino's, Inc., 621 F.2d 71, 73-74 (3d Cir.) (per curiam), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980). However, in Wilkerson v. Bowen, 828 F.2d 117, 121 (3d Cir.1987), in which the named plaintiffs’ individual claims were favorably resolved and the district court thereafter denied the pending class certification motion, this court held that resolution of the named plaintiffs’ individual claims did not ipso facto preclude the district court from addressing the class certification motion: It would seem to us that the principle espoused in Geraghty is applicable whether the particular claim of the proposed class plaintiff is resolved while a class certification motion is pending in the district court (as in the present case) or while an appeal from denial of a class certification motion is pending in the court of appeals (as in Geraghty). For a further discussion of situations where a district court may decide a pending class certification even after the named plaintiff’s individual claims are resolved, see infra Part III, 2. Still, no opinion of which we are aware allows a district court to exercise jurisdiction over a class certification motion filed by a named plaintiff lacking a live claim at the time the motion is filed. . Numerous opinions interpreting Geraghty have stressed that it only allows, in certain circumstances, an appeal from a decertification order after plaintiff's claims have been settled, to correct any underlying error. See, e.g., Davis v. Ball Memorial Hosp. Ass’n, Inc., 753 F.2d 1410, 1418 n. 14 (7th Cir.1985) (“In Geraghty and Roper, the Court only held that the named class representatives whose claims had become moot, could appeal the denial of class certification.’’); Sannon v. United States, 631 F.2d 1247, 1252 (5th Cir.1980) (noting that Geraghty held that a proposed class representative whose individual claims have been mooted maintains a concrete Article III \"case” or \"controversy” \"only for the limited purpose of challenging the class certification denial”). . In a statement as intricate in its structure as in its reasoning, appellants claim that it “follows from the rulings of the Supreme Court and this" }, { "docid": "1807502", "title": "", "text": "in its entirety, and concluded that the court's failure to rule on class certification did not deprive us of appellate jurisdiction because “the district court did not retain anything for later determination,” id. at 1034 n. 1. In this case, as in Gomez, the district court seems to have believed that no further proceedings would be required after it granted summary judgment. Indeed, the court’s opinion granting summary judgment appeared to assume that the 2,500 to 3,000 individuals who had filed claims with the Human Rights Commission would be bound by its judgment. Given the long delay between the plaintiffs’ motion for class certification, and the intervening transfer of this case from one judge to another, it is entirely possible that the district court believed that the class had been certified. Moreover, unlike in Glidden, the named plaintiffs in this case seem fully representative of the class, thereby removing any basis for believing that the district court may have deliberately deferred certification. In light of the above, we will treat this case as if the district court had certified the plaintiff class. Therefore, the court’s grant of summary judgment is a final order which we have jurisdiction to review. III. Before proceeding to the merits, we must resolve another preliminary matter. While this case was on appeal, Hattie Cunningham died. Her daughter, Wanda Cunningham, has petitioned this court to be substituted as a plaintiff. In order to decide this motion, we must first resolve whether Hattie Cunningham’s § 1983 claim survives her death. If Cunningham’s federal claim survives, we must then resolve whether Wanda Cunningham may be substituted pursuant to Federal Rule of Appellate Procedure 43(a). Federal law governs whether a federal claim survives. However, § 1983 is silent on the question of survivability. Therefore, we must look to 42 U.S.C. § 1988, which provides that if federal law does not provide a rule of decision in a civil rights case, federal law will incorporate the appropriate state law, unless that law is “inconsistent with the Constitution and laws of the United States,” 42 U.S.C. § 1988 (1982); see Robertson" }, { "docid": "579150", "title": "", "text": "in support of a motion for class certification,” and that Daubert motions are typically not made until summary judgment or trial). Thus, in reviewing proffered expert testimony for class certification purposes, the Court’s examination is confined to ensuring “that the basis of the expert opinion is not so flawed that it would be inadmissible as a matter of law.” Visa Check, 280 F.3d at 135 (only question is whether expert evidence is sufficient to demonstrate common questions of fact warranting certification of proposed class, not whether such evidence will ultimately be persuasive); see also In re Polypropylene Carpet Antitrust Litigation, 996 F.Supp. 18, 26 (N.D.Ga.1997) (during class certification proceedings, judicial inquiry is limited to determining whether expert testimony comports with basic scientific principles, has any probative value, and primarily uses evidence common to all class members). If that threshold is satisfied, then all proffered expert testimony will be weighed and considered at the Rule 23 stage. Under no circumstances may a district court “weigh conflicting expert evidence or engage in ‘statistical dueling’ of experts” for Rule 23 purposes. Visa Check, 280 F.3d at 135. The parties’ expert witness evidence will be evaluated in recognition of these bedrock principles. III. Standing of Named Plaintiffs to Represent the Putative Class as to Class A. “[I]t is well-settled that prior to the certification of a class, and technically speaking before undertaking any formal typicality or commonality review, the district court must determine that at least one named class representative has Article III standing to raise each class subclaim.” Prado-Steiman, 221 F.3d at 1279. Simply put, a plaintiff cannot represent a class unless he first shows that he has standing to raise the claims of the class he seeks to represent. See Murray, 365 F.3d at 1288 n. 7. “[A]ny analysis of class certification must begin with the issue of standing.” Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.1987); see also Hines, 334 F.3d at 1256. In Prado-Steiman, 221 F.3d at 1280, for instance, the appellate court vacated class certification and remanded with instructions that the lower court determine whether at least one" }, { "docid": "11603377", "title": "", "text": "the nature and extent of their damages, if any. See n. 5 supra. Because the claims of the potential class members will almost certainly exceed $10,000, this case falls within this court’s exclusive jurisdiction. As explained above, under such circumstances, the existence of common legal issues should be given little weight in comparison to factual issues. Here, the legal issues are identical for the class, but they will be resolved quickly and relatively inexpensively by dispositive motion. The factual issues, i.e., the facts remaining in dispute, are likely to be dissimilar since they concern status and damage questions particular to each claimant. The court is therefore not persuaded that the requirement of typicality of claims has been met. In light of the court’s earlier determination that our class action rule should be narrowly construed, see p. 698 supra, it is inappropriate to grant class action certification under these circumstances. CONCLUSION The motion for class action certification is denied. IT IS SO ORDERED. . The court also stayed proceedings in Amburn-Lijek, No. 564-82C. Order of January 6, 1983. . The President’s authority to abrogate plaintiffs’ rights to sue Iran was upheld in Persinger, 690 F.2d at 1022-23. The rehearing in that case may determine whether plaintiffs could have successfully sued Iran absent the Algiers Accords. . The fact that our rule provides for an opt-in class deprives both plaintiffs and defendant of many of the benefits normally associated with class action certification. Because the opt-in procedure requires an affirmative act from every potential plaintiff to join the class, the device amounts to little more than a permissive joinder rule and is therefore of limited assistance to the proposed class representatives. At the same time, defendant is deprived of the normal benefit of class adjudication, namely the ability to bind unidentified parties if the case should be resolved in its favor. . There are two exceptions. First, the court shares jurisdiction over Tucker Act claims under $10,000 with the district courts. 28 U.S.C. §§ 1346(a)(2), 1491(a)(1), as amended by the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, §§ 129, 133(a)," }, { "docid": "10889917", "title": "", "text": "our prior decisions. See, e.g., Lusardi, 975 F.2d at 975-78; Wilkerson v. Bowen, 828 F.2d 117, 121 (3d Cir.1987); Eisenberg v. Gagnon, 766 F.2d 770, 784-85 (3d Cir.1985); Mazus v. Dept. of Transportation, 629 F.2d 870, 875-76 (3d Cir.1990). Geraghty originated in this circuit. The plaintiff, John Geraghty, was a prisoner in federal custody who had been denied parole. Geraghty brought a suit on behalf of himself and a prospective class of similarly situated inmates challenging the guidelines that the Parole Commission used to determine whether a prisoner would be •released on parole. The district court denied Geraghty’s motion for class certification and granted summary judgment in favor of the Commission. While his appeal was pending before this court, Geraghty finished serving his sentence and was released. The Parole Commission then moved to dismiss the appeal as moot. We concluded that the case was not moot, reversed the district court’s decisions on both class certification and the merits, and remanded the case for further proceedings. The Supreme Court affirmed in relevant part. It held that a federal appellate court retains jurisdiction over a named plaintiff’s challenge to a denial of class certification, even if the plaintiff has not maintained a personal stake in the outcome of the litigation since that decision. The Court recognized that in light of Geraghty’s release, his “substantive claims” — that is, his claims that the Parole Commission had acted unlawfully in adopting and applying its guidelines— were moot. Geraghty, 445 U.S. at 402, 100 S.Ct. at 1211. Nonetheless, it explained: A plaintiff who brings a class action presents two separate issues for judicial resolution. One is the claim on the merits; the other is the claim that he is entitled to represent a class.. .•. We think that in determining whether the plaintiff may continue to press the class certification claim, after the claim on the merits “expires,” we must look to the “personal stake” in the class certification claim. Id. at 402, 100 S.Ct. at 1211-12. The Court then reviewed the purposes of the class action and the named plaintiffs role in this nontraditional" }, { "docid": "15263453", "title": "", "text": "This court also has the option of going to trial on the claims of the plaintiffs named in the master consolidated complaint that was filed in this district. See generally Manual for Complex Litigation, Fourth, § 22.36, p. 373 (2004). The decision not to certify a class does not necessarily mean that there will be hundreds of identical cases separately tried. Finally, plaintiffs suggest that, even if their claims are not certified as a class under Rule 23(b)(3), the common issues should still be certified under Rule 23(c)(4). Whether such an approach is permissible when the over-arching claims are not certified as a class is an open question in the Eighth Circuit. See In re St. Jude Medical, Inc., 522 F.3d 836, 841 (8th Cir.2008). Even if this type of certification were allowable under the rules, however, I would decline to do it here. Certification of a limited issues class would lead to procedural difficulties, and a trial limited to common issues would not resolve any individual plaintiffs claims. This approach would do little if anything to increase the efficiency of this litigation. III. Conclusion Individual circumstances affecting the calculation of individual plaintiffs’ damages predominate over the common issues presented in plaintiffs’ claims. Although plaintiffs propose a number of classes, subclasses, and issues-classes for trying common elements of this litigation, I am not persuaded that any of these approaches represents a superior method for resolving issues raised in the consolidated master complaint. For these reasons, I will deny plaintiffs’ motion for class certification. Accordingly, IT IS HEREBY ORDERED that plaintiffs’ motion [#499] for certification of a class action is DENIED. IT IS FURTHER ORDERED that defendants’ motion [# 693] to file a rebuttal declaration of Dr. Nicholas Kalaitzandonakes is GRANTED. . Bayer CropScience LP is a U.S. corporation and is the business entity alleged to be primarily responsible for the development and marketing of LLRICE. Plaintiffs have named Bayer Crop-Science LP as a defendant, along with numerous other Bayer entities, all of which are owned directly or indirectly by Bayer AG, a German corporation. For purposes of this opinion, I" }, { "docid": "16942814", "title": "", "text": "to both Defendants.” Motion to Remand at 12. Although the putative class members cannot seek relief from Bailey, Ullman asserts that fact is not an obstacle to joining Bailey and is not relevant in evaluating diversity jurisdiction. See Motion to Remand at 12. “The proper analysis for diversity purposes is not on the claims of the members of the putative plaintiff class[;] the focus is on the diversity of the defendant to the named plaintiff. ...” Motion to Remand at 12 (citing Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1288 (11th Cir.1998)). Ullman explains that, although she believes the putative class will meet the requirements for class certification, she must also ensure “that all of her individual claims pertaining to this suit are properly brought, which include claims against Defendant Safeway and against Defendant Bailey, for which Defendant Safeway is liable up to the limits of its UM/UIM coverage with Plaintiff Ullman.” Motion to Remand at 13. Ullman says that even after the class is certified, she will still have the claims against Bailey for any damages above the UM/ UIM limits. See Motion to Remand at 13. Ullman points to a case from the United States Court of Appeals for the Eleventh Circuit, in which the Eleventh Circuit held that, if a “named plaintiff has any possibility of a claim against the non-diverse defendant, diversity cannot be defeated on a fraudulent joinder theory merely because most unnamed class members” do not have a claim against the non-diverse defendant. Motion to Remand at 13-14 (citing Triggs v. John Crump Toyota, Inc., 154 F.3d at 1287). Ullman asserts that Safeway Insurance improperly conflates the elements of class certification with the requirements for diversity jurisdiction under a conventional diversity theory, in which case the Court considers only the citizenship of the named parties: “Because Plaintiff Ullman has stated viable causes of action and claims against a non-diverse Defendant, and has properly joined the non-diverse Defendant, there is no fraudulent joinder of Defendant Bailey in this matter.” Motion to Remand at 14-15. Finally, Ullman says that Safeway Insurance “curiously argues that" } ]

[ { "docid": "22122155", "title": "", "text": "inevitable.” The Court of Appeals also found it to be undisputed “that the work which the contractor had done in the river bed was all authorized and directed by the Government of the United States for the purpose of improving the navigation of this navigable river.” It is also conceded that the work thus authorized and directed by the governmental officers was performed pursuant to the Act of Congress of January 21, 1927, 44 Stat. 1010, 1013. In that view, it is clear that if this authority to carry out the project was validly conferred, that is, if what was done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing its will. See Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 283; Lamar v. Browne, 92 U. S. 187, 199; The Paquete Habana, 189 U. S. 453, 465. Where an agent or officer of the Government purporting to act on its behalf - has been held to be liable for his conduct causing injury to another, the ground of liability has been found to be either that he exceeded his authority or that it was not validly conferred. Philadelphia Company v. Stimson, 223 U. S. 605, 619, 620. See United States v. Lee, 106 U. S. 196, 220, 221; Noble v. Union River Logging R. Co., 147 U. S. 165, 171, 172; Tindal v. Wesley, 167 U. S. 204, 222; Scranton v. Wheeler, 179 U. S. 141, 152; American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 108, 110. Petitioners present the question whether the building of the dikes and the erosion of their land, because of the consequent diversion of the current of the river, constituted a taking of their property for which compensation, must be made. We do not find it necessary to pass upon that question, for if the authorized action in this instance does constitute a taking of property for which there must be just compensation under the Fifth Amendment, the Government has impliedly promised to pay that compensation and has" } ]

[ { "docid": "8181582", "title": "", "text": "that they are not absolutely immune under the Speech or Debate Clause, they are entitled to absolute or qualified immunity under the doctrine of official immunity. To the extent that their conduct is authorized, this Court is of the view that the congressional defendants are entitled to assert a qualified immunity. The judicially created doctrine of official immunity confers immunity on government officials for discretionary acts within the scope of their authority. This doctrine is designed to reconcile two important considerations, on the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government; and on the other, the pro tection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities. Barr v. Matteo, 360 U.S. 564, 565, 79 S.Ct. 1335, 1336, 3 L.Ed.2d 1434 (1959). In Barr, the Supreme Court reaffirmed the official immunity doctrine. In that case, the acting director of a federal agency was sued for malicious defamation by two employees whose suspension for misconduct was announced in a press release. The Court concluded that the press release was “within the outer perimeter of [the acting director’s] line of duty” and “was an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively.” Id. at 575, 79 S.Ct. at 1341. Consequently, the Court held that a false and injurious publication, the issuance of which was otherwise within the scope of his authority, was not actionable notwithstanding that its issue was allegedly malicious. In Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), the Supreme Court limited the absolute immunity afforded to federal officials by its decision in Barr. In Butz, federal agency officials were sued for the wrongful initiation of administrative proceedings against the plaintiff. The Court held that when federal officials are sued for allegedly unconstitutional conduct they are entitled only to" }, { "docid": "10896114", "title": "", "text": "unfit for its intended use.” Complaint 18(a). Defendants have moved for summary judgment, relying on the “government contract defense,” which, so defendants contend, shields government contractors from liability to third parties for design defects in products supplied to government specifications. Plaintiff, contending that the defense is inapplicable in a product liability setting, asks that the defense be stricken and that summary judgment be denied. I. The Supreme Court first recognized the government contract defense in Yearsley v. Ross Construction Co., 309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554 (1940). In Yearsley, the Court ruled that the defendant, a company that performed work under a contract with the federal government, was not liable for injury to private property resulting from its work improving navigation of the Missouri river: “[I]f this authority to carry out the project was validly conferred, that is, if what was done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing its will.” Id. at 20-21, 60 S.Ct. at 414-415. Subsequently, state and federal courts have used the Yearsley rationale to shield government contractors from liability when they complied with government specifications. Plaintiff challenges the applicability of Yearsley and the government contract defense in this case. Because plaintiff’s negligence claims, see 28 U.S.C. § 2680(a), and strict liability claims, see Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972), against the government would be barred by sovereign immunity, he argues that “fundamental fairness” requires permitting him to assert those claims against defendant. The cases, however, explain why this argument must be rejected. “First, tort liability principles properly seek to impose liability on the wrongdoer whose act or omission caused the injury, not on the otherwise innocent contractor whose only role in causing the injury was the proper performance of a plan supplied by the government.... Before any societal benefit can be derived from the deterrent effects of tort liability, however, the party in a position to correct the tortious act or omission must be held accountable for the damages caused and thus motivated" }, { "docid": "22075770", "title": "", "text": "consideration was outweighed by the public interest in having government officials perform their duties fearlessly. New public officials, Judge Hand reasoned, would perform their functions vigorously if they knew they might have to bear the burden of standing trial and defending their actions. This immunity was absolute, moreover, and was upheld even if malice was alleged. In Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L.Ed.2d 1434 (1959) the Supreme Court adopted the reasoning of Judge Hand and held that the Acting Director of the Office of Rent Stabilization could not be sued for issuing an allegedly libelous press release. The plurality opinion, written by Mr. Justice Harlan, first focused on the nature of the defendant. Stating that one must look to the. duties performed by the officer, not to his title or place in the hierarchy, Mr. Justice Harlan held that an official is immune if he performs “discretionary acts at those levels of govern ment where the concept of duty encompasses the sound exercise of discretionary authority.” 360 U.S. at 575, 79 S. Ct. at 1341. Once an official is found to be exercising this kind of discretion, the act complained of must be “within the outer perimeter of [the official’s] line of duty” before the official will be granted immunity. 360 U.S. at 575, 79 S.Ct. at 1341. Other cases dealing with this subject have proceeded on one or both of these grounds. Thus we have two issues to resolve, both on the face of the allegations of the complaint: (1) taking these allegations to be true, as we must, is there a showing that the Narcotics Agents were acting “within the outer perimeter of [their] line of duty”; and, if so, (2) were they alleged to be performing the type of “discretionary” function that entitles them to immunity from suit. There is no allegation of malice in this complaint. We hold that what these Narcotics Agents are charged with, despite the allegations of illegality because of lack of a warrant and probable cause, and the use of unnecessary force, is precisely what Narcotics" }, { "docid": "12171167", "title": "", "text": "his injuries. It is therefore more appropriate that Dr. Reuber be directed to this well-articulated body of law, rather than to require this court to create a novel and probably superfluous cause of action. This is particularly true since the practice of considering whether the plaintiff has an alternative remedy before implying a tort action from the Constitution is well established by Supreme Court precedent. See, e.g., Davis v. Passman, supra, 442 U.S. at 245, 99 S.Ct. at 2277 (1979) (stating that “since respondent is no longer a Congressman ... equitable relief in the form of reinstatement would be unavailing. And there are available no other alternative forms of judicial relief.”). To be sure, when the Court has refused to imply a tort action under the Constitution, it has looked to an alternative remedy under federal law. See, e.g., Bush v. Lucas, supra (holding that it would be “inappropriate” for the court to create a constitutional action on behalf of a federal employee for alleged defamation and alleged retaliatory demotion in light of the provisions passed by Congress to provide substantive and procedural remedies to federal employees). However, I do not think that the fact that the source of the alternative remedy is state law precludes us from treating it as a factor militating against the creation of a new cause of action against private parties. Private parties do not, of course, possess immunity that federal officials enjoy for common law torts, see Barr v. Matteo, 360 U.S. 564, 575, 79 S.Ct. 1335, 1341, 3 L.Ed.2d 1434 (1959) (holding that federal officials have absolute immunity from common law tort liability if their actions are “taken ... within the outer perimeter of [their] line of duty”). See also McKinney v. Whitfield, 736 F.2d 766 (D.C. Cir.1984) (holding that alleged assault and battery of an employee was not within a supervisor’s outer perimeter of his line of duty). Thus, Dr. Reuber, unlike Mr. Bivens, does not have to resort to a constitutional tort claim to recover damages. Cf. Bivens, supra. 403 U.S. at 410, 91 S.Ct. at 2012 (Harlan, J., concurring) (stating" }, { "docid": "18213877", "title": "", "text": "are entitled to absolute immunity for common law torts committed while acting within the course of their employment. The plurality continued that the immunity extended even to malicious acts that were within the outer perimeter of the federal employee’s line of duty. Id. at 575, 79 S.Ct. at 1341, 3 L.Ed.2d at 1443. The plurality noted that although “there may be occasional instances of actual injustice which will go unredressed,” it was a necessary price to pay for the greater good. Id. at 576, 79 S.Ct. at 1342, 3 L.Ed.2d at 1444. Finally, the plurality stated that sanctions other than civil tort actions were available to deter improper actions by government officials. Id. The plurality in Barr, 360 U.S. at 575, 79 S.Ct. at 1341, 3 L.Ed.2d at 1443, acknowledged that the immunity has its limits. The “action taken [must be] within the outer perimeter of [the federal employee’s] line of duty.” Id. This court is now called on to define the limits of the absolute immunity in actions for battery against federal employees not engaged in law enforcement activities. We hold that the individual citizen’s interest to be protected from physical force by federal officials outweighs the public’s interest in shielding government officials from defending damage suits brought on account of action taken in exercise of their official responsibilities when the battery by the federal official “cause[s] severe injuries, [is] grossly disproportionate to the need for action under the circumstances, and [is] inspired by malice.” Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981) (same inquiry to determine whether physical abuse is actionable under 42 U.S.C. § 1983 (1982)). Here, Dretar alleges in her complaint that after the termination of a work-related discussion, Smith shoved her out of his office and closed the door, causing the door handle to strike her. As a result of the blows, Dretar suffered pain in her lower back and incurred medical expenses in the amount of $44.85. Taking Dretar’s allegations as true, we hold that because Dretar has not alleged sufficiently severe injuries which, the district court properly held that Smith was entitled" }, { "docid": "14443500", "title": "", "text": "defense “is based on the premise that a private contractor performing acts for the government should not be liable for these acts if the federal government would be immune from liability had it performed the acts directly.” Contango argues that Weeks Marine is not entitled to immunity because the United States is not entitled to immunity in this case. Contango also argues that the government contractor defense does not apply because Weeks Marine itself was negligent. “Government contractor immunity is derived from the government’s immunity from suit where the performance of a discretionary function is at issue.” Kerstetter v. Pacific Scientific Co., 210 F.3d 431, 435 (5th Cir.2000). Government contractors are therefore “entitled to assert the government’s sovereign immunity in suits arising from [discretionary function] activities.” Bynum v. FMC Corp., 770 F.2d 556, 564 (5th Cir.1985). The Suits in Admiralty Act contains a discretionary function exception. Although the United States has waived its immunity from tort suits under the Act, the exception bars suits against the United States for discretionary actions based on policy considerations. Wiggins v. United States Through Dept. of Army, 799 F.2d 962, 965 (5th Cir.1986). The United States’ failure to include the Contango pipeline in the contract specifications and subsequent failure to warn Weeks Marine of its error was not a discretionary action based on policy considerations. Therefore, the exception does not apply, sovereign immunity has been waived, and the government will be liable for breaching its duty to Contango. A defendant asserting the government contractor defense must also establish that it did not exceed its authority in performing the contract. In Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 60 S.Ct. 413, 414, 84 L.Ed. 554 (1940), the Court held that if the “authority to carry out the project was validly conferred” and the contractor has not “exceeded his authority” in acting on behalf of the United States, “there is no liability on the part of the contractor for executing [the United States’] will.” Accordingly, under Years-ley a party acting on behalf of the government will be liable for actions causing injury to another" }, { "docid": "23480865", "title": "", "text": "which the claim arose ... the United States shall be substituted as the party defendant.” 28 U.S.C. § 2679(d)(1). A scope of employment certification issued by the Attorney General is subject to de novo review by the district court. Meridian, 939 F.2d at 745. In such a case, we review the district court’s scope of employment determination de novo. Id. The district court based its conclusion that Behrens was not acting within the scope of his employment as a Supervisory Agent of the FHLBB on the language of the FHLBB regulations then in force. The court found that under the FHLBB regulations governing supervisory agents, neither Behrens nor his Principal Supervisory Agent, James Girona, had the authority to order that Pelletier be removed from his position as managing officer of Pioneer. 12 C.F.R. § 501.11 (1989), repealed by 54 Fed.Reg. 49,420 (1989). In addition, the court found no evidence that the FHLBB had delegated that authority to Behrens or to Cirona by any other means. Because removal of Pelletier from his position was not within the scope of Behrens’s authority as defined by regulation, the court concluded that Behrens was not acting within the scope of his employment. That conclusion confuses the narrow sense in which “scope of employment” was understood for purposes of pre-FELRTCA doctrines of official immunity with the broader sense in which that term is used in the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, of which the FELRTCA is a part. Before the enactment of the FELRTCA established a statutory right to substitution, federal employees who were sued in tort for injuries arising out of conduct within the scope of their employment could attempt to assert the common law defense of official immunity. That defense shielded only conduct “within the outer perimeter” of the official’s designated duties. Barr v. Matteo, 360 U.S. 564, 575, 79 S.Ct. 1335, 1341, 3 L.Ed.2d 1434 (1959) (plurality opinion). Conduct outside the scope of an official’s authority, as defined by statute, regulation, or established practice, was unprotected. Id. at 572, 79 S.Ct. at 1340 (“ ‘The decisions have," }, { "docid": "19537137", "title": "", "text": "building dikes on the Missouri River pursuant to its contract with the Federal Government had washed away part of the plaintiff's land. We held that the contractor was not answerable to the landowner. \"[T]he work which the contractor had done in the river bed,\" we observed, \"was all authorized and directed by the Government of the United States\" and \"performed pursuant to the Act of Congress.\" 309 U.S., at 20, 60 S.Ct. 413 (internal quotation marks omitted). Where the Government's \"authority to carry out the project was validly conferred, that is, if what was done was within the constitutional power of Congress,\" we explained, \"there is no liability on the part of the contractor\" who simply performed as the Government directed. Id., at 20-21, 60 S.Ct. 413. The Court contrasted with Yearsley cases in which a Government agent had \"exceeded his authority\" or the authority \"was not validly conferred\"; in those circumstances, the Court said, the agent could be held liable for conduct causing injury to another. Id., at 21, 60 S.Ct. 413. In Filarsky, we considered whether a private attorney temporarily retained by a municipal government as an investigator could claim qualified immunity in an action brought under 42 U.S.C. § 1983. Finding no distinction in the common law \"between public servants and private individuals engaged in public service,\" we held that the investigator could assert \"qualified immunity\" in the lawsuit. 566 U.S., at ----, ----, 132 S.Ct., at 1663, 1662. Qualified immunity reduces the risk that contractors will shy away from government work. But the doctrine is bounded in a way that Campbell's \"derivative immunity\" plea is not. \"Qualified immunity may be overcome ... if the defendant knew or should have known that his conduct violated a right 'clearly established' at the time of the episode in suit.\" Id., at ----, 132 S.Ct., at 1668 (GINSBURG, J., concurring) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). Campbell does not here contend that the TCPA's requirements or the Navy's instructions failed to qualify as \"clearly established.\" At the pretrial stage of" }, { "docid": "14443501", "title": "", "text": "Wiggins v. United States Through Dept. of Army, 799 F.2d 962, 965 (5th Cir.1986). The United States’ failure to include the Contango pipeline in the contract specifications and subsequent failure to warn Weeks Marine of its error was not a discretionary action based on policy considerations. Therefore, the exception does not apply, sovereign immunity has been waived, and the government will be liable for breaching its duty to Contango. A defendant asserting the government contractor defense must also establish that it did not exceed its authority in performing the contract. In Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 60 S.Ct. 413, 414, 84 L.Ed. 554 (1940), the Court held that if the “authority to carry out the project was validly conferred” and the contractor has not “exceeded his authority” in acting on behalf of the United States, “there is no liability on the part of the contractor for executing [the United States’] will.” Accordingly, under Years-ley a party acting on behalf of the government will be liable for actions causing injury to another if (1) the authority to carry out the contract was not validly conferred or (2) the contractor exceeded his authori ty in performing the acts that caused the injury. The Fifth Circuit expanded upon the second prong in Ackerson v. Bean Dredging LLC, 589 F.3d 196 (5th Cir.2009). In Ackerson the court concluded that Yearsley barred a suit against the defendant-contractors, finding that the contractors had not “exceeded their authority” as a matter of law. Id. at 207. The court reasoned that the plaintiffs had alleged that the entire government project — the subject of the contract — caused the plaintiffs’ injuries, “not any separate act of negligence by the [c]ontractor-[d]e-fendants.” Id.; see also City of Worcester v. HCA Mgmt. Co., Inc., 753 F.Supp. 31, 38 (D.Mass.1990) (government contractor not entitled to immunity where “the harm was caused by the [contractor’s] own tor-tious conduct”). The government contractor defense therefore requires a contractor to have acted without negligence in performing actions pursuant to a contract. Because the government contractor defense is an affirmative one, Weeks Marine" }, { "docid": "16534093", "title": "", "text": "is unavailing. It is well settled that the functional analysis governing prosecutorial immunity as against federal claims has no application to common law claims. Whatever the nature of a prosecutor’s activity, he may not be sued at common law for discretionary conduct within the outer perimeter of his authority. Dellums v. Powell, 660 F.2d 802 (D.C.Cir.1981), cited by Gray, has no application. Because that case involved a constitutional claim, anything said therein that might bear on the proper analysis of prosecutorial function is irrelevant to application of immunity as against a common law claim. III. Sovereign Immunity The United States is protected from unconsented suit under the ancient common law doctrine of sovereign immunity. Prior to enactment of the FTCA, sovereign immunity did not entirely preclude redress for tortious governmental acts, but relegated injured citizens to the onerous process of securing recompense by private bill. In the interest of providing a more efficient means of compensation, the FTCA was enacted as a broad consent to suit for personal injury or death caused by the tortious actions of government employees acting within the scope of their employment under circumstances where a private person would be liable. Balanced against the interest in facilitating private redress, however, was a concern for protecting against unwarranted judicial intrusion into areas of governmental operations and policymaking. Congress thus retained a sovereign immunity from suit in 28 U.S.C. § 2680(a) for “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” The District Court held that all of Gray’s allegations challenge discretionary functions and, accordingly, dismissed his FTCA claim. We uphold the dismissal. Because the obscurity of this area is matched only by its wealth of conclusory analytical lábels, wading through the relevant case law is surprisingly difficult. We therefore preface our application of section 2680(a) with a discussion of its proper scope, guided — as we were similarly guided in considering official immunity —" }, { "docid": "22075771", "title": "", "text": "575, 79 S. Ct. at 1341. Once an official is found to be exercising this kind of discretion, the act complained of must be “within the outer perimeter of [the official’s] line of duty” before the official will be granted immunity. 360 U.S. at 575, 79 S.Ct. at 1341. Other cases dealing with this subject have proceeded on one or both of these grounds. Thus we have two issues to resolve, both on the face of the allegations of the complaint: (1) taking these allegations to be true, as we must, is there a showing that the Narcotics Agents were acting “within the outer perimeter of [their] line of duty”; and, if so, (2) were they alleged to be performing the type of “discretionary” function that entitles them to immunity from suit. There is no allegation of malice in this complaint. We hold that what these Narcotics Agents are charged with, despite the allegations of illegality because of lack of a warrant and probable cause, and the use of unnecessary force, is precisely what Narcotics Agents are supposed to do, namely, make arrests in narcotics cases. So we hold they were alleged to be acting “within the outer perimeter of [their] line of duty.” But we reject the claim of immunity because we do not agree that the Agents were alleged to be engaged in the performance of the sort of “discretionary” acts that require the protection of immunity. In the latter part of this opinion we discuss and support the defense of good faith and reasonable belief that the arrest and search were lawful and reasonable. A Scope of Authority In Spalding v. Vilas, supra, 161 U.S. 483, 498, 16 S.Ct. 631, 637 (1896) the Supreme Court said that an official is within the scope of his authority if his “action[s] [have] more or less connection with the general matters committed by law to his control or supervision.” Judge Hand, in Gregoire v. Biddle, supra, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950), phrased it this way: What" }, { "docid": "17697054", "title": "", "text": "with respect to his 1977 taxes. He brought this suit in federal district court against his employer, the assistant legal counsel for his employer who had accepted the levy, and IRS agent Terry. He alleged violations of his constitutional rights and sought compensatory and punitive damages. The first two defendants were dismissed early from the case. On the magistrate’s recommendation, the trial judge rendered summary judgment for defendant Terry, on the ground that she was either absolutely or qualifiedly immune, and dismissed the action. I. Absolute Immunity Executive officials have long enjoyed some form of immunity for acts performed in the course of their official duties. The underlying rationales are (1) the injustice of imposing personal liability on one whose public office obliges the exercise of discretion and (2) the danger that potential liability will compromise the forthright performance of official duties. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 239-40, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974). The rules governing official immunity are largely of judicial making and have changed considerably over the years. Earlier cases wrestled with the issue with varying results. See id. 416 U.S. at 241, 94 S.Ct. at 1689. In some instances courts did not foreclose recovery on immunity grounds, see, e.g., Bates v. Clark, 95 U.S. 204, 24 L.Ed. 471 (1877), and were reluctant to formulate a rule that would do so irrespective of the circumstances, see O’Campo v. Hardisty, 262 F.2d 621, 625 (9th Cir.1958). Eventually, executive officials performing discretionary functions were protected from damage suits by absolute official immunity, if they had acted within the “outer perimeter” of their duties. E.g., Barr v. Matteo, 360 U.S. 564, 575, 79 S.Ct. 1335, 1341, 3 L.Ed.2d 1434 (1959) (opinion of Harlan, J.). This general rule was applied to IRS agents. Sowders v. Damron, 457 F.2d 1182, 1184 (10th Cir.1972); Bridges v. IRS, 433 F.2d 299, 300 (5th Cir.1970); David v. Cohen, 407 F.2d 1268, 1271-72 & n. 2 (D.C.Cir.1969); Bershad v. Wood, 290 F.2d 714, 716, 719 (9th Cir.1961). A major change occurred when the Supreme Court concluded that absolute immunity was inappropriate" }, { "docid": "23161462", "title": "", "text": "out of the Attorney General’s argument here. The defendant in Barr, the acting director of an executive agency, claimed absolute immunity from a malicious defamation suit brought by two former employees. The Supreme Court’s plurality opinion held that the official was absolutely immune since the issuance of the defamatory press release was “within the outer perimeter of [the defendant’s] line of duty” and was “an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively.” 360 U.S. at 575, 79 S.Ct. at 1341. The Court succinctly stated its rationale for granting absolute immunity: It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties— suits which would consume time and energies which would otherwise be devoted to government service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government. Id. at 571, 79 S.Ct. at 1339. In balancing the deprivation to the individual denied a remedy against the interest of governmental efficiency, the Court recognized that “there may be occasional instances of actual injustice which will go unredressed, but we think that price a necessary one to pay for the greater good.” Id. at 576, 79 S.Ct. at 1342. The plaintiffs in Barr alleged defamation, a cause of action arising under state tort law; in Butz, the Court was presented with allegations of constitutional deprivations. This distinction, in the Supreme Court’s view, was crucial: [W]e are confident that Barr did not purport to protect an official who has not only committed a wrong under local law, but has also violated those fundamental principles of fairness embodied in the Constitution. Whatever level of protection from state interference is appropriate for federal officials executing their duties under federal law, it cannot be doubted that these officials, even when acting pursuant to congressional authorization, are subject to the restraints imposed by the Federal Constitution. 98 S.Ct. at 2905 (footnote omitted). Thus," }, { "docid": "21727066", "title": "", "text": "its progeny, they are absolutely immune from liability for the common law tort claims Strothman has asserted. In Barr, the Acting Director of the Office of Rent Stabilization was sued for libel after he issued a press release stating the reasons why he intended to suspend two officers of the agency. In determining whether the defendant’s conduct was absolutely privileged, the Court was called upon to balance: “on the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government; and on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities.” Id. at 565, 79 S.Ct. at 1336. Tracing the history and purpose of the judicially created official immunity doctrine, the Court emphasized the necessity of freeing government officials from the fear of damage suits based on actions taken in the course of their duties — “suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vig orous, and effective administration of policies of government.” Id. at 571, 79 S.Ct. at 1339. The Court found that in the case before it, the defendant’s action constituted an appropriate exercise of discretion “within the outer perimeter of [his] line of duty.” Id. at 575, 79 S.Ct. at 1341. It concluded that under the circumstances, the defendants’ conduct was absolutely privileged, despite the plaintiff’s allegations of malice. Id. Numerous cases since Barr have applied the doctrine of official immunity, and this court has long recognized the general rule that federal officials are absolutely immune from liability for “alleged torts which result from acts done within the framework or scope of their duties which necessarily involve the exercise of discretion which public policy requires be made without fear of personal liability.” Garner v. Rathburn, 346 F.2d 55, 56 (10th Cir.1965). See also, e.g., Williams v." }, { "docid": "1723896", "title": "", "text": "scope of his authority and therefore should be granted official immunity from liability. Major General Welch argues on appeal that under Barr he is entitled to absolute immunity from liability on the common law tort claims of (1) assault, (2) battery and (3) intentional infliction of emotional distress. We now consider whether Barr entitled Major General Welch to absolute immunity from liability on the common law tort claims listed above. Barr involved a libel action brought by the Acting Director of the Office of Rent Stabilization. The Supreme Court, in a plurality decision, held that the acting director was absolutely immune from damages arising from the allegedly defamatory press release. Speaking for the plurality, Justice Harlan reasoned that an official immunity doctrine was needed because government officials should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government. Barr, 360 U.S. at 571, 79 S.Ct. at 1339. Based on this reasoning the Acting Director was shielded from prosecution. The libel claim involved actions “within the outer perimeter of [the acting director’s] line of duty ....” Barr, 360 U.S. at 575, 79 S.Ct. at 1341. ■ In this case Major General Welch asserts that Ms. Araujo’s claim also concerned actions within his line of duty. Thus, under Barr, he concludes that Ms. Araujo’s suit against him should fail. This court's reading of Barr required the defendant official to satisfy two prerequisites before official immunity can be granted. We articulated the appropriate inquiry in Johnson v. Alldredge, 488 F.2d 820, 824 (3d Cir.1973) (footnote omitted). We stated: First, as Barr makes clear, immunity protects officers from liability only for actions having a policy-making or judgmental element. This requirement has sometimes been phrased as permitting officials to enjoy immunity from liability for the exercise of “discretionary” but not “ministerial” functions. It reflects the purpose for" }, { "docid": "21568462", "title": "", "text": "state-tort actions against it for injuries caused by the negligence of its employees acting within the scope of their employment, 28 U.S.C. § 1346(b), contains a provision expressly excepting from that limited waiver of sovereign immunity all claims based on the discretionary acts or omissions of federal employees. 28 U.S.C. § 2680(a). The courts have straggled for years to define the scope of this so-called \"discretionary function” exception to the FTCA. See generally 14 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure: Jurisdiction 2d § 3658 (1985) at 337-45. . The scope of the absolute immunity created by the Westfall Act's \"exclusive remedy” provision is not exactly the same in literal terms as the scope of the absolute immunity available under the pre-Westfall common law doctrine as defined in the Barr v. Matteo line of cases leading up to the Westfall decision. Whereas the pre-Westfall common law immunity cases had defined the immunity as extending to conduct \"within the outer perimeter of [a federal employee’s] line of duty,\" Barr v. Matteo, 360 U.S. at 575, 79 S.Ct. at 1341, the Westfall Act defines it as extending to conduct \"within the scope of [the employee’s] office or employment.” 28 U.S.C. § 2679(b)(1). The distinction appeared at first to be of little consequence, since the phrase \"within the outer perimeter of the employee’s official duties\" was often used interchangeably with the phrase \"within the scope of his employment” in the common law immunity cases. See, e.g., Westfall, 484 U.S. at 293, 295, 297-98, 108 S.Ct. at 582, 583, 584 (\"within the scope of ... employment”); id. at 300, 108 S.Ct. at 585 (\"within the outer perimeter of ... official[ ] duties”); id. at 294, 108 S.Ct. at 582 (\"within the scope of ... duties”). It became important only when the lower courts later held that whether particular conduct was “within the scope of employment” for purposes of Westfall Act immunity was to be determined not by reference to a uniform body of federal common law, but by reference to the respondeat superior law of the state in which the" }, { "docid": "7267510", "title": "", "text": "WRS’s contention is that it is relieved of liability to RLAD because WRS merely executed the instructions of the EPA in cleaning up the site. Conversely, RLAD claims that the defense is inapplicable to this action. 1. Yearsley In Yearsley, the defendant contractor injured the real property of riparian landowners while constructing dikes in the Missouri River pursuant to a contract with the United States. Yearsley, 309 U.S. at 19, 60 S.Ct. at 414. This construction project was statutorily authorized by Congress and supervised by federal officials. Id. The landowners sued the contractor for damages pursuant to state law, alleging that the contractor had caused the erosion of their realty. Id. The Supreme Court, however, rejected the landowners’ suit, holding that the contractor could not be held liable for the injuries. The Court concluded that because the “authority to carry out the project was validly conferred, that is, [it] was done ... within the constitutional power of Congress, there is no liability on the part of the contractor for executing its will.” Id. at 20-21, 60 S.Ct. at 414. The Court reasoned that the contractor could not be held liable because it was a government agent “simply acting under the authority thus validly conferred.” Id. at 22, 60 S.Ct. at 415. Therefore, because “[t]he action of the agent is ‘the act of the government,’” and the government had the authority to execute the project, the contractor could not be held liable. Id. 2. Boyle In Boyle, the Court elaborated on the defense articulated in Yearsley. In Boyle, the defendant-manufacturer, pursuant to specifications provided by the United States, constructed a military helicopter with an allegedly defective escape hatch. Id. 487 U.S. at 502-03, 108 S.Ct. at 2513. As a result of this alleged defect, the copilot of the helicopter was drowned when his craft crashed into the water because he could not extricate himself from the wreckage. Id. at 502, 108 S.Ct. at 2513. The executor of the copilot’s estate sued the manufacturer, contending that he could assert state tort claims against the manufacturer. Id. at 503, 108 S.Ct. at 2513." }, { "docid": "2992834", "title": "", "text": "exercise their duties, especially discretionary duties, without having to defend their actions in court. The doctrine of immunity reflects the view that an official may be excessively hampered if he is subject to the tedious and potentially embarrassing process of litigation, regardless of the ultimate outcome. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949). Accordingly, the first step of the inquiry is deciding whether the acts complained of were within the outer perimeter of the defendant’s official duties. If the actions were beyond this boundary, clearly the officer is not immune. But does immunity automatically attach if the official was acting within the outer perimeter of his authority? The Seventh Circuit has answered this question affirmatively, and granted immunity upon a showing that the defendant official was acting within the scope of his authority. Scherer v. Morrow, 401 F.2d 204 (7th Cir. 1968) cert. denied, 393 U.S. 1084, 89 S.Ct. 868, 21 L.Ed.2d 777 (1969); Scherer v. Brennan, 379 F.2d 609 (7th Cir. 1967) cert. denied, 389 U.S. 1021, 88 S.Ct. 592, 19 L.Ed.2d 666 (1967). The Second Circuit, on the other hand, imposes an additional test before granting immunity. In Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 456 F.2d 1339 (2d Cir. 1972), the court held that federal officers are immune only if they were acting within the scope of their authority and if their duties were discretionary. In developing the discretionary function test, the court relied upon language in Barr v. Matteo, supra, that officers are immune if they perform discretionary acts at those levels of government where the concept of duty encompasses the sound exercise of discretionary authority. 360 U.S. 564, 575, 79 S.Ct. 1335, 1341, 3 L.Ed.2d 1434. In Bivens, the court specifically found that the officers, who were sued in connection with making arrests, were acting within their authority but were not exercising discretion. The court then held that the officers were not immune from money damages. Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018," }, { "docid": "9687676", "title": "", "text": "maintaining a civil action under the Federal Tort Claims Act; and, (2) even if this plaintiff had exhausted his administrative remedies, the instant action would be barred by 28 U.S.C. § 2680(a) which provides that the provisions of the Federal Tort Claims Act shall not apply to — ‘any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.’ ” The District Court further stated in its Memorandum Opinion: “In Barr v. Matteo, 360 U.S. 564, 575 [79 S.Ct. 1335, 3 L.Ed.2d 1434] (1959), the Court indicated that government officials were completely immune from suit if the acts complained of were within the outer perimeter of their line of duty. Certainly, as the affidavits filed with the motion to dismiss indicate, Warden Parker’s decisions with regard to the segregation and treatment of this plaintiff were well within the limits of his duties.” The foregoing indicates that the District Court considered, and relied on, the materials appearing in the unchallenged Affidavit of the defendant Warden and that since it considered matters beyond the Complaint that it was in substance granting summary judgment in favor of the defendant pursuant to the provisions of Rule 12(b), F.R.Civ.P. On review of the record we are of the opinion that the District Court did not err in granting summary judgment on its finding that the defendant Warden’s conduct with respect to the plaintiff was within the outer perimeter of his authority and duties thus rendering him immune from suit. As earlier noted, the plaintiff made no response to the defendant’s motion for summary judgment and its accompanying affidavits. In light of the assertion in the Affidavits that the defendant Warden was acting within the outer perimeter of his authority and duties, it was incumbent on the plaintiff, by affidavit or otherwise, as provided in Rule 56, F.R.Civ.P., to set forth specific facts showing that there was a genuine issue for trial as" }, { "docid": "19537136", "title": "", "text": "the Government's unqualified immunity from liability and litigation? We hold they do not. \"[G]overnment contractors obtain certain immunity in connection with work which they do pursuant to their contractual undertakings with the United States.\" Brady v. Roosevelt S.S. Co., 317 U.S. 575, 583, 63 S.Ct. 425, 87 L.Ed. 471 (1943). That immunity, however, unlike the sovereign's, is not absolute. See id., at 580-581, 63 S.Ct. 425. Campbell asserts \"derivative sovereign immunity,\" Brief for Petitioner 35, but can offer no authority for the notion that private persons performing Government work acquire the Government's embracive immunity. When a contractor violates both federal law and the Government's explicit instructions, as here alleged, no \"derivative immunity\" shields the contractor from suit by persons adversely affected by the violation. Campbell urges that two of our decisions support its \"derivative immunity\" defense: Yearsley, 309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554, and Filarsky v. Delia, 566 U.S. ----, 132 S.Ct. 1657, 182 L.Ed.2d 662 (2012). In Yearsley, a landowner asserted a claim for damages against a private company whose work building dikes on the Missouri River pursuant to its contract with the Federal Government had washed away part of the plaintiff's land. We held that the contractor was not answerable to the landowner. \"[T]he work which the contractor had done in the river bed,\" we observed, \"was all authorized and directed by the Government of the United States\" and \"performed pursuant to the Act of Congress.\" 309 U.S., at 20, 60 S.Ct. 413 (internal quotation marks omitted). Where the Government's \"authority to carry out the project was validly conferred, that is, if what was done was within the constitutional power of Congress,\" we explained, \"there is no liability on the part of the contractor\" who simply performed as the Government directed. Id., at 20-21, 60 S.Ct. 413. The Court contrasted with Yearsley cases in which a Government agent had \"exceeded his authority\" or the authority \"was not validly conferred\"; in those circumstances, the Court said, the agent could be held liable for conduct causing injury to another. Id., at 21, 60 S.Ct. 413. In Filarsky," } ]

[ { "docid": "14009978", "title": "", "text": "conferred upon members of Congress by the “Speech or Debate” clause in the United States Constitution. The “Speech or Debate” clause does not apply, or purport to apply, to state legislators. United States v. Craig, 7 Cir., en banc, 1976, 537 F.2d 957, cert. denied sub nom. Markert v. United States, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796; In re: Grand Jury Proceedings, 3 Cir., 1977, 563 F.2d 577. However, it furnishes a place of beginning. The clause reads as follows: “The Senators and Representatives . for any Speech or Debate in either House . . . shall not be questioned in any other Place.” U.S.Const. Art. I, § 6. Like much other Constitutional language, this has been found to say a great deal in very little, and at the same time its meaning has yet to be fully explored. At the one end of the spectrum, no civil or criminal action will lie for whatever a legislator says on the floor. United States v. Johnson, 1966, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681; Cochran v. Couzens, 1930, 59 App.D.C. 374, 42 F.2d 783, cert. denied, 282 U.S. 874, 51 S.Ct. 79, 75 L.Ed. 772. At the other end, although no such case has come to our attention, if a legislator claims he was in Chicago at a certain moment, it should be open to show that he was in the Capitol making an address. Wherever the line may be, it is not, of course, limited to actions on the floor. If this immunity were applicable here, it might be difficult to make any reference to the origin of the report’s Conclusion, even for the limited purpose of showing DiCarlo’s connection with MacKenzie and McKee. Cf. Gravel v. United States, 1972, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583. See, in general, United States v. Brewster, ante. We are concerned, however, only with the privilege or immunity that attaches to public officials in respect to their official acts. We mention first a misconception. Defendants seek the “establishment of a legislative privilege under [Federal Evi dence]" } ]

[ { "docid": "22797779", "title": "", "text": "seems to me, set forth the guidelines appropriate for this one, and I would follow them in the present context. II I also do not join the Court in its flat ruling, ante, at 404, that the Speech or Debate Clause of our Federal Constitution, Art. I, § 6, has no application to state legislatures. That may well be, but some federal courts have ruled otherwise, Eslinger v. Thomas, 476 F. 2d 225, 228 (CA4 1973) (holding the Clause to be applicable); In re Grand Jury Proceedings, 563 F. 2d 577, 582-583 (CA3 1977), and United States v. Gillock, 587 F. 2d 284, 286 (CA6 1978) (both recognizing a federal common-law speech or debate privilege for state legislators based in part on the federal Speech or Debate Clause), and the controversy on this point remains a live one. See United States v. Craig, 528 F. 2d 773, 776 (CA7), opinion on rehearing en banc, 537 F. 2d 957, cert. denied sub nom. Markert v. United States, 429 U. S. 999 (1976). Because the issue of application of the Clause to state legislatures (as distinguished from TRPA) is not presented here, I would not decide it with a passing fiat." }, { "docid": "9507602", "title": "", "text": "law privilege exists and under Federal Rule of Evidence 501 should be enforced as to some of the materials sought by the subpoenas. The district court relied upon a panel decision of the Court of Appeals for the Seventh Circuit in United States v. Craig (I), 528 F.2d 773 (7th Cir. 1976), which found a common law privilege existed in a factual situation quite similar to the one at bar. On rehearing in banc, a majority of the full court disagreed, reason ing that the privilege would be commensurate with official immunity and since it did not extend to criminal liability, there could be no privilege. United States v. Craig (II), 537 F.2d 957 (1976), cert. denied sub nom. Markert v. United States, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796 (1976). Federal Rule of Evidence 501 provides that a privilege “shall be governed by the principles of common law as they may be interpreted by the courts of the United States in the light of reason and experience.” This rule applies in criminal as well as civil proceedings. In Craig (I), supra, the court traced the history of federal evidentiary law in criminal cases culminating with the enactment of Rule 501 after spirited congressional action. We agree with the reasoning of the panel majority which found that principles of common law in light of reason and experience dictate the recognition of a federal common law legislative privilege to be applied in federal criminal prosecutions. We are unable to accept the position adopted by the majority of the court in banc in Craig (II), supra. The public policy which led to inclusion of the Speech or Debate Clause in the Constitution is a strong one with deep historical roots. In Tenney v. Brandhove, 341 U.S. at 373, 71 S.Ct. at 786, the Court wrote: “The reason for the privilege is clear. It was well summarized by James Wilson, an influential member of the Committee of Detail which was responsible for the provision in the Federal Constitution. ‘In order to enable and encourage a representative of the public to discharge" }, { "docid": "856101", "title": "", "text": "Circuit Judge, dissenting. The Speech or Debate privilege for state legislators provided in the Constitution of the State of Tennessee is relevant only where state law is applicable, and affords no protection to state legislators who are being prosecuted in a federal court for committing a federal crime. In a federal prosecution the existence of a privilege of a witness is to be determined by the federal law of evidence. United States v. Craig, 537 F.2d 957, 958 (7th Cir. en banc, 1976), cert. denied sub nom., Market v. United States, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796 (1976). The Speech or Debate privilege provided in the Constitution of the United States applies only to Congressmen, and not to state legislators. United States v. DiCarlo, 565 F.2d 802 (1st Cir. 1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978). There is no federal common law speech or debate privilege protecting state legislators who commit federal crimes. United States v. DiCarlo, supra; United States v. Craig, supra. It is submitted that at this late date the federal courts ought not to innovate and create a new privilege for the protection of state legislators who violate the criminal laws of the United States. The relevant and material evidence of all of their acts in committing federal crimes should be admitted in evidence, including legislative acts and motivations therefore, which ought not to be suppressed. It is not unreasonable to believe that public confidence in the administration of justice in the federal courts will be undermined if state legislators are permitted to violate, with impunity, the criminal statutes of the United States because of a court-created special privilege in their favor, but not in favor of any other person, which privilege results in the suppression of relevant and material evidence of the criminal conduct of the state legislators. I Under Rule 26 of the Federal Rules of Criminal Procedure the admissibility of a witness’ testimony is governed by Acts of Congress, the Federal Rules of Evidence, or other rules adopted by the Supreme Court. Rule 501 of" }, { "docid": "9507601", "title": "", "text": "grant of powers to require immunization of legislative members from enforcement of federal criminal statutes. There is no tradition in this country to grant a broad immunity from criminal prosecution to members of Congress, United States v. Brewster, 408 U.S. at 522 n.16, 92 S.Ct. 2531; see Yale Note, supra, and we find no justification for a contrary policy applicable to state legislators. The plurality opinion in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), points out that congressional power to legislate under the Commerce Clause has some limitations when it impinges upon a state’s exercise of its traditional governmental functions. The anti-racketeering criminal statutes may rest upon a Commerce Clause foundation, but we do not perceive a substantial interference with state functions in the context of this case. Nor indeed would National League of Cities v. Usery, supra, apply to the charges arising under the mail fraud or tax evasion allegations. That, however, does not end the matter. The district court determined that a federal common law privilege exists and under Federal Rule of Evidence 501 should be enforced as to some of the materials sought by the subpoenas. The district court relied upon a panel decision of the Court of Appeals for the Seventh Circuit in United States v. Craig (I), 528 F.2d 773 (7th Cir. 1976), which found a common law privilege existed in a factual situation quite similar to the one at bar. On rehearing in banc, a majority of the full court disagreed, reason ing that the privilege would be commensurate with official immunity and since it did not extend to criminal liability, there could be no privilege. United States v. Craig (II), 537 F.2d 957 (1976), cert. denied sub nom. Markert v. United States, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796 (1976). Federal Rule of Evidence 501 provides that a privilege “shall be governed by the principles of common law as they may be interpreted by the courts of the United States in the light of reason and experience.” This rule applies in criminal" }, { "docid": "5481736", "title": "", "text": "It should be noted that the Third Circuit already has held that it was not an abuse of discretion to hold that the grand jury’s investigative interests outweigh a similar .state “comity” concern. Matter of Grand Jury Impaneled January 21, 1975, 541 F.2d 373, 377-378 (3d Cir. 1976). Our examination of the documents submitted to the district court in camera satisfies us as to the relevancy and materiality of the information sought. Orders affirmed. . There the court recognized only a federal common law privilege of state legislators, in accord with United States v. Craig 1, 528 F.2d 773 (7th Cir. 1976), but rejected in United States v. Craig II, 537 F.2d 957 (7th Cir. 1976) (en banc), certiorari denied sub nom. Markert v. United States, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796. . Quoting Fry v. United States, 421 U.S. 542, 547 n. 7, 95 S.Ct. 1792, 44 L.Ed.2d 363. . If any records whose disclosure is prohibited by Section 11 of the Illinois State Records Act (Ill.Rev.Stats. (1977) ch. 116 §§ 43.4 et seq., 43.14) are included in the records subpoenaed, we agree with Judge Curtin that the Supremacy Clause requires their disclosure to the grand jury unless the materials are otherwise privileged. 382 F.Supp. 1205. This requirement is particularly justifiable in light of Section ll’s explicit recognition, similar to the New York statute, that the restriction against disclosure is not absolute. Section 11 provides: “All records made or received by or under the authority of or coming into the custody, control or possession of public officials of this State in the course of their public duties are the property of the State and shall not be mutilated, destroyed, transferred, removed or otherwise damaged or disposed of, in whole or in part, except as provided by law.\" (111. Rev.Stats. (1977) ch. 116, § 43.14) (emphasis added). . Rule 501 of the Federal Rules of Evidence provides: “Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the" }, { "docid": "856084", "title": "", "text": "the Clause is to “prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary, United States v. Johnson, 383 U.S. 169, 181, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966),” Gravel v. United States, supra, 408 U.S. at 617, 92 S.Ct. at 2623. That role is not the sole function of the Clause, however, and English history does not totally define the reach of the Clause. Rather, it “must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government . . . .” United States v. Brewster, supra, at 508,,, 92 S.Ct. at 2535. Thus we have long held that, when it applies, the Clause provides protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch. Kilbourn v. Thompson, supra ; Tenney v. Brandhove, supra ; Doe v. McMillan [412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912] supra; Dombrowski v. Eastland [387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577] supra. Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 502-03, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324 (1975). See also Doe v. McMillan, 412 U.S. 306, 311, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Dombrowski v. Eastland, 387 U.S. 82, 84, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967). By citing these Supreme Court cases, we do not suggest that any one of them supplies precisely controlling law as to our present case. The Courts of Appeals do supply well-argued opinions on both sides of the general question we confront here: United States v. Craig, 528 F.2d 773 (7th Cir.), cert. denied, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796 (1976) [Craig I]; United States v. Craig, 537 F.2d 957 (7th Cir.) (en banc) [Craig II], cert. denied sub nom. Markert v. United States, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 609 (1976); United States v. DiCarlo, 565 F.2d 802 (1st Cir. 1977); In re Grand Jury Proceedings, 563 F.2d 577 (3d Cir. 1977). While we respect the views of the" }, { "docid": "13005292", "title": "", "text": "the statement. State-created privileges are not controlling in federal criminal cases except to the extent they reflect “the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience,” Fed.R.Evid. 501. E. g., United States v. Craig, 7 Cir., 528 F.2d 773, 776 (majority), 781 (Tone, J., concurring on point), aff’d en banc per curiam on panel concurrence, 537 F.2d 957 (7th Cir.), cert. denied, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 609 (1976). To the extent § 537 does create a privilege under New York law, an issue we need not decide, it is one unknown to the common law. In view of the strong federal policy favoring admissibility in criminal cases, see, e. g., United States v. Nixon, 418 U.S. 683, 708-13 & n. 18, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), the district court properly held the statement admissible. See United States v. DiCarlo, 565 F.2d 802, 806 (1st Cir. 1977), cert. de nied, 435 U.S. 924, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978); United States v. Schoenheinz, 548 F.2d 1389 (9th Cir. 1977) (per curiam); In re Grand Jury, 541 F.2d 373, 378-83 (3d Cir. 1976); Craig, supra. We have carefully considered appellant’s remaining contentions and find them to be without merit. The judgment is affirmed. . Securities Exchange Act of 1934 § 2, 15 U.S.C. § 78b. . Four of the transactions were in fact tender offers and one was a merger. The record is unclear which, if any, of the takeover bids were “hostile” in the sense that they were opposed by the target’s management. The parties have not treated either distinction as significant. . Purchases Target Offeror Shares Date Date Sold Profit USM Emhart 300 9/ 5/75 9/ 9/75 $ 1,019.11 Riviana Foods Colgate-2/ 5/76 to 2/26/76 to (Merger) Palmolive 2300 2/10/76 3/16/76 $ 8,948.55 FoodTown Delhaize 10/21/76 to Stores Freres 1100 10/11/76 12/ 1/76 $ 2,990.30 Booth Times- Newspapers Mirror 100 10/21/76 10/22/76 $ 914.56 Sprague Electric General Cable" }, { "docid": "12632444", "title": "", "text": "2622; Eilberg, 587 F.2d at 596. Both prongs of this evidentiary privilege have two crucial features. First, in keeping with the broad scope of Congressional immunity, the evidentiary privilege applies broadly to evidence or testimony about all “acts that occur in the regular course of the legislative process.” Brewster, 408 U.S. at 525, 92 S.Ct. at 2544. It therefore applies to activity taken in the course of legislative factfinding. Eastland, 421 U.S. at 504-05, 95 S.Ct. at 1822 (1975); see also Government of the Virgin Islands v. Lee, 775 F.2d 514, 521 (3d Cir.1985). Second, the speech or debate privilege is “absolute;” hence, it cannot be overcome by any countervailing interest no matter how strong. Eastland, 421 U.S. at 509-510 n. 16, 95 S.Ct. at 1824 n. 16. For many years, courts of appeals differed over the recognition of a speech or debate privilege for state legislators. Some courts held that because the evidentiary privilege for Congressmen exists primarily to protect Congressional immunity, a comparable evidentiary privilege for state legislators, who lack this immunity, made little sense. See, e.g., United States v. Craig, 537 F.2d 957 (7th Cir.) (en banc), cert. denied, 429 U.S. 999 (1976); United States v. DiCarlo, 565 F.2d 802, 807 (1st Cir.1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978). In contrast, a panel of this court recognized the privilege because of the historically accepted view that “a legislature will function better in the public interest with the protection than without it.” In re Grand Jury Proceedings (Cianfrani), 563 F.2d 577, 583 (3d Cir.1977). This conflict between the circuits was resolved by the Supreme Court in United States v. Gillock, 445 U.S. 360, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980). In Gillock, the Supreme Court considered whether a common law speech or debate privilege barred federal prosecutors from introducing evidence of a Tennessee state representative’s support for particular legislation in a prosecution against the representative for bribery. Chief Justice Burger’s decision for the court separated the purposes of the speech or debate privilege into “[t]wo interrelated rationales ...: first, the need to" }, { "docid": "12632445", "title": "", "text": "little sense. See, e.g., United States v. Craig, 537 F.2d 957 (7th Cir.) (en banc), cert. denied, 429 U.S. 999 (1976); United States v. DiCarlo, 565 F.2d 802, 807 (1st Cir.1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978). In contrast, a panel of this court recognized the privilege because of the historically accepted view that “a legislature will function better in the public interest with the protection than without it.” In re Grand Jury Proceedings (Cianfrani), 563 F.2d 577, 583 (3d Cir.1977). This conflict between the circuits was resolved by the Supreme Court in United States v. Gillock, 445 U.S. 360, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980). In Gillock, the Supreme Court considered whether a common law speech or debate privilege barred federal prosecutors from introducing evidence of a Tennessee state representative’s support for particular legislation in a prosecution against the representative for bribery. Chief Justice Burger’s decision for the court separated the purposes of the speech or debate privilege into “[t]wo interrelated rationales ...: first, the need to avoid intrusion by the Executive or Judiciary into the affairs of a coequal branch, and second, the desire to protect legislative independence.” 445 U.S. at 369, 100 S.Ct. at 1191. The interest in preventing intrusion, the Court held, provides no support for a privilege for state legislators in federal cases because the Federal Government has supremacy over state legislatures in areas where the Constitution grants its power to act. Although the Court noted that interests of comity and federalism “command careful consideration,” 445 U.S. at 373, 100 S.Ct. at 1193-94 it held that “federal interference in the state legislative process is not on the same constitutional footing with the interference of one branch of the Federal Government in the affairs of a coequal branch,” 445 U.S. at 370, 100 S.Ct. at 1192 (citations omitted), and could not justify the privilege requested in that case. Turning to the second rationale, the interests in legislative independence, the Court recognized that “denial of a privilege to a state legislator may have some minimal impact on the exercise of" }, { "docid": "856085", "title": "", "text": "L.Ed.2d 577] supra. Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 502-03, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324 (1975). See also Doe v. McMillan, 412 U.S. 306, 311, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Dombrowski v. Eastland, 387 U.S. 82, 84, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967). By citing these Supreme Court cases, we do not suggest that any one of them supplies precisely controlling law as to our present case. The Courts of Appeals do supply well-argued opinions on both sides of the general question we confront here: United States v. Craig, 528 F.2d 773 (7th Cir.), cert. denied, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796 (1976) [Craig I]; United States v. Craig, 537 F.2d 957 (7th Cir.) (en banc) [Craig II], cert. denied sub nom. Markert v. United States, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 609 (1976); United States v. DiCarlo, 565 F.2d 802 (1st Cir. 1977); In re Grand Jury Proceedings, 563 F.2d 577 (3d Cir. 1977). While we respect the views of the judges in the Seventh and First Circuits who have rejected the existence of a common law speech or debate privilege, we feel, as did the Seventh Circuit dissenters and the Third Circuit majority, that the long history and the felt need for protection of legislative speech or debate and the repeated and strong recognition of that history in the cases we have cited from the Supreme Court, fully justify our affirming Chief Judge Brown in his protection of the privilege in this case. We should also comment upon the government’s argument in terrorem that for the federal courts to recognize the speech or debate privilege for this Tennessee State Senator would open the door to similar claims on behalf of members of lesser legislative bodies like city councils and county boards. This opinion, however, affords no basis for such an extension. Nor will it until and unless a history of “reason and experience” within the meaning of Rule 501 can be cited, which includes recognition of a speech or debate immunity or privilege for city" }, { "docid": "856105", "title": "", "text": "panel of the Seventh Circuit held that a state legislator was entitled to a federal common law speech or debate privilege in a federal criminal prosecution, but that he had waived such privilege. On rehearing en banc, United States v. Craig, 537 F.2d 957 (7th Cir.), cert. denied sub nom., Markert v. United States, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796 (1976), a majority of the en banc court, adopting the opinion of concurring panel member Judge Tone, held that no such privilege exists, and reversed the order of the District Court suppressing evidence of the defendant’s legislative acts and legislative motivations, and remanded with instructions to deny the motion to suppress. Similarly, the First Circuit in United States v. DiCarlo, 565 F.2d 802 (1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978), in affirming the convic tion of two state legislators for violations of the Hobbs Act and Travel Act, held that the Speech or Debate Clause in the Federal Constitution does not apply, nor purport to apply, to state legislators, and that the federal common law recognizes no speech or debate privilege applicable in a federal criminal prosecution of a state legislator. The only other Court to consider the matter is the Third Circuit in In re Grand Jury Proceedings, 563 F.2d 577 (1977). There the Court, in dictum, recognized the existence of the privilege, rejected the decision of the en banc court in United States v. Craig, supra, and instead, followed the reasoning of the overruled panel majority. Gibbons, Circuit Judge, concurred in the result. In Judge Gibbons’ opinion he stated that federal criminal law is as fully applicable to state legislators as it is to any other resident of the United States. He disagreed with the majority’s dictum that there is some sort of federal common law evidentia-ry privilege which permits state legislators to decline to testify about their legislative acts or motivations for those acts. We should follow the decisions of the en banc court in United States v. Craig, supra, and the First Circuit in United States v." }, { "docid": "856100", "title": "", "text": "of Confederation provided: “freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress. . . .” . Other counts charged Gillock with violating 18 U.S.C. §§ 1952 and 1962 (1976). See Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881) (voting for a resolution); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (harassment of witness by state legislator during a legislative hearing; not a Speech or Debate Clause case); United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966) (making a speech on House floor); Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967) (subpoenaing records for committee hearing); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (voting for a resolution). In Coffin v. Coffin, 4 Mass. 1 (1808), the state equivalent of the Speech or Debate Clause was held to be inapplicable to a legislator who was acting outside of his official duties. WEICK, Circuit Judge, dissenting. The Speech or Debate privilege for state legislators provided in the Constitution of the State of Tennessee is relevant only where state law is applicable, and affords no protection to state legislators who are being prosecuted in a federal court for committing a federal crime. In a federal prosecution the existence of a privilege of a witness is to be determined by the federal law of evidence. United States v. Craig, 537 F.2d 957, 958 (7th Cir. en banc, 1976), cert. denied sub nom., Market v. United States, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796 (1976). The Speech or Debate privilege provided in the Constitution of the United States applies only to Congressmen, and not to state legislators. United States v. DiCarlo, 565 F.2d 802 (1st Cir. 1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978). There is no federal common law speech or debate privilege protecting state legislators who commit federal crimes. United States v. DiCarlo, supra; United States v. Craig, supra. It is submitted" }, { "docid": "15548640", "title": "", "text": "cover letter, and telephoned Workman insisting that he also destroy his copy of the letter. After cashing the check at a hotel in Springfield, Steigberg placed the money in an envelope. On the outside of the envelope she wrote “Robert Craig, personal.” Steigberg took the envelope to Craig’s office in the State Capitol, but found that Craig had departed for home. Craig’s secretary, Sherron Ackley, indicated that she would be flying to Craig’s home with some other materials and would take the envelope for Craig with her. Steigberg left the envelope with Ackley. Some time later Pappas telephoned Craig and asked if they had received the money from the rental car bill. Craig answered affirmatively, and said he’d mail Pappas his share. Two or three days later, Pappas received $600 in cash in the mail. House Bill 2025 was tabled during the following Spring Session of the General Assembly. This prosecution has resulted in two previous decisions by this court. United States v. Craig, 528 F.2d 773 (7th Cir. 1976) (Craig I), and the en banc decision on rehearing reported at 537 F.2d 957 (7th Cir. 1976), cert. denied sub nom. Markert v. United States, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796 (1976) (Craig II), dealt with an asserted testimonial privilege of a state legislator in the context of a federal criminal prosecution. In this appeal defendants contend that Craig II should be reexamined, and that the district court’s refusal to dismiss the indictment on the ground that Congress did not intend the federal criminal statutes involved in this case to be applicable to state legislators should be reversed. We recently rejected an identical contention in United States v. Craig, 573 F.2d 455, pp. 489-491 (7th Cir. 1977), a case involving the same appellant Craig as this case, but based on a different prosecution. We also reject the contention here. See also: In Re Grand Jury Proceedings, 563 F.2d 577, 582 (3rd Cir. 1977). With respect to both counts of the indictment, defendants contend that there is insufficient proof. As to Count One, charging a violation of the" }, { "docid": "6658886", "title": "", "text": "entry occurred on September 21, 1979. It is from this modified order that the plaintiff-appellee has cross-appealed. We need not at this time reach the issue whether the district court’s order is too broad or not broad enough in its scope because we hold that in the circumstances of this case, notions of comity between the state and federal courts require that the plaintiffs first seek disclosure in the state court with supervisory powers over the grand jury. We turn initially to the State’s claim to secrecy of the materials. The State of Illinois preserves the secrecy of its grand jury by statute. See Ill.Rev.Stat. ch. 38, § 112-6. Of course, because the plaintiffs’ claims arise under federal law, the •privileged nature of these materials under Illinois law is not controlling. Rather, federal common law is the source of any privilege. Fed.R.Evid. 501; In re Grand Jury Impaneled January 21, 1975, 541 F.2d 373, 378 (3d Cir. 1976); United States v. Craig, 528 F.2d 773, 781 (7th Cir. 1976) (Tone, J., concurring), adopted en banc, 537 F.2d 957 (7th Cir. 1976) (per curiam), cert. denied, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 609; Kerr v. United States District Court, 511 F.2d 192, 197 (9th Cir. 1975), aff’d, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); Carr v. Monroe Manufacturing Co., 431 F.2d 384, 387-88 (5th Cir. 1970), cert. denied, 400 U.S. 1000, 91 S.Ct. 456, 27 L.Ed.2d 451 (1971). That the federal common law, as interpreted in light of reason and experience, accords at least a qualified privilege to the records of state grand jury proceedings, is subject to little question. “[A] strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy.” Lora v. Board of Education, 74 F.R.D. 565, 576 (E.D.N.Y.1977) (quoting United States v. King, 73 F.R.D. 103, 105 (E.D.N.Y.1975)). In Illinois, grand jury proceedings are surrounded in secrecy to prevent the escape of those" }, { "docid": "5481735", "title": "", "text": "used. The argument that the Act should have been used is therefore not the accepted argument that the subpoena places an unduly oppressive burden on the appellant but rather essentially is a claim that using a subpoena instead of the Act is not the most sensitive manner of proceeding and that it therefore is inconsistent with some penumbra of “Our Federalism.” While it may have been more seemly for the.United States Attorney to seek to use the State Records Act before resorting to a subpoena, given the potential problems with compliance under the Act, the inapplicability of the Act to many of the documents sought, and the necessity that some sensitivities be implicated in almost any grand jury investigation (compare United States v. McGrady, 508 F.2d 13, 18 (8th Cir. 1974), certiorari denied, 420 U.S. 979, 95 S.Ct. 1408, 43 L.Ed.2d 661), we cannot say that it was an abuse of discretion not to quash the subpoenas on this ground. See United States v. Nixon, 418 U.S. 683, 702, 94 S.Ct. 3090, 41 L.Ed.2d 1039. It should be noted that the Third Circuit already has held that it was not an abuse of discretion to hold that the grand jury’s investigative interests outweigh a similar .state “comity” concern. Matter of Grand Jury Impaneled January 21, 1975, 541 F.2d 373, 377-378 (3d Cir. 1976). Our examination of the documents submitted to the district court in camera satisfies us as to the relevancy and materiality of the information sought. Orders affirmed. . There the court recognized only a federal common law privilege of state legislators, in accord with United States v. Craig 1, 528 F.2d 773 (7th Cir. 1976), but rejected in United States v. Craig II, 537 F.2d 957 (7th Cir. 1976) (en banc), certiorari denied sub nom. Markert v. United States, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796. . Quoting Fry v. United States, 421 U.S. 542, 547 n. 7, 95 S.Ct. 1792, 44 L.Ed.2d 363. . If any records whose disclosure is prohibited by Section 11 of the Illinois State Records Act (Ill.Rev.Stats. (1977) ch. 116 §§" }, { "docid": "17668297", "title": "", "text": "United States to vindicate the authority of a federal court. It attacked an “obvious” pattern of “delay, evasion, obstruction, defiance and reprisal.” That holding is in no way inconsistent with our holding today. We therefore hold that the defendant members of the New York State Legislature in the present case are immunized from suit for injunctive relief under 42 U.S.C. § 1983, sought against enforcement of their subpoenas duces tecum which were issued in the course of a fully-authorized, legitimate investigation into child pornography and the involvement of organized crime in the production and distribution of sexually-oriented material. The denial of preliminary relief is affirmed. . Judge Gagliardi’s order speaks only of defendant members of the Select Committee, but obviously applies to the other defendants as well. Those defendants are the Mayor of New York, one of his assistants, and the city and borough buildings commissioners. Since none of these officials has the power to enforce the subpoenas, see New York Civil Practice Laws and Rules § 2308(b), it was proper to deny the relief sought against them. . “[F]or any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” U.S. Const, art. I, § 6, cl. 1. . The federal Speech or Debate Clause does not itself protect state legislators. Lake Country Estates v. Tahoe Planning Agency, 440 U.S. 391, 404, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). . A number of courts have recently held that there is no common law immunity from criminal prosecution. See United States v. Gillock, 587 F.2d 284, 296 (6th Cir. 1978), cert. granted, 441 U.S. 942, 99 S.Ct. 2159, 60 L.Ed.2d 1043 (1979); United States v. DiCarlo, 565 F.2d 802 (1st Cir. 1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978); In re Grand Jury Proceedings, 563 F.2d 577, 582-83 (3d Cir. 1977); United States v. Craig, 537 F.2d 957 (7th Cir.), cert. denied sub nom. Markert v. United States, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 609 (1976). . Various degrees of immunity under the common law have" }, { "docid": "15548641", "title": "", "text": "banc decision on rehearing reported at 537 F.2d 957 (7th Cir. 1976), cert. denied sub nom. Markert v. United States, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796 (1976) (Craig II), dealt with an asserted testimonial privilege of a state legislator in the context of a federal criminal prosecution. In this appeal defendants contend that Craig II should be reexamined, and that the district court’s refusal to dismiss the indictment on the ground that Congress did not intend the federal criminal statutes involved in this case to be applicable to state legislators should be reversed. We recently rejected an identical contention in United States v. Craig, 573 F.2d 455, pp. 489-491 (7th Cir. 1977), a case involving the same appellant Craig as this case, but based on a different prosecution. We also reject the contention here. See also: In Re Grand Jury Proceedings, 563 F.2d 577, 582 (3rd Cir. 1977). With respect to both counts of the indictment, defendants contend that there is insufficient proof. As to Count One, charging a violation of the Hobbs Act, (18 U.S.C. § 1951), defendants’ attack is three- pronged. First, noting that they were charged with conspiracy to obtain money unlawfully from companies belonging to CATRALA, defendants argue that under general conspiracy principles there was no evidence upon which to rest jurisdiction to conduct a trial on the charges in the Northern District of Illinois. Conspiracy is a substantive federal criminal offense. 18 U.S.C. § 371. Generally, proper venue for a prosecution of the substantive crime of conspiracy lies in the district where the agreement was entered into, Hyde v. Shine, 199 U.S. 62, 25 S.Ct. 760, 50 L.Ed. 90 (1905), or at the place where an overt act to effect the object of one of the conspirators was performed. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114 (1912). Pointing out that the evidence in this case showed neither an agreement among the defendants in the Northern District of Illinois, nor an overt act in furtherance of the conspiracy in that district, defendants argue that prosecution of a" }, { "docid": "17668298", "title": "", "text": "sought against them. . “[F]or any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” U.S. Const, art. I, § 6, cl. 1. . The federal Speech or Debate Clause does not itself protect state legislators. Lake Country Estates v. Tahoe Planning Agency, 440 U.S. 391, 404, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). . A number of courts have recently held that there is no common law immunity from criminal prosecution. See United States v. Gillock, 587 F.2d 284, 296 (6th Cir. 1978), cert. granted, 441 U.S. 942, 99 S.Ct. 2159, 60 L.Ed.2d 1043 (1979); United States v. DiCarlo, 565 F.2d 802 (1st Cir. 1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978); In re Grand Jury Proceedings, 563 F.2d 577, 582-83 (3d Cir. 1977); United States v. Craig, 537 F.2d 957 (7th Cir.), cert. denied sub nom. Markert v. United States, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 609 (1976). . Various degrees of immunity under the common law have been recognized by the Supreme Court for other government officials. See Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (federal executive officials); Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978) (prison administra tors); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (prosecutors); O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (superintendent of state hospital); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) (school board members); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (state executive officials); and Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (judges, policemen). . See Tenney v. Brandhove, 341 U.S. 367, 375 & n.5, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). New York’s Constitution states, “For any speech or debate in either house of the legislature, the members shall not be questioned in any other place,” art. 3, § 11, and New York’s courts have drawn" }, { "docid": "856104", "title": "", "text": "clear that under the last sentence of Rule 501 the state law of privilege is to be applied only in civil actions or proceedings where state law supplies the rule of decision. State law does not supply the rule of decision in a federal criminal prosecution. Certainly the present case is not a civil action or proceeding, but is a federal prosecution of a state senator for accepting bribes in violation of the Hobbs Act. Reliance by the District Judge and by the majority opinion here, on Rule 501 for a federal privilege to suppress evidence of the state senator’s acts in accepting bribes, is misplaced. No license to state legislators to accept bribes in violation of federal criminal statutes can be found in the federal common law, or in Rule 501. The two Federal Appellate Courts that have considered the specific problem presented by this appeal have denied the existence of the asserted privilege. In the first case to consider the question, United States v. Craig, 528 F.2d 773 (1976), a majority of a panel of the Seventh Circuit held that a state legislator was entitled to a federal common law speech or debate privilege in a federal criminal prosecution, but that he had waived such privilege. On rehearing en banc, United States v. Craig, 537 F.2d 957 (7th Cir.), cert. denied sub nom., Markert v. United States, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796 (1976), a majority of the en banc court, adopting the opinion of concurring panel member Judge Tone, held that no such privilege exists, and reversed the order of the District Court suppressing evidence of the defendant’s legislative acts and legislative motivations, and remanded with instructions to deny the motion to suppress. Similarly, the First Circuit in United States v. DiCarlo, 565 F.2d 802 (1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978), in affirming the convic tion of two state legislators for violations of the Hobbs Act and Travel Act, held that the Speech or Debate Clause in the Federal Constitution does not apply, nor purport to apply," }, { "docid": "8836109", "title": "", "text": "introduce the evidence that the district court believed to be prohibited by the extradition order to prove the existence of a conspiracy during a subsequent period. The district court’s orders, therefore, necessarily constitute evidentiary rulings that determine the manner in which such a crime may be proven. Section 3731 expressly affords jurisdiction in such an instance. Id. Accord, United States v. Battisti, 486 F.2d 961, 965-67 (6th Cir. 1973); see United States v. Craig, 528 F.2d 773, 774, cert. denied, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796, vacated and decided in banc without reference to this issue, 537 F.2d 957 (7th Cir.) (in banc), cert. denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 609 (1976). We have jurisdiction under 18 U.S.C. § 3731 to hear the Government’s appeal. B. The Government argues that it should be permitted to introduce the private bills themselves and correspondence and conversations referring to defendant’s legislative acts in order to prove the purpose of defendant in accepting the payments at issue. In support of this contention, the Government argues that while the decision in Brewster forbids inquiry into the legislative process, it allows inquiry into the purpose for taking a bribe, even though that purpose is related to legislative acts. Since the Government seeks to introduce evidence of defendant’s legislative acts solely to prove defendant’s purpose in taking the bribe, and not in order to inquire into the legislative process itself, it believes Brewster permits the introduction of such evidence in this case. Further, the Government argues that correspondence and conversations of the defendant are not themselves legislative acts, and so are not protected by the Speech or Debate privilege. Accordingly, the Government believes it may use such correspondence and conversation to prove the defendant’s purpose in accepting the bribes, notwithstanding that they contain references to past legislative acts. We agree with the district court that the Government misconstrues the meaning of the Speech or Debate Clause as set out in Brewster. It is true that Brewster did not foreclose the showing of the purpose in taking the bribe. But the Supreme" } ]

[ { "docid": "16222033", "title": "", "text": "denied, 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 118 (1987). The court explained that “lasciviousness is not a characteristic of the child photographed but of the exhibition which the photographer sets up for an audience that consists of himself or like minded pedophiles.” Id. The court did not, however, clarify the factors to be applied, and proceeded to affirm the district court. The only other circuit court which appears to have considered the issue recognized the Dost factors, but did not apply them as it was unnecessary in that case to decide the “lasciviousness” issue. See United States v. Nolan, 818 F.2d 1015, 1019 n. 5 (1st Cir.1987) (listing the six Dost factors). We adopt the Dost factors as a means of determining whether a genital exhibition is “lascivious.” We do so, of course, not out of any precedential obligation, but instead because the Dost factors provide specific, sensible meaning to the term “lascivious,” a term which is less than crystal clear. The district court in the instant case instructed the jury to consider each of the Dost factors, and cautioned the jury that no single factor should be given undue weight and that a depiction need not involve all the factors in order to be “lascivious.” App. at 703-04. We agree with the district court’s basic application of the Dost factors. All six factors should be presented to the jury for consideration. Although more than one factor must be present in order to establish “lasciviousness,” all six factors need not' be present. The salient portions of Feltman’s testimony regarding the contents of the picture at issue are as follows: Q. ... Please explain to the jury as accurately as you can the description of the, of the depictions on those pages. A. Okay. I was looking at Beach Boys number two. The magazine was opened like this. You could see there was two photographs on each page. Like a left page and a right page. Now these pictures were all of the same boy. This boy was approximately 14, 15 years old. He was fully nude. He was" } ]

[ { "docid": "23239078", "title": "", "text": "cause, “[i]f an image of a minor displays the minor’s naked genital area ... [,] unless there are strong indicators that [the image] is not lascivious.” Id. at 1086-87. Although we appreciate the district court’s careful analysis and critique of Dost, we do not think it necessary to adopt a new test or to deny the utility of Dost in the context of this case. The Dost factors can be a starting point for judges to use in determining whether a particular image is likely “so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur.” Wiegand, 812 F.2d at 1244. But the factors are neither exclusive nor conclusive. Dost itself acknowledged that it did not seek to offer “a comprehensive definition of ... lasciviousness,” because a determination of lasciviousness “ha[s] to be made based on the overall content of the visual depiction.” 636 F.Supp. at 832. The factors are merely “general principles as guides for analysis.” Id. For instance, we have already recognized that, in some instances, the factors may be “over generous” to defendants. Wiegand, 812 F.2d at 1244; see also United States v. Amirault, 173 F.3d 28, 32 (1st Cir.1999) (“We believe that the Dost factors are generally relevant and provide some guidance in evaluating whether the display in question is lascivious. We emphasize, however, that these factors are neither comprehensive nor necessarily applicable in every situation. Although Dost provides some specific, workable criteria, there may be other factors that are equally if not more important in determining whether a photograph contains a lascivious exhibition. The inquiry will always be case-specific.”). Ultimately, probable cause is a fluid and nontechnical conception not readily suscep-tibie to multifactor tests or rebuttable presumptions. See Maryland v. Pringle, 540 U.S. 366, 370-71, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (“[T]he probable-cause standard is a ... nontechnical conception .... [and] a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.... [It] is incapable of precise definition or quantification .... ”" }, { "docid": "22818095", "title": "", "text": "interpret the statutory term. Doing so, we conclude that there was no error either as to fact or law. The standard employed by the district court was over-generous to the defendant in implying as to the 17-year-old girl that the pictures would not be lascivious unless they showed sexual activity or willingness to engage in it. The offense defined by the statute is depiction of a “lascivious exhibition of the genitals.” Plainly the pictures were an exhibition. The exhibition was of the genitals. It was a lascivious exhibition because the photographer arrayed it to suit his peculiar lust. Each of the pictures featured the child photographed as a sexual object. The district court noted the unlikelihood of the 10-year-old girl intending any sexual invitation by her pose. “Lascivious” does have such a connotation when applied to the conduct of adults. In the context of the statute applied to the conduct of children, lasciviousness is not a characteristic of the child photographed but of the exhibition which the photographer sets up for an audience that consists of himself or like-minded pedophiles. The district court noted that the pose of the 10-year-old was “unnatural.” This adjective does not reflect an incorrect reading of the statute although the term goes beyond what is necessary to find the picture within the statutory definition. The picture of a child “engaged in sexually explicit conduct” within the meaning of 18 U.S.C. §§ 2251 and 2252 as defined by § 2255(2)(E) is a picture of a child’s sex organs displayed lasciviously — that is, so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur. The crime punished by the statutes against the sexual exploitation of children, however, does not consist in the cravings of the person posing the child or in the cravings of his audience. Private fantasies are not within the statute’s ambit. The crime is the offense against the child — the harm “to the physiological, emotional, and mental health” of the child, Ferber 458 U.S. at 758, 102 S.Ct. at 3855; the “psychological harm,” id. at 775, 102" }, { "docid": "8689008", "title": "", "text": "(which we describe in greater detail, infra) meets the definitions in subsections (A), (B), (C), or (D). The photograph thus depicts sexually explicit conduct only if it contains a “lascivious exhibition of the genitals or pubic area.” Congress did not expressly define “lascivious exhibition of the genitals or pubic area.” Both parties agree with the district court’s decision to consider the six factors articulated in United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986), aff'd sub nom., United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir.1987), in making its assessment. Those factors are (1) whether the genitals or pubic area are the focal point of the image; (2) whether the setting of the image is sexually suggestive (i.e., a location generally associated with sexual activity); (3) whether the child is depicted in an unnatural pose or inappropriate attire considering her age; (4) whether the child is fully or partially clothed, or nude; (5) whether the image suggests sexual coyness or willingness to engage in sexual activity; and (6) whether the image is intended or designed to elicit a sexual response in the viewer. See Dost, 636 F.Supp. at 832. These so-called “Dost factors” are not exhaustive: other factors may be relevant, depending upon the particular circumstances involved. See id. Despite the fact that the Ninth Circuit stated on appeal that the standard employed by the district court was “overgenerous to the defendant,” Wiegand, 812 F.2d at 1244, several other circuits have adopted the Dost factors, see United States v. Knox, 32 F.3d 733, 747 (3rd Cir.1994); United States v. Wolf, 890 F.2d 241, 244-46 (10th Cir.1989); United States v. Rubio, 834 F.2d 442, 448 (5th Cir.1987) (affirming use of factors without citing Dost). Furthermore, a panel of this court has made mention of the criteria in a footnote. See United States v. Nolan, 818 F.2d 1015, 1019, n. 5 (1st Cir.1987); accord United States v. Robinson, No. 95-10267- JLT, 1997 WL 136430, at *6-*7 (D.Mass. Mar. 7, 1997) (applying Dost factors and citing Nolan). We believe that the Dost factors are generally relevant and provide some guidance in evaluating" }, { "docid": "416439", "title": "", "text": "such conduct ... using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means.” 18 U.S.C. 2251(a). The term “sexually explicit conduct” as defined by 18 U.S.C. § 2256(2) includes five different categories of conduct: sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or “lascivious exhibition of the genitals or pubic area of any person.” Congress has not defined what constitutes a “lascivious exhibition.” Although this court has not had occasion to adopt a test for determining what constitutes a “lascivious exhibition,” this issue has been considered by several federal circuit courts. All of the federal courts to address this question have relied, at least in part, on a set of six factors developed by the United States District Court for the Southern District of California in United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.1987). The so-called “Dost factors” are: (1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area; (2) whether the setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. Id. at 832. In addition to these six factors, several of the federal circuit courts have recognized that “[although Dost provides some specific, workable criteria, there may be other factors that are equally if not more important in determining whether a photograph contains a lascivious exhibition.” United States v. Amirault, 173 F.3d 28, 32 (1st Cir.1999); see also United States v. Campbell, 81 Fed.Appx. 532, 536 (6th Cir. 2003); United States v. Knox, 32 F.3d 733, 747 (3d Cir.1994). These courts determine whether a particular photograph contains a" }, { "docid": "16222040", "title": "", "text": "subject was lying down with his knees “bent slightly upwards.” With regard to facial expression, the only testimony was that the subject’s eyes were closed. Finally, the pose and setting of the photograph appears to be as indicative of repose or sleep as of sexual readiness. Sixth, and finally, is the visual depiction intended or designed to elicit a sexual response in the viewer? In this case the surveillance tape of Villard and Feltman discussing the photograph while viewing it certainly could indicate to a reasonable fact-finder that the picture in fact elicited a sexual response in the viewers. Although it is tempting to judge the actual effect of the photographs on the viewer, we must focus instead on the intended effect on the viewer. We agree with the view expressed by the district court in this case: Child pornography is not created when the pedophile derives sexual enjoyment from an otherwise innocent photo. As the Ninth Circuit stated, “Private fantasies are not within the statute’s ambit.” [United States v. Wiegand,] 812 F.2d at 1245. When a picture does not constitute child pornography, even though it portrays nudity, it does not become child pornography because it is placed in the hands of a pedophile, or in a forum where pedophiles might enjoy it. Faloona v. Hustler Magazine, Inc., 607 F.Supp. 1341 (N.D.Tex.1985) (nude pictures of children did not constitute child pornography when published in “legitimate” Sex Atlas or in “raunchy” Hustler magazine, because they did not depict children engaged in sexual conduct). 700 F.Supp. at 812. We must, therefore, look at the photograph, rather than the viewer. If we were to conclude that the photographs were lascivious merely because Villard found them sexually arousing, we would be engaging in conclusory bootstrapping rather than the task at hand — a legal analysis of the sufficiency of the evidence of lasciviousness. We believe that the sixth Dost factor, rather than being a separate substantive inquiry about the photographs, is useful as another way of inquiring into whether any of the other five Dost factors are met. Out of the five substantive Dost" }, { "docid": "16222041", "title": "", "text": "When a picture does not constitute child pornography, even though it portrays nudity, it does not become child pornography because it is placed in the hands of a pedophile, or in a forum where pedophiles might enjoy it. Faloona v. Hustler Magazine, Inc., 607 F.Supp. 1341 (N.D.Tex.1985) (nude pictures of children did not constitute child pornography when published in “legitimate” Sex Atlas or in “raunchy” Hustler magazine, because they did not depict children engaged in sexual conduct). 700 F.Supp. at 812. We must, therefore, look at the photograph, rather than the viewer. If we were to conclude that the photographs were lascivious merely because Villard found them sexually arousing, we would be engaging in conclusory bootstrapping rather than the task at hand — a legal analysis of the sufficiency of the evidence of lasciviousness. We believe that the sixth Dost factor, rather than being a separate substantive inquiry about the photographs, is useful as another way of inquiring into whether any of the other five Dost factors are met. Out of the five substantive Dost factors for determining lasciviousness, we find that only two factors are present with any certainty — the setting of the photographs was a bed or mattress, a place commonly associated with sexual activity (the second factor), and the subject of the photographs was completely nude (the fourth factor). In addition, the subject’s genitals were visible and he displayed a partial erection. Without more detail and without evidence regarding the other Dost factors, however, this information about the photographs is simply not enough. We find the district court’s analysis quite incisive on the issue of the sufficiency of the evidence: The court’s concern is with the details which Mr. Feltman did not convey. For example, from what perspective was the individual photographed? Was it from above, or level with the camera? Was the subject lying on his side, back, or stomach? Was the camera positioned over his shoulder, behind his head, or squarely between his legs? Were the genitals in the foreground, or the background of the picture? Were they in strong light, subdued light, or" }, { "docid": "13565385", "title": "", "text": "took the photographs. [The defendant] was responsible for the mise-en-scene.’’). . Grimes, 244 F.3d at 381 (quoting United States v. Knox, 32 F.3d 733, 746 (3d Cir.1994)). PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring: While I agree with the panel opinion, I write separately to note my misgivings about excessive reliance on the judicially created Dost factors that continue to pull courts away from the statutory language of 18 U.S.C. § 2251. There are many reasons to be cautious of the Dost factors, several of which other courts have previously identified. As ju rists, we have “every reason to avoid importing unnecessary interpretive conundrums into a statute, especially where the statute employs terms that lay people are perfectly capable of understanding,” such as “lascivious.” The Dost factors are not definitionally equivalent to the statutory standard of “lascivious exhibition of the genitals,” but many courts have treated them as such, even requiring that a certain number of factors be present for pornography convictions. As a result, these factors often create more confusion than clarity. The sixth factor, which asks whether the visual depiction was intended to elicit a sexual response in the viewer, is especially troubling. Congress did not make production of child pornography turn on whether the maker or viewer of an image was sexually aroused, and this Dost factor encourages both judges and juries to improperly consider a non-statutory element. A pedophile may be aroused by photos of children at a bus stop wearing winter coats, but these are not pornographic. Conversely, a photographer may be guilty of child pornography even though he is not aroused by the photos he produces purely for financial gain. Regardless of whether the photographer was aroused by the images he produced, to qualify under § 2251, the images must show a minor being used to engage in sexually explicit conduct. Our court first used the Dost factors in United States v. Carroll In response to a request for rehearing en banc, the Carroll decision was altered by the panel, but the section citing the Dost factors was reinstated. In his original panel dissent, Judge" }, { "docid": "12267607", "title": "", "text": "activity.” Dost, 636 F.Supp. at 832. On direct appeal in Dost, the Ninth Circuit considered that inquiry “over-generous to the defendant in implying as to the 17-year-old girl that the pictures would not be lascivious unless they showed sexual activity or willingness to engage in it.” Wiegand, 812 F.2d at 1244. To that court, the factor looked the wrong way — “lasciviousness is not a characteristic of the child photographed but of the exhibition which the photographer sets up for an audience that consists of himself or likeminded pedophiles.” Id. The court implied that a simpler, more subjective test was called for: “the pictures were an exhibition,” and the “exhibition was of the genitals”; “[i]t was a lascivious exhibition because the photographer arrayed it to suit his peculiar lust.” Id. Several other courts have concurred in this critique. See, e.g., Frabizio, 459 F.3d at 89 (“The absence of a sexual come-on ... does not mean that an image is not lascivious .... Children do not characteristically have countenances inviting sexual activity, and the statute does not presume that they do.”); United States v. Wolf, 890 F.2d 241, 245 (10th Cir.1989) (“[T]he Ninth circuit clearly stated that to violate 18 U.S.C. § 2251 the photographer need not portray the victimized child as a temptress. We agree with the Ninth Circuit’s interpretation of the statutory language.”); Hill, 322 F.Supp.2d at 1086 (“Almost any facial expression — or lack thereof — could fairly be described as one of these.... Not much help here.”). Of course an innocent child can be coaxed to assume poses or expressions that bespeak sexual availability when viewed by certain adults, resulting in an image that “suggests sexual coyness or a willingness to engage in sexual activity” regardless of the child’s own characteristics. The sixth Dost factor has also been criticized. It asks “whether the visual depiction is intended or designed to elicit a sexual response in the viewer.” Dost, 636 F.Supp. at 832. See, e.g., Doe v. Chamberlin, 299 F.3d 192, 196 (3d Cir.2002) (“The final Dost factor simply puts again the underlying question: Is the exhibition lascivious?”);" }, { "docid": "416438", "title": "", "text": "evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 324 (C.M.A.1987) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Legal sufficiency is a question of law that we review de novo. Hays, 62 M.J. at 162. Roderick argues that the photographs of his daughters did not depict “sexually explicit conduct” as is required for a conviction under 18 U.S.C. § 2251(a) and are therefore legally insufficient. Roderick further argues that since the evidence was legally insufficient to support the charge of “sexually explicit conduct” under 18 U.S.C. § 2251(a), it was also legally insufficient to support the specifications of taking indecent liberties with a child because the same photographs served as the basis for both charges. Section 2251(a) prohibits any person from “us[ing], persuading], inducing], enticing], or coercing] any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct ... using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means.” 18 U.S.C. 2251(a). The term “sexually explicit conduct” as defined by 18 U.S.C. § 2256(2) includes five different categories of conduct: sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or “lascivious exhibition of the genitals or pubic area of any person.” Congress has not defined what constitutes a “lascivious exhibition.” Although this court has not had occasion to adopt a test for determining what constitutes a “lascivious exhibition,” this issue has been considered by several federal circuit courts. All of the federal courts to address this question have relied, at least in part, on a set of six factors developed by the United States District Court for the Southern District of California in United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.1987). The so-called “Dost factors” are: (1) whether the focal point of the visual depiction is on the child’s genitalia or pubic" }, { "docid": "12267611", "title": "", "text": "thus logical for the Ninth Circuit to hold that the pictures were “a lascivious exhibition because the photographer arrayed it to suit his peculiar lust.” Wiegand, 812 F.2d at 1244. It is a point of distinction that the defendants in Ami-rault, Villard and Frabizio were charged with having possessed (or transported) child pornography; there was no allegation that they located the victims, arranged or posed the scenes, or otherwise produced the visual depiction. The sixth Dost factor is not easily adapted to a possession case. Similarly, the Dost factors are arguably of diminished utility for purposes of Fourth Amendment analysis. See Hill, 322 F.Supp.2d at 1086-87 (advocating for test dictating that “[i]f an image of a minor displays the minor’s naked genital area, there is probable cause to believe that the image is lascivious unless there are strong indicators that it is not lascivious” (footnote and emphasis omitted)). That concern is not implicated here. Notwithstanding valid criticisms and cautions about the Dost factors, we see no error in the jury charge given by the District Court. Congress chose the word “lascivious,” which has to do generally with sexual arousal. Although the statute is not unconstitutionally vague, see United States v. X-Citement Video, Inc., 513 U.S. 64, 78-79, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); United States v. Freeman, 808 F.2d 1290, 1292 (8th Cir.1987), jurors (and judges) need neutral references and considerations to avoid decisions based on individual values or the revulsion potentially raised in a child pornography prosecution. As a definition of the word “lascivious,” the Dost factors are imperfect and vulnerable to criticism. But they are not definitional-nor do they purport to be. Dost recommends that “the trier of fact should look to” the six enumerated factors, but noted that “others ... may be relevant in the particular case.” Dost, 636 F.Supp. at 832. And here, Judge Kravitz said that the jury “should consider” the factors — not that the factors determine the question. They are not mandatory, formulaic or exclusive. As factors, they mitigate the risk that jurors will react to raw images in a visceral way," }, { "docid": "10617285", "title": "", "text": "statute’s purpose of protecting the child”). Amirault’s commentary was on different issues, and it did not exclude from consideration any evidence that the subjects of the depictions were known child victims who were exploited in the process of making the photographs. In fact, Amirault explicitly observed as to the image under consideration that \"the circumstances of the photograph's creation are unknown.” Id. . The government had argued before the district court that testimony that a child was exploited in the process of creating an image provides objective evidence that the picture was taken for the purpose of child pornography and is thus evidence that a jury ought to be able to consider in determining whether a photograph is objectively lascivious. . The concurring opinion states that our position is incompatible with this court's prior decision in Amirault. To the contrary, our holding is not just consistent with, but takes as its starting point, Amirault’s holding that the Dost \"factors are neither comprehensive nor necessarily applicable in every situation.” 173 F.3d at 32. TORRUELLA, Circuit Judge, concurring in the judgment. I agree with the majority that the district court erred in excluding the three images from evidence. I write separately because I disagree with the majority’s analysis and also because the majority does not give due weight to circuit precedent. I first present my own analysis for excluding the three images and second note my disagreements with the majority’s analysis. I. Exclusion of the Exhibits Under Fed.R.Evid. 104(a) As ably described in the majority opinion, Congress has made it a crime to possess visual depictions of minors engaging in sexually explicit conduct. 18 U.S.C. § 2252(a)(4)(B). The term “sexually explicit conduct” includes the “lascivious exhibition of the genitals or pubic area.” Id. § 2256(2)(A). Congress did not further define the term “lascivious.” Finding that more guidance was necessary, the district court in United States v. Dost enumerated a list of factors to consider in determining whether a picture lasciviously exhibits the genitals or pubic area. 636 F.Supp. 828, 832 (S.D.Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239, 1244" }, { "docid": "10617286", "title": "", "text": "concurring in the judgment. I agree with the majority that the district court erred in excluding the three images from evidence. I write separately because I disagree with the majority’s analysis and also because the majority does not give due weight to circuit precedent. I first present my own analysis for excluding the three images and second note my disagreements with the majority’s analysis. I. Exclusion of the Exhibits Under Fed.R.Evid. 104(a) As ably described in the majority opinion, Congress has made it a crime to possess visual depictions of minors engaging in sexually explicit conduct. 18 U.S.C. § 2252(a)(4)(B). The term “sexually explicit conduct” includes the “lascivious exhibition of the genitals or pubic area.” Id. § 2256(2)(A). Congress did not further define the term “lascivious.” Finding that more guidance was necessary, the district court in United States v. Dost enumerated a list of factors to consider in determining whether a picture lasciviously exhibits the genitals or pubic area. 636 F.Supp. 828, 832 (S.D.Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir.1987). Several circuits, including ours, have referred to the Dost factors in considering whether images lasciviously exhibit the genitals or pubic area. See United States v. Amirault, 173 F.3d 28, 31 (1st Cir.1999) (citing cases). While we found that the Dost factors were generally relevant and provided guidance, our embrace of them was only equivocal. Id. at 32. We found that the factors “are neither comprehensive nor necessarily applicable in every situation” and that “there may be other factors that are equally if not more important in determining whether a photograph contains a lascivious exhibition.” Id. Before considering whether a reasonable jury could find the three images lascivious, I wish to note several background principles relevant to our analysis. First, I believe that an important consideration, which was not directly addressed by Dost nor by the district court, is whether the production or existence of the picture is harmful to the depicted child. Clearly, the protection of children from sexual exploitation is “a government objective of surpassing importance.” New York v. Ferber, 458 U.S." }, { "docid": "6447675", "title": "", "text": "community standards.” Id. While the court could find no Hawaii cases discussing how to determine whether an image is lascivious, the court finds helpful the factors the Ninth Circuit often looks to in determining whether a particular visual depiction of a minor constitutes a “lascivious exhibition of the genitals or pubic area” in violation of federal law. These factors include: 1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area; 2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; 3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 4) whether the child is fully or partially clothed, or nude; 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. United States v. Overton, 573 F.3d 679, 686 (9th Cir.2009) (quoting United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.1987)). These “Dost” factors, as they are called, are “merely ‘a starting point’ for determining whether a particular image is ‘so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur.’ ” Id. (quoting United States v. Hill, 459 F.3d 966, 972 (9th Cir.2006)). Plaintiffs Exhibits 1-10 at 58 were found in Defendant’s Travel Pro bag and depict nude children. Applying the Dost factors, the court finds that at least Plaintiffs Exhibits 7, 10, and 58 are not child pornography. Exhibit 7 is a color photograph of a nude boy, apparently between the ages of 2 to 3. The boy is smiling at the camera, with one hand on his hip, and the other leaning against a door frame. The setting of the photograph is not sexually suggestive and the child’s pose, while jaunty, is not unnatural or suggestive. Given its content, this image does not appear to be intended" }, { "docid": "12267600", "title": "", "text": "Brian from the counts relating to his other victims. Lastly, Rivera challenges his sentence on constitutional grounds. I It is illegal to entice or coerce a minor to engage in “sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” 18 U.S.C. § 2251(a). “[Sjexually explicit conduct” is defined to include the “lascivious exhibition of the genitals or pubic area of any person.” Id. § 2256(2)(A)(v). The term “lascivious” is not self-defining. See United States v. Villard, 885 F.2d 117, 121 (3d Cir.1989) (“Whatever the exact parameters of ‘lascivious exhibition,’ we find it less readily discernable than the other, more concrete types of sexually explicit conduct listed in section 2256(2).”); United States v. Hill, 322 F.Supp.2d 1081, 1084 (C.D.Cal.2004) (“Lasciviousness is an elusive concept, and courts have struggled to develop a test for identifying it.” (footnote omitted)). But see United States v. Frabizio, 459 F.3d 80, 85 (1st Cir.2006) (“The statutory standard needs no adornment.”). The dictionary definition is of little help in drawing lines. The leading case is United States v. Dost, 636 F.Supp. 828 (S.D.Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.1987). There, district judge Thompson enumerated six factors that “the trier of fact should look to ... among any others that may be relevant in the particular case.” Id. at 832. The “Dost factors” are: 1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area; 2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; 3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 4) whether the child is fully or partially clothed, or nude; 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. Id. Here, the District Court charged the jury as follows, using the Dost factors: The term lascivious exhibition means a" }, { "docid": "23239077", "title": "", "text": "in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. 636 F.Supp. 828, 832 (S.D.Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.1987); see also United States v. Brunette, 256 F.3d 14, 18 (1st Cir.2001) (adopting and applying Dost factors); United States v. Villard, 885 F.2d 117, 122 (3d Cir.1989) (same). The district court, analyzing each of these six factors, found Dost to be “not particularly helpful” in determining whether a given image is lascivious — generally or as applied to the images here. See Hill, 322 F.Supp.2d at 1086. Instead, the court fashioned a new test that would create a presumption of lasciviousness, and therefore probable cause, “[i]f an image of a minor displays the minor’s naked genital area ... [,] unless there are strong indicators that [the image] is not lascivious.” Id. at 1086-87. Although we appreciate the district court’s careful analysis and critique of Dost, we do not think it necessary to adopt a new test or to deny the utility of Dost in the context of this case. The Dost factors can be a starting point for judges to use in determining whether a particular image is likely “so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur.” Wiegand, 812 F.2d at 1244. But the factors are neither exclusive nor conclusive. Dost itself acknowledged that it did not seek to offer “a comprehensive definition of ... lasciviousness,” because a determination of lasciviousness “ha[s] to be made based on the overall content of the visual depiction.” 636 F.Supp. at 832. The factors are merely “general principles as guides for analysis.” Id. For instance, we have already recognized that, in some instances, the factors" }, { "docid": "10617270", "title": "", "text": "example, how many of the factors must be present in an image for it to qualify as “lascivious.” Compare, e.g., United States v. Wolf, 890 F.2d 241, 245 & n. 6 (10th Cir.1989) (“We do not hold that more than one Dost factor must be present .... ”), with United States v. Villard, 885 F.2d 117, 122 (3d Cir.1989) (“Although more than one factor must be present in order to establish ‘lasciviousness,’ all six factors need not be present.”). Another dispute is about what the specific factors mean. See, e.g., Amirault, 173 F.3d at 34 (cataloging disagreement about what the sixth Dost factor means). As one commentator observed, “the Dost test has produced a profoundly incoherent body of case law.” A. Adler, Inverting the First Amendment, 149 U. Pa. L.Rev. 921, 953 (2001). There is every reason to avoid importing unnecessary interpretive conundrums into a statute, especially where the statute employs terms that lay people are perfectly capable of understanding. Even more significantly, there is a risk that the Dost factors will be used to inappropriately limit the scope of the statutory definition. That is impermissible. We offer two examples in which such a risk has been raised. The first example is one that was noted by the Ninth Circuit when affirming one of the convictions in the Dost case. In United States v. Wiegand, 812 F.2d 1239, the Ninth Circuit noted that the Dost factors were “over-generous to the defendant.” Id. at 1244. Specifically, the court took issue with the fifth factor articulated by the district court: “whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity.” Dost, 636 F.Supp. at 832. The appellate court expressed disapproval at “[t]he standard employed by the district court[, which] ... implied] ... that the pictures would not be lascivious unless they showed sexual activity or willingness to engage in it.” Wiegand, 812 F.2d at 1244. Emphasizing that “[t]he offense defined by the statute is depiction of a ‘lascivious exhibition of the genitals,’ ” the appellate court held that it was enough that “the pictures were an exhibition,”" }, { "docid": "10617271", "title": "", "text": "inappropriately limit the scope of the statutory definition. That is impermissible. We offer two examples in which such a risk has been raised. The first example is one that was noted by the Ninth Circuit when affirming one of the convictions in the Dost case. In United States v. Wiegand, 812 F.2d 1239, the Ninth Circuit noted that the Dost factors were “over-generous to the defendant.” Id. at 1244. Specifically, the court took issue with the fifth factor articulated by the district court: “whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity.” Dost, 636 F.Supp. at 832. The appellate court expressed disapproval at “[t]he standard employed by the district court[, which] ... implied] ... that the pictures would not be lascivious unless they showed sexual activity or willingness to engage in it.” Wiegand, 812 F.2d at 1244. Emphasizing that “[t]he offense defined by the statute is depiction of a ‘lascivious exhibition of the genitals,’ ” the appellate court held that it was enough that “the pictures were an exhibition,” “[t]he exhibition was of the genitals,” and “[e]ach of the pictures featured the child photographed as a sexual object.” Id. It is obvious that if an image does depict a sexually alluring look from the minor, it will be easier to show that the image is lascivious. The absence of a sexual come-on, though, does not mean that an image is not lascivious, as Wiegand and other cases have noted. See, e.g., United States v. Knox, 32 F.3d 733, 747 (3d Cir.1994) (“Children posing for pornographic pictures may suffer dramatic harm regardless of whether they have an ‘adult’ look of sexual invitation or coyness on their face.”); Wolf, 890 F.2d at 247 (noting that “a sexually exploitative photograph of a child need not portray the victim in a pose that ‘depicts lust, wantonness, sexual coyness or other inappropriate precocity’ ”). Children do not characteristically have countenances inviting sexual activity, and the statute does not presume that they do. By suggesting that the child subject must exhibit sexual coyness in order for an image to be" }, { "docid": "12267608", "title": "", "text": "not presume that they do.”); United States v. Wolf, 890 F.2d 241, 245 (10th Cir.1989) (“[T]he Ninth circuit clearly stated that to violate 18 U.S.C. § 2251 the photographer need not portray the victimized child as a temptress. We agree with the Ninth Circuit’s interpretation of the statutory language.”); Hill, 322 F.Supp.2d at 1086 (“Almost any facial expression — or lack thereof — could fairly be described as one of these.... Not much help here.”). Of course an innocent child can be coaxed to assume poses or expressions that bespeak sexual availability when viewed by certain adults, resulting in an image that “suggests sexual coyness or a willingness to engage in sexual activity” regardless of the child’s own characteristics. The sixth Dost factor has also been criticized. It asks “whether the visual depiction is intended or designed to elicit a sexual response in the viewer.” Dost, 636 F.Supp. at 832. See, e.g., Doe v. Chamberlin, 299 F.3d 192, 196 (3d Cir.2002) (“The final Dost factor simply puts again the underlying question: Is the exhibition lascivious?”); Hill, 322 F.Supp.2d at 1086 (“This factor has no independent force.”). The First Circuit has labeled it “the most confusing and contentious of the Dost factors,” suggesting that it invites more questions than it answers: Is this a subjective or objective standard, and should we be evaluating the response of an average viewer or the specific defendant in this case? Moreover, is the intent to elicit a sexual response analyzed from the perspective of the photograph’s composition, or from extrinsic evidence (such as where the photograph was obtained, who the photographer was, etc.)? United States v. Amirault, 173 F.3d 28, 34 (1st Cir.1999). After all, if the sixth factor were to focus on the defendant’s “subjective reaction” to the photograph, as opposed to the photograph’s “intended effect,” “a sexual deviant’s quirks could turn a Sears catalog into pornography.” Id.; see also Wiegand, 812 F.2d at 1245 (“Private fantasies are not within the statute’s ambit.”). The First Circuit has further questioned whether the inquiry should be limited to “the four corners of the image” or extend" }, { "docid": "12267606", "title": "", "text": "term which is less than crystal clear.”). Tellingly, nearly all of the Dost-factor critics have lined up behind an argument that is of no help to Rivera. Their underlying concern is that the factors sweep too narrowly, i.e., that “[t]he standard employed by the district court was over-generous to the defendant....” Wiegand, 812 F.2d at 1289 (emphasis added); see also Frabizio, 459 F.3d at 88 (expressing concern that “the Dost factors will be used to inappropriately limit the scope of the statutory definition”); United States v. Wolf, 890 F.2d 241, 245 & n. 6 (10th Cir.1989) (“We do not hold that more than one Dost factor must be present to constitute a violation of 18 U.S.C. § 2251(a).”). However, this case offers no occasion for considering the circumstances, if any, in which the Dost factors might prove too “generous” to defendants, an issue the Government does not press on appeal. Much criticism has focused on the fifth Dost factor, which asks “whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity.” Dost, 636 F.Supp. at 832. On direct appeal in Dost, the Ninth Circuit considered that inquiry “over-generous to the defendant in implying as to the 17-year-old girl that the pictures would not be lascivious unless they showed sexual activity or willingness to engage in it.” Wiegand, 812 F.2d at 1244. To that court, the factor looked the wrong way — “lasciviousness is not a characteristic of the child photographed but of the exhibition which the photographer sets up for an audience that consists of himself or likeminded pedophiles.” Id. The court implied that a simpler, more subjective test was called for: “the pictures were an exhibition,” and the “exhibition was of the genitals”; “[i]t was a lascivious exhibition because the photographer arrayed it to suit his peculiar lust.” Id. Several other courts have concurred in this critique. See, e.g., Frabizio, 459 F.3d at 89 (“The absence of a sexual come-on ... does not mean that an image is not lascivious .... Children do not characteristically have countenances inviting sexual activity, and the statute does" }, { "docid": "12267610", "title": "", "text": "to evidence of the sexual exploitation involved in making the image. Frabizio, 459 F.3d at 89-90; see also Amirault, 173 F.3d at 34 (expressing doubt that a fact-finder should consider “the context surrounding the creation and acquisition of the photograph”). The Third Circuit has resolved the objection as follows: We must ... look at the photograph, rather than the viewer. If we were to conclude that the photographs were lascivious merely because [the defendant] found them sexually arousing, we would be engaging in conclusory bootstrapping rather than the task at hand — a legal analysis of the sufficiency of the evidence of lasciviousness. Villard, 885 F.2d at 125. So, to that court, “rather than being a separate substantive inquiry about the photographs,” the sixth Dost factor “is useful as another way of inquiring into whether any of the other five Dost factors are met.” Id. Some of this criticism is mitigated once one distinguishes between the production of child pornography and possession. In Dost, the defendants were charged with having produced child pornography. It was thus logical for the Ninth Circuit to hold that the pictures were “a lascivious exhibition because the photographer arrayed it to suit his peculiar lust.” Wiegand, 812 F.2d at 1244. It is a point of distinction that the defendants in Ami-rault, Villard and Frabizio were charged with having possessed (or transported) child pornography; there was no allegation that they located the victims, arranged or posed the scenes, or otherwise produced the visual depiction. The sixth Dost factor is not easily adapted to a possession case. Similarly, the Dost factors are arguably of diminished utility for purposes of Fourth Amendment analysis. See Hill, 322 F.Supp.2d at 1086-87 (advocating for test dictating that “[i]f an image of a minor displays the minor’s naked genital area, there is probable cause to believe that the image is lascivious unless there are strong indicators that it is not lascivious” (footnote and emphasis omitted)). That concern is not implicated here. Notwithstanding valid criticisms and cautions about the Dost factors, we see no error in the jury charge given by the District" } ]

[ { "docid": "2886234", "title": "", "text": "23,441. Moreover, appellants cannot escape their own brochure definitions. “A Limited Risk Forward, or LRF, is a hedged contract to buy or sell a specific commodity for a specific price on or before a specific date.” An option is “a right to buy (or sell) a commodity (sugar, tin, silver, etc.) at a fixed price, for a fixed length of time.” The essential distinction between the two definitions is hard to discern. We find that the pertinent statutory sections and regulations easily pass constitutional muster, both facially and as applied. EQUITABLE ESTOPPEL The doctrine of equitable estoppel operates to preclude a party, both at law and in equity, “[f]rom asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.” 2 J. Pomeroy, Equity Jurisprudence § 804 at 1421-22 (3d ed. 1905). The standard for a valid estoppel was articulated by this circuit in Bergeron v. Mansour, 152 F.2d 27, 30 (1st Cir. 1945): “A person is estopped from denying the consequences of his conduct where that conduct has been such as to induce another to change his position in good faith or such that a reasonable man would rely upon the representations made.” While we recognize that there still is some question as to whether the doctrine of equitable estoppel can apply to the government at all and, if it can, under what circumstances, we avoid that bram-blebush by assuming the application of the doctrine if the facts warrant it. Appellants’ claim of equitable estoppel is based on the assertion that any prosecution of them was unfair because they unsuccessfully sought from the Commission a definitive status of LRF vis-a-vis option. The basic fallacy of appellants’ position is that there was no misleading conduct or misrepresentations on the part of the Commission. Failure to respond to inquiries does not amount to estoppel" } ]

[ { "docid": "300260", "title": "", "text": "advantage of his own wrong.” Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 232, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959). “‘The principle is that where one party has by his representations or his conduct induced the other party to a transaction to give him an advantage which it would be against equity and good conscience for him to assert, he would not in a court of justice be permitted to avail himself of that advantage.’” Id. at 234, 79 S.Ct. 760. In other words, “a person may not deny the existence of a state of facts if he intentionally led another to believe a particular circumstance to be true and to rely upon such belief to his detriment.” 28 Am. Jur.2d § 40 (2000). Scholars on equity jurisprudence have defined equitable estoppel as follows: Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy. Spencer W. Symons, 3 Pomeroy’s Treatise on Equity Jurisprudence § 804 (5th ed.1941); see also W.H. Lyon, Jr., 3 Story’s Commentaries on Equity Jurisprudence § 1989 (14th ed.1918). Equitable estoppel is not limited in its application to statutes of limitations. In contrast, it is settled that the quite different doctrine of equitable tolling works to toll a statute of limitations “if such tolling is necessary to prevent unfairness to a diligent plaintiff.” 51 Am. Jur.2d § 174 (2000). The Supreme Court set forth the test for equitable tolling in Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Federal courts have typically extended equitable relief only sparingly. We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing" }, { "docid": "10979975", "title": "", "text": "M/V Ocean Lynx, 901 F.2d 934, 939 (11th Cir.1990), cert. denied, 498 U.S. 1025, 111 S.Ct. 675, 112 L.Ed.2d 667 (1991). DISCUSSION I. District Court’s Equitable Estoppel and Conversion Rulings Sea-Barge argues that the district court lacked the necessary jurisdiction and substantive grounds for its rulings concerning equitable estoppel and conversion. Alternatively, Sea-Barge argues that the district court erred in failing to apply the doctrine of avoidable consequences. We find that the district court had the necessary jurisdiction and grounds for both rulings. Additionally, we find no error in the district court’s refusal to apply the doctrine of avoidable consequences. A Equitable Estoppel The district court concluded that Sea-Barge was equitably estopped from enforcing its bill of lading provision that required freight charges be paid in. United States currency. The court found that because Sea-Barge “made the payment of $3155.70 the only condition for release” of Python’s cargo and “made no mention of the required method of payment,” Sea-Barge was es-topped from relying on an unmentioned bill of lading provision as grounds for refusing release of Python’s cargo. (R. 1A1 at 15, 16) Whether the district court was correct in applying equitable estoppel in this case is reviewed de novo. United States v. Walcott, 972 F.2d 323, 325 (11th Cir.1992). “ ‘[T]he constituent elements of equitable estoppel constitute questions of fact,’ however,” and are reviewed under the clearly erroneous standard. Id. at 325 (quoting Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1323 (11th Cir.1989)). Equitable estoppel “is grounded on a notion of fair dealing and good conscience. It is designed to aid the law in the administration of justice where without its aid injustice might result.” DeShong v. Seaboard Coast Line R.R., 737 F.2d 1520, 1522 (11th Cir.1984). The doctrine operates to preclude a party [who has made representations of fact through his words or conduct] ‘[f]rom asserting rights which might perhaps have otherwise existed ... as against another person, who in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquired some corresponding" }, { "docid": "14806227", "title": "", "text": "”), vacated on other grounds sub nom. Becker v. Black & Veatch Consulting Engineers, 509 F.2d 42 (8th Cir.1974); cf. Standard Oil Co. of California v. Intrepid, Inc., 26 Cal.App.3d 135, 139-40, 102 Cal.Rptr. 604, 607-08 (1972) (negligence of ship owner precludes recovery from indemnitor only if ship owner’s conduct prevented or substantially handicapped indemnitor in performing his duties). Becker holds explicitly, and Standard Oil implicitly, that an indemnitee is not barred from recovery by mere imputed knowledge of an indemnitor’s negligence. If so, so much the less should an indemnitee be barred by imputed knowledge of an intentional fraud. Cases barring recovery under the acquiescence doctrine frequently have involved some degree of joint fault between the indemnitor and the indemnitee. There is no degree of joint fault here, for the only failing outside of Avon’s own intentional misconduct is the breach by Oxford’s agents of a duty to inform that they owed to Oxford rather than to Yulsan. As between an innocent principal whose loss is caused in part by an unfaithful or negligent agent, and another agent who has injured the principal through willful misconduct, the latter rather than the former ought to bear the burden of the loss. This case does not present any special circumstances suggesting a contrary result. We therefore hold that Oxford was not “equitably es-topped” or barred by “acquiescence,” and that it is entitled to recover from Avon under the indemnity provision of COGSA. The district court dismissed Oxford’s further negligence and fraud claims against Avon on the ground that COGSA preempted these common law bases of liability. While several lower court decisions support this conclusion, see Miller Export Corp. v. Hellenic Lines, Ltd., 534 F.Supp. 707, 710 (S.D.N.Y.1982); National Automotive Publications, Inc. v. United States Lines, Inc., 486 F.Supp. 1094, 1099 (S.D.N.Y.1980); B.F. McKernin & Co. v. United States Lines, Inc., 416 F.Supp. 1068, 1071 (S.D.N.Y.1976), we need neither accept nor reject these decisions. Since Oxford’s COGSA claim is an adequate basis for the relief it seeks against Avon, we need not reach the issue. Ill Claims against NHT and Gendron Oxford’s" }, { "docid": "879999", "title": "", "text": "and Fleming v. City of Steubenville, 44 Ohio App. 121, 184 N.E. 701 (1931), citing 21 Corpus Juris 1113, the court stated: Estoppel by misrepresentation, or equitable estoppel, is defined as the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person who in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right either of contract or of remedy. This estoppel arises when one by his acts, misrepresentations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts. More recently, the Ohio Supreme Court has stated: Equitable estoppel precludes a party from asserting certain facts where the party, by his conduct, has induced another to change his position in good faith reliance upon that conduct. State ex rel. Cities Service Oil Co. v. Orteca, 63 Ohio St.2d 295, 409 N.E.2d 108, 1020-21 (1980). (citing cases) The statements made in the affidavits more than meet all of the elements of equitable es-toppel. Paragraph 23 in the pension plan has enough ambiguity that we can see why the union would reasonably rely on the company’s representations that an employee’s rights would vest after 15 years of service. In any event, the existence of representations, if any, is for the jury to determine. A court can then determine whether the union reasonably and detrimentally relied on the representations of the company negotiators. . Our position is also supported by federal labor law policy. Pension plans and retirement benefits are compulsory subjects of collective bargaining. Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1189, 55 L.Ed.2d 443 (1978); NLRB" }, { "docid": "22105403", "title": "", "text": "the National Forest. For all practical purposes it was not and is not a part of the National Forest. Over the years the Government made no claim upon Lumber Company or its successors to convey any land under the 1934 Document. No assertion of ownership or other rights in the land was made until 1961 (with the exception of 1958, when Government, inferentially at least, asserted some ownership interest by discontinuing negotiations for a land exchange). During the same period of time, Government, without interference, allowed Georgia-Pacific to manage this timberland at a very considerable expense, meanwhile adding a great deal' of value to it. Based on the foregoing facts, the district court found that the 1934 Document was a valid contract, but whose purposes and objectives were frustrated by the retraction of the boundaries of the Sis-kiyou National Forest in 1958, thereby terminating the duty of Georgia-Pacific to convey any cutover lands pursuant to the 1934 Document. The district court found the 1958 retraction to constitute a failure of consideration, rendering the 1934 Document void and unenforceable. We affirm the decision of the district court but on grounds other than those ’ upon which its decision is based. The grounds upon which the decision of this court is founded are discussed hereafter. Equitable Estoppel Equitable estoppel is a doctrine adjusting the relative rights of parties based upon consideration of justice and good conscience. Smale & Robinson, Inc. v. United States, 123 F.Supp. 457, 463 (S.D.Cal.1954); Peoples National Bank v. Manos Brothers, Inc., 226 S.C. 257, 84 S.E.2d 857, 870, 45 A.L.R.2d 1070 (1954); 3 Pomeroy, Equity Jurisprudence §§ 801, 802 (5th ed. Symons 1941); 28 Am.Jur.2d Estoppel and Waiver § 28, at 629. Pomeroy has defined equitable estoppel as having the effect of absolutely precluding a party, both at law and equity “[f]rom asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part" }, { "docid": "14806219", "title": "", "text": "BREYER, Circuit Judge. Oxford Shipping Co., Ltd. (“Oxford”), is a subsidiary of a large Hong Kong commercial firm. Oxford’s assets consist principally of one cargo ship, the “Eastern Saga.” Oxford claims that it was hurt when its ship was seized by South Korean authorities as a result of a scheme to cheat a Korean firm, Yulsan. Yulsan had bought about 20,000 tons of scrap metal, which applicable bills of lading represented to be aboard the “Eastern Saga,” but the ship actually contained only about 17,000 tons of metal. Oxford brought suit to recover damages in New Hampshire federal district court. It sued Avon Trading Corporation (“Avon”), the shipper that used the “Eastern Saga” to transport the metal; New Hampshire Trading Corp. (“NHT”), a scrap dealer that sold scrap to Avon; Frederic Gendron, the president of NHT; and Tager Steamship Agency (“Tager”), an agent retained to issue bills of lading and perform other tasks associated with loading and shipping the scrap. Since Oxford itself seems to have been innocent of wrongdoing (although the captain and crew of its ship may have known of the plot), while several of the defendants seem to have been guilty of conduct ranging from simple breach of fiduciary duty to what approaches criminal behavior, one might believe at first glance that it would be fairly easy for Oxford (the company and its shareholders) to recover for the harms suffered. The record reveals, however, a highly complicated set of legalistic arguments, made by the defendants’ lawyers and by Oxford’s lawyers in response, that led the district court to conclude that the defendants were entitled to judgment on all counts. Oxford appeals. Our review of the case convinces us that the law should, and does, correspond with one’s elementary sense of justice: namely, as between Oxford and most of these defendants, the defendants rather than Oxford and its shareholders should pay for the damage caused. I The complex set of facts underlying this litigation can be simplified as follows. Avon contracted in 1978 to sell roughly 20,000 tons of scrap metal to Yulsan. Avon subchartered the “Eastern Saga”" }, { "docid": "14806228", "title": "", "text": "agent, and another agent who has injured the principal through willful misconduct, the latter rather than the former ought to bear the burden of the loss. This case does not present any special circumstances suggesting a contrary result. We therefore hold that Oxford was not “equitably es-topped” or barred by “acquiescence,” and that it is entitled to recover from Avon under the indemnity provision of COGSA. The district court dismissed Oxford’s further negligence and fraud claims against Avon on the ground that COGSA preempted these common law bases of liability. While several lower court decisions support this conclusion, see Miller Export Corp. v. Hellenic Lines, Ltd., 534 F.Supp. 707, 710 (S.D.N.Y.1982); National Automotive Publications, Inc. v. United States Lines, Inc., 486 F.Supp. 1094, 1099 (S.D.N.Y.1980); B.F. McKernin & Co. v. United States Lines, Inc., 416 F.Supp. 1068, 1071 (S.D.N.Y.1976), we need neither accept nor reject these decisions. Since Oxford’s COGSA claim is an adequate basis for the relief it seeks against Avon, we need not reach the issue. Ill Claims against NHT and Gendron Oxford’s claims against NHT and its president Gendron involve the same issues and concern the same conduct, namely Gendron’s letter to Tager stating that NHT had loaded over 10,000 tons of scrap on the ship. As Gendron apparently knew, NHT had, in reality, loaded only some 7,400 tons. Oxford based its claim primarily on the theory that NHT, through Gendron, had fraudulently misrepresented the weight of the cargo. The district court held that under New Hampshire law, a plaintiff must show an intent to deceive in order to recover for fraud. See Hanson v. Edgerly, 29 N.H. 343 (1854); Lord v. Colley, 6 N.H. 99 (1833). It found no such intent here. Gendron testified that the misleading letter was typed by an Avon official, that it was placed before him, and that he signed it without looking closely at it. Gendron testified that he did not know he was helping Avon perpetrate a fraud. The district court credited enough of this testimony to find that Gendron lacked the requisite intent to deceive. The district court saw" }, { "docid": "14806226", "title": "", "text": "(and Yulsan) about Avon’s conduct, Avon was helped rather than hindered by their conduct. The doctrine most on point here is not that of equitable estoppel, which we cannot find to have been applied in a case like this one, but the defense of “acquiescence.” That defense bars an indemnitee from obtaining indemnification when the indemnitee knowingly acquiesces in the indemnitor’s wrongful conduct. See, e.g., Missouri Pac. R.R. Co. v. Winburn Tile Mfg. Co., 461 F.2d 984, 989 (8th Cir.1972); Missouri Pac. R.R. Co. v. Arkansas Oak Flooring, 434 F.2d 575, 578-79 (8th Cir.1970). As is true of “equitable estoppel,” we have found no case implying this defense under COGSA. In any event, we do not believe that the defense bars recovery by an innocent principal-indemnitee against a culpable agent-indemnitor merely because another of the principal’s agents has knowledge of the indemnitor’s wrongdoing. See Becker v. Central Telephone and Utilities Corp., 365 F.Supp. 984, 988-89 (D.S.D.1973) (acquiescence requires awareness of dangerous situation created by indemnitor, and “ ‘awareness’ denotes something more than imputed legal knowledge’ ”), vacated on other grounds sub nom. Becker v. Black & Veatch Consulting Engineers, 509 F.2d 42 (8th Cir.1974); cf. Standard Oil Co. of California v. Intrepid, Inc., 26 Cal.App.3d 135, 139-40, 102 Cal.Rptr. 604, 607-08 (1972) (negligence of ship owner precludes recovery from indemnitor only if ship owner’s conduct prevented or substantially handicapped indemnitor in performing his duties). Becker holds explicitly, and Standard Oil implicitly, that an indemnitee is not barred from recovery by mere imputed knowledge of an indemnitor’s negligence. If so, so much the less should an indemnitee be barred by imputed knowledge of an intentional fraud. Cases barring recovery under the acquiescence doctrine frequently have involved some degree of joint fault between the indemnitor and the indemnitee. There is no degree of joint fault here, for the only failing outside of Avon’s own intentional misconduct is the breach by Oxford’s agents of a duty to inform that they owed to Oxford rather than to Yulsan. As between an innocent principal whose loss is caused in part by an unfaithful or negligent" }, { "docid": "9736557", "title": "", "text": "January 7, 1964. The contract is the American Institute of Architects Standard Form of Agreement Between Owner and Architect in which FNR is referred to as the owner. Thus FNR, with Brown’s complete participation, held itself out as owner of Parcel M both before and after the purported transfer out to Eden, and the contract which led to the judgment was made on FNR’s representation of ownership. The business facts and representations made establish that beneficial ownership was placed in FNR, and neither Brown nor FNR can now be heard to the contrary. The cases are legion where parties in similar circumstances have been universally equitably estopped by such voluntary conduct. Such parties either at law or in equity cannot assert rights “against another person who has in good faith relied upon such conduct and has been led thereby to change his position for the worse, and who on his part acquired some corresponding right either of property, of contract or of remedy.” Fitch v. Double “U” Sales Corp., 212 Md. 324, 338, 129 A.2d 93, 101 (1957). Accord, Johnson Lumber Co. v. Magruder, 218 Md. 440, 447-448, 147 A.2d 208, 212 (1958); 4 Tiffany, Real Property § 1235 (3rd ed. 1939). Here plaintiff relied on representations by Brown for FNR which es-top Brown and FNR. Bradley v. Cornwell, 203 Md. 28, 98 A.2d 280 (1953) (detrimental reliance on party’s delay in asserting rights); Machovec v. Shipley, 171 Md. 339, 189 A. 223 (1937) (party failed to assert survivorship interest in property when father leased it). Where the above-cited factors are present and the parties, Brown and FNR, against whom the doctrine is invoked have also benefited from the result, an even stronger case for estoppel is established. Benson v. Borden, 174 Md. 202, 198 A. 419 (1938) (failure to make timely disclosure of claims against corporation benefited officer of corporation); Funk v. Newcomer, 10 Md. 301 (1856) (representations by beneficiary of trust helped trustees sell land, so beneficiary es-topped from later claiming title). While a judgment creditor may not be in the same position as a bona fide purchaser" }, { "docid": "2529467", "title": "", "text": "because, if a refinancing of a loan were to operate to transform what was initially a commercial loan into a noncommercial loan, thereby restricting a lender for such refinancing as to the interest rate that it could charge thereon, then the market for many such refinancing loans would greatly dimmish if not dry up entirely. Because, and as the Debtor concedes, the purpose for which the Initial Loan was sought was so as to allow the Debtor to make an investment in U.S. Funding, both the 1st Refinancing Loan and the FMV Loan must also be characterized as one of investment. Second, the Court holds that the Debtor is equitably estopped in any event from denying that the FMV Loan is an investment loan. The law regarding equitable estoppel in Maryland is stated as follows: In Knill v. Knill [306 Md. 527, 510 A.2d 546 (1986)] ... we defined equitable estoppel to be “ ‘the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse and who on his part requires some corresponding right, either of property, of contract, or of remedy.’ ” The cited work describes the general principle underlying estoppel in pais as loss-shifting. Pomeroy states, “When one of two innocent persons — that is, persons each guiltless of an intentional, moral wrong — must suffer a loss, it must be borne by that one of them who by his conduct — acts or omissions — has rendered the injury possible.” In Grimberg v. Martin, [338 Md. 546, 659 A.2d 1287 (1995)] ... we restated the elements of estoppel, saying: “ ‘[I]t is now well established that ‘an estoppel may arise even where there is no intent to mislead, if the actions of one party cause a prejudicial change in the conduct of the other.’ Indeed, all" }, { "docid": "14806223", "title": "", "text": "the seizure of its ship and for the potential liability created by Yulsan’s claims against it. Oxford sought to recover from Avon, NHT, Gendron, and Tager for breach of contract, negligence, and fraudulent misrepresentation in connection with Avon’s attempted fraud against Yulsan. After a four-day bench trial, the district court entered judgment against Oxford on every claim. II Claims against Avon Oxford’s claims against Avon rest primarily upon its contention that, in providing false information for the bills of lading, Avon breached its contractual obligations to Oxford. We believe that the district court properly characterized the claim as one arising under the Carriage of Goods by Sea Act, 46 U.S.C. §§ 1300 et seq. (“COGSA”). COGSA provides in part that [t]he shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity, and weight [of the cargo], as furnished by him; and the shipper shall indemnify the carrier against all loss, damages, and expenses arising or resulting from inaccuracies in such particulars. 46 U.S.C. § 1303(5). The facts make clear that Avon breached its duty to supply accurate information about the weight of the cargo. In fact, Avon deliberately overstated the weight. Yet the district court held that Avon need not indemnify Oxford for its “loss, damages, and expenses ... resulting from [those] inaccuracies” (other than Oxford’s potential liability to Yulsan), because Oxford’s officers on the “Eastern Saga” knew about Avon’s fraud. This fact, in the court’s view, “equitably estopped” Oxford from recovering. Although the factual findings of the district court concerning the knowledge of Oxford’s officers are not clearly erroneous, Fed.R.Civ.P. 52(a), the court erred in its legal conclusion that those facts supported the application of equitable estoppel. As an initial matter, it is far from clear that the doctrine of equitable estoppel applies under § 1303(5); on its face, § 1303(5) imposes absolute liability on a shipper who supplies a carrier with inaccurate information about a cargo, without regard to the carrier’s conduct. Moreover, even if it were assumed that the common law defense of equitable estoppel" }, { "docid": "22105404", "title": "", "text": "void and unenforceable. We affirm the decision of the district court but on grounds other than those ’ upon which its decision is based. The grounds upon which the decision of this court is founded are discussed hereafter. Equitable Estoppel Equitable estoppel is a doctrine adjusting the relative rights of parties based upon consideration of justice and good conscience. Smale & Robinson, Inc. v. United States, 123 F.Supp. 457, 463 (S.D.Cal.1954); Peoples National Bank v. Manos Brothers, Inc., 226 S.C. 257, 84 S.E.2d 857, 870, 45 A.L.R.2d 1070 (1954); 3 Pomeroy, Equity Jurisprudence §§ 801, 802 (5th ed. Symons 1941); 28 Am.Jur.2d Estoppel and Waiver § 28, at 629. Pomeroy has defined equitable estoppel as having the effect of absolutely precluding a party, both at law and equity “[f]rom asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.” 3 Pomeroy § 804, at 189. See also Dickerson v. Colgrove, 100 U.S. 578, 580, 25 L.Ed. 618 (1879); Bankers Trust Co. v. Pacific Employers Insurance Co., 282 F.2d 106, 112 (9th Cir. 1960). Equitable estoppel prevents a party from assuming inconsistent positions to the detriment of another party, Lebold v. Inland Steel Co., 125 F.2d 369, 375 (7th Cir. 1941) or, as stated in Bigelow, Law of Estoppel 603 (6th ed. Carter 1913), “ ‘He who keeps silent when duty commands him .to speak shall not speak when duty commands him to keep silent.’ ” See also 31 C.J.S.. Es-toppel § 108, at p. 548. Equitable estoppel is a rule of justice which, in its proper field, prevails over all other rules. City of Chetopa v. Board of County Com’rs., 156 Kan. 290, 133 P.2d 174, 177 (1943). An equitable estoppel will be found only where all the elements necessary for its invocation are shown to the court. The test in this" }, { "docid": "10979976", "title": "", "text": "of Python’s cargo. (R. 1A1 at 15, 16) Whether the district court was correct in applying equitable estoppel in this case is reviewed de novo. United States v. Walcott, 972 F.2d 323, 325 (11th Cir.1992). “ ‘[T]he constituent elements of equitable estoppel constitute questions of fact,’ however,” and are reviewed under the clearly erroneous standard. Id. at 325 (quoting Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1323 (11th Cir.1989)). Equitable estoppel “is grounded on a notion of fair dealing and good conscience. It is designed to aid the law in the administration of justice where without its aid injustice might result.” DeShong v. Seaboard Coast Line R.R., 737 F.2d 1520, 1522 (11th Cir.1984). The doctrine operates to preclude a party [who has made representations of fact through his words or conduct] ‘[f]rom asserting rights which might perhaps have otherwise existed ... as against another person, who in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquired some corresponding right... Oxford Shipping Co. v. New Hampshire Trading Corp., 697 F.2d 1, 4 (1st Cir.1982) (alterations in original) (quoting Precious Metals Assocs., Inc. v. Commodity Futures Trading Comm’n, 620 F.2d 900, 908 (1st Cir.1980)). Thus, the doctrine requires (1) a representation of fact by one party contrary to a later asserted position; (2) good faith reliance by another party upon the representation; and (3) a detrimental change in position by the later party due to the reliance. See Irvine v. Cargill Investor Servs., Inc., 799 F.2d 1461, 1463 (11th Cir.1986) (applying Florida law and citing Department of Revenue v. Anderson, 403 So.2d 397, 400 (Fla.1981)); Department of Labor & Employment Sec. v. Little, 588 So.2d 281, 283 (Fla. 1st DCA 1991) (citing Anderson, 403 So.2d at 400). Though our legal analysis may be slightly different than the district court’s, we conclude that the court’s factual findings support the application of equitable estoppel in this case. First, upon DeVarona’s return to Sea-Barge’s terminal the second time, Inos-troza implicitly represented that there was nothing DeVarona could do" }, { "docid": "18574606", "title": "", "text": "of a party whereby he is precluded from asserting rights which might otherwise have existed against another party who has, in good faith, relied upon such conduct and has been led thereby to change his position for the worse.” Gary-Wheaton Bank v. Burt, 104 Ill.App.3d 767, 60 Ill.Dec. 518, 527, 433 N.E.2d 315, 324 (2d Dist.1982). As stated in Stewart v. O’Bryan, 50 Ill.App.3d 108, 8 Ill.Dec. 633, 365 N.E.2d 1019 (4th Dist.1977), the six elements which must be present for the doctrine of equitable estop-pel to apply are: (1) words or conduct by the party against whom estoppel is alleged constituting either a misrepresentation or concealment of material facts; (2) knowledge on the part of the party against whom the estoppel is alleged that representations made were untrue; (3) the party claiming the benefit of the estoppel must have not known the representations to be false either at the time they were made or at the time they were acted upon; (4) the party estopped must either intend or expect that his conduct or representations will be acted upon by the party asserting the estoppel; (5) the party seeking the benefit of the estoppel must have relied or acted upon the representations; and (6) the party claiming the benefit of the estoppel must be in a position of prejudice if the party against whom the estoppel is alleged is permitted to deny the truth of the representations made. 8 Ill.Dec. at 634-35, id. at 1020-21. Proof of fraudulent intent is not always necessary to invoke the estoppel doctrine. Although fraud is an essential element, it is sufficient that a fraudulent or unjust effect results from the defendant’s conduct. Cessna v. Montgomery, 63 Ill.2d 71, 86, 344 N.E.2d 447, 454 (1976). Whether estoppel should be applied in a given case must be determined from the particular circumstances. Tyska by Tyska v. Board of Education, 117 Ill.App.3d 917, 73 Ill.Dec. 209, 221, 453 N.E.2d 1344, 1356 (1st Dist.1983). The elements necessary for equitable estoppel are not present here. There is no indication that Chart House’s failure to actively pursue from the" }, { "docid": "5735744", "title": "", "text": "the Government are expected to know the law and may not rely on the conduct of government agents contrary to law.” Community Health Services, 104 S.Ct. at 2226. Whatever their position within the agency, the MSHA officials who approved Emery’s plan clearly had no authority to waive the Act’s requirements and bind the government to what amounts to an amendment of the statutory language. Particularly where mandatory safety standards are concerned, a mine operator must be charged with knowledge of the Act’s provisions and has a duty to comply with those provisions. To the extent Emery relied on an interpretation by MSHA officials of the Act’s implementing regulations, Emery assumed the risk that that interpretation was in error. See Browning, 630 F.2d at 702; see also Community Health Services, 104 S.Ct. at 2226 n. 17. Furthermore, it is far from clear that the requirements for equitable estoppel have been met in this case. In order to assert estoppel, a party “must have relied on its adversary’s conduct ‘in such a manner as to change his position for the worse,’ and that reliance must have been reasonable in that the party claiming the estoppel did not know nor should it have known that its adversary’s conduct was misleading.” Id. at 2223 (quoting III J. Pomeroy, Equity Jurisprudence § 805, at 192 (S. Symons ed. 1941)). In addition, the true facts of the matter must have been unknown to the party claiming the estoppel not only at the time of the representation, “but also at the time when [that representation] is acted upon by him. If, at the time when he acted, such party had knowledge of the truth, ... he cannot claim to have been misled by relying upon the representation or concealment.” Id. at 2223-24 n. 10 (quoting Pomeroy, supra, § 810, at 219). In the present case, MSHA issued a policy memorandum on June 1, 1981, which indicated that miners would have to receive annual refresher training by the end of “the last calendar month of th'eir annual training cycle. For example, a miner beginning work on June 5," }, { "docid": "2529468", "title": "", "text": "asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse and who on his part requires some corresponding right, either of property, of contract, or of remedy.’ ” The cited work describes the general principle underlying estoppel in pais as loss-shifting. Pomeroy states, “When one of two innocent persons — that is, persons each guiltless of an intentional, moral wrong — must suffer a loss, it must be borne by that one of them who by his conduct — acts or omissions — has rendered the injury possible.” In Grimberg v. Martin, [338 Md. 546, 659 A.2d 1287 (1995)] ... we restated the elements of estoppel, saying: “ ‘[I]t is now well established that ‘an estoppel may arise even where there is no intent to mislead, if the actions of one party cause a prejudicial change in the conduct of the other.’ Indeed, all that is needed to create an equitable estoppel is (1) voluntary conduct or representation, (2) reliance, and (3) detriment.’ ” Chevy Chase Bank, FSB v. Chaires, 350 Md. 716, 715 A.2d 199, 209 (1998) (citations omitted). The Debtor is equitably estopped to deny that the FMV Loan is at least an investment loan because (a) the Debtor voluntarily signed at least three separate documents at the time when the FMV Loan was made that contain explicit representations, inter alia, to the effect that the FMV Loan “will be used entirely for commercial, business and/or investment purposes” (hereafter “the Loan Documents”), see Ex. to Def.’s Reply (Borrower Affidavit, Borrower Certifications, and Business and Investment Affidavit), Docket No. 21, (b) First Mount Vernon relied on such signed declarations by the Debtor as evidenced by the fact that First Mount Vernon proceeded to close on the FMV Loan and lent under the presumption that the FMV Loan is one for commercial, business and/or investment purposes, see supra p. 638 note 1 (such presumption by First Mount Vernon follows" }, { "docid": "14806224", "title": "", "text": "§ 1303(5). The facts make clear that Avon breached its duty to supply accurate information about the weight of the cargo. In fact, Avon deliberately overstated the weight. Yet the district court held that Avon need not indemnify Oxford for its “loss, damages, and expenses ... resulting from [those] inaccuracies” (other than Oxford’s potential liability to Yulsan), because Oxford’s officers on the “Eastern Saga” knew about Avon’s fraud. This fact, in the court’s view, “equitably estopped” Oxford from recovering. Although the factual findings of the district court concerning the knowledge of Oxford’s officers are not clearly erroneous, Fed.R.Civ.P. 52(a), the court erred in its legal conclusion that those facts supported the application of equitable estoppel. As an initial matter, it is far from clear that the doctrine of equitable estoppel applies under § 1303(5); on its face, § 1303(5) imposes absolute liability on a shipper who supplies a carrier with inaccurate information about a cargo, without regard to the carrier’s conduct. Moreover, even if it were assumed that the common law defense of equitable estoppel were incorporated into the statutory cause of action created by § 1303(5), the defense simply has no application here. Traditionally, the doctrine of equitable estoppel operates to preclude a party [who has made representations of fact through his words or conduct] ‘[f|rom asserting rights which might perhaps have otherwise existed ... as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquired some corresponding right Precious Metals Associates, Inc. v. Commodity Futures Trading Commission, 620 F.2d 900, 908 (1st Cir.1980), quoting 2 J. Pomeroy, Equity Jurisprudence § 804, at 1421-22 (3d ed. 1905); see, e.g., Lavin v. Marsh, 644 F.2d 1378 (9th Cir.1981). In this case, neither Oxford nor its agents made any representations to Avon concerning the cargo, nor did Avon rely on any representations in pursuing its fraudulent scheme, nor would it have had the requisite good faith had it done so. Insofar as Oxford’s agents failed in their duty to inform Oxford" }, { "docid": "6040513", "title": "", "text": "released by ITT’s handling of the security filings. Extension and Modification of the Principal Contract D.S. America’s final string to its bow is that its obligations under the Agreement were released when ITT twice modified its agreement with ColorComp without D.S. America’s approval. D.S. America has cited a wealth of precedent holding modification of the principal contract, such as an extension of time for payment, will serve to discharge a guarantor (see, e.g., Lee v. Pioneer State Bank, 97 Ill.App.3d 97, 98, 53 Ill.Dec. 26, 27-28, 423 N.E.2d 218, 219-20 (3d Dist.1981)). ITT Mem. II — 4 retorts with the language of estoppel: D.S. America cannot use this traditional guarantor’s defense because it had refused to honor its recourse commitment before each ITT renegotiation of the note. That response carries the day for ITT Equitable estoppel is a familiar and broadly applicable concept (18 I.L.P. Estop-pel § 22, at 79 (1956)): Equitable estoppel may be defined as the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in chancery, from asserting rights which might otherwise have existed as against another person who has, in good faith, relied upon such conduct and has been led thereby to change his position for the worse.... Illinois cases have had surprisingly little occasion to apply that concept to a guarantor after repudiation of a guaranty commitment. Neither the sole case cited by ITT (South Side Trust & Savings Bank of Peoria v. Peoria Harbor Marina, Inc., 101 Ill.App.3d 196, 56 Ill.Dec. 712, 427 N.E.2d 1258 (3d Dist.1981)) nor the single case uncovered by this Court (Blackhawk Hotel Associates v. Kaufman, 85 Ill.2d 59, 51 Ill.Dec. 658, 421 N.E.2d 166 (1981)) is directly on point, though of the two Black-hawk Hotel is substantially the more similar to this case. But in any event, the principles that generally inform courts in invoking estoppel certainly operate here. In each instance ITT extended the note after D.S. America had refused to honor the Agreement. At that point ITT faced the alternative of suing D.S. America immediately or attempting to make" }, { "docid": "18574605", "title": "", "text": "stay provisions applicable. 19 B.R. at 573 (footnote omitted). See also Matter of DePoy, supra, 29 B.R. at 470; In re Darwin, supra, 22 B.R. at 263; In re Victory Pipe Craftsmen, Inc., supra, 8 B.R. at 637; In re Chuck Wagon Bar-B-Que Inc., 7 B.R. 92, 95 (Bkrtcy.D.C.1980). The bankruptcy judge’s position that Chart House is equitably estopped from asserting that the agreements were terminated is perhaps the strongest of the three factors identified. After its suit for possession of the premises was stayed, Chart House filed a complaint requesting the bankruptcy judge to compel assumption or rejection of the agreements in question. In apparent reliance upon Chart House’s failure to assert that the agreements were terminated, the trustee devised a reorganization plan. It is only after the trustee filed his plan, which called for the sale of the business rather than its return to Chart House, that Chart House amended its complaint to assert that the agreements had been terminated prior to bankruptcy. Equitable estoppel is defined as “the effect of voluntary conduct of a party whereby he is precluded from asserting rights which might otherwise have existed against another party who has, in good faith, relied upon such conduct and has been led thereby to change his position for the worse.” Gary-Wheaton Bank v. Burt, 104 Ill.App.3d 767, 60 Ill.Dec. 518, 527, 433 N.E.2d 315, 324 (2d Dist.1982). As stated in Stewart v. O’Bryan, 50 Ill.App.3d 108, 8 Ill.Dec. 633, 365 N.E.2d 1019 (4th Dist.1977), the six elements which must be present for the doctrine of equitable estop-pel to apply are: (1) words or conduct by the party against whom estoppel is alleged constituting either a misrepresentation or concealment of material facts; (2) knowledge on the part of the party against whom the estoppel is alleged that representations made were untrue; (3) the party claiming the benefit of the estoppel must have not known the representations to be false either at the time they were made or at the time they were acted upon; (4) the party estopped must either intend or expect that his conduct or" }, { "docid": "14806225", "title": "", "text": "were incorporated into the statutory cause of action created by § 1303(5), the defense simply has no application here. Traditionally, the doctrine of equitable estoppel operates to preclude a party [who has made representations of fact through his words or conduct] ‘[f|rom asserting rights which might perhaps have otherwise existed ... as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquired some corresponding right Precious Metals Associates, Inc. v. Commodity Futures Trading Commission, 620 F.2d 900, 908 (1st Cir.1980), quoting 2 J. Pomeroy, Equity Jurisprudence § 804, at 1421-22 (3d ed. 1905); see, e.g., Lavin v. Marsh, 644 F.2d 1378 (9th Cir.1981). In this case, neither Oxford nor its agents made any representations to Avon concerning the cargo, nor did Avon rely on any representations in pursuing its fraudulent scheme, nor would it have had the requisite good faith had it done so. Insofar as Oxford’s agents failed in their duty to inform Oxford (and Yulsan) about Avon’s conduct, Avon was helped rather than hindered by their conduct. The doctrine most on point here is not that of equitable estoppel, which we cannot find to have been applied in a case like this one, but the defense of “acquiescence.” That defense bars an indemnitee from obtaining indemnification when the indemnitee knowingly acquiesces in the indemnitor’s wrongful conduct. See, e.g., Missouri Pac. R.R. Co. v. Winburn Tile Mfg. Co., 461 F.2d 984, 989 (8th Cir.1972); Missouri Pac. R.R. Co. v. Arkansas Oak Flooring, 434 F.2d 575, 578-79 (8th Cir.1970). As is true of “equitable estoppel,” we have found no case implying this defense under COGSA. In any event, we do not believe that the defense bars recovery by an innocent principal-indemnitee against a culpable agent-indemnitor merely because another of the principal’s agents has knowledge of the indemnitor’s wrongdoing. See Becker v. Central Telephone and Utilities Corp., 365 F.Supp. 984, 988-89 (D.S.D.1973) (acquiescence requires awareness of dangerous situation created by indemnitor, and “ ‘awareness’ denotes something more than imputed legal knowledge’" } ]

[ { "docid": "8472656", "title": "", "text": "their victims whole.” Rochester, 898 F.2d at 983. See also Smith, 944 F.2d at 626. Prejudgment interest reflects the victim’s loss due to his inability to use the money for a productive purpose, and is therefore necessary to make the victim whole. This is especially true when, as in this case, the victim is a financial institution because “[floregone interest is one aspect of the victim’s actual loss.” Smith, 944 F.2d at 626. We hold that prejudgment interest is properly included in a VWPA restitution award. Because the sentencing court failed to specify which portion of the WestStar, First Pryor, Fourth National, and General Electric restitution awards constituted attorneys fees and which portion constituted prejudgment interest, we must remand for this determination. On remand, the attorney fees must be subtracted from Defendant’s restitution obligation' unless they are found to be directly related to Defendant’s criminal conduct. II. Defendant next asserts that the government failed to show that her criminal conduct — i.e., filing false financial documents — caused the losses to WestStar, First Pryor, Transameriea, Fourth National, and General Electric. Rather, Defendant contends that Patty Precision and Vogue’s declaration of bankruptcy actually caused the losses. We find Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), and United States v. Diamond, 969 F.2d 961 (10th Cir.1992), instructive. In Hughey, the Court held that “the language and structure of the [VWPA] make plain Congress’ intent to authorize an award of restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction.” Hughey, 495 U.S. at 413, 110 S.Ct. at 1981. We have interpreted Hughey to mean that a restitution order which includes losses “stemming from charges not resulting in [a] conviction[ ]” violates the VWPA. Diamond, 969 F.2d at 965; United States v. Wainwright, 938 F.2d 1096, 1098 (10th Cir.1991). This precedent would dictate that Defendant cannot be ordered to pay restitution to any victims other than WestStar and the Department of Defense (the only victims named in her counts of conviction); however, Congress amended the VWPA after" } ]

[ { "docid": "22898806", "title": "", "text": "Officer’s Questionnaire (Count Six) — and no restitution is appropriate. 1 Restitution under the Victim and Witness Protection Act (VWPA) is limited to losses caused by the specific conduct that is the basis of the offense of conviction, Hughey v. United States, 495 U.S. 411, 418-420, 110 S.Ct. 1979, 1984, 109 L.Ed.2d 408 (1990), but we have held that this VWPA restriction is not applicable to cases involving restitution ordered pursuant to the Federal Probation Act, 18 U.S.C. § 3651 (repealed eff. Nov. 1, 1987) (FPA). See United States v. Hunt, 940 F.2d 130, 131 (5th Cir.1991). Chaney’s offenses were committed while the Probation Act was in effect, and the record is not conclusive as to whether the district court ordered restitution under the Probation Act or under the VWPA. As stated in United States v. Cook, 952 F.2d 1262, 1264 (10th Cir.1991), “where both statutes authorize restitution, district courts should specify whether the FPA or VWPA governs.” When district courts fail to do so, “unless a clear intention appears to the contrary, we will assume restitution orders are made pursuant to the broader provisions of the VWPA.” Id., citing United States v. Padgett, 892 F.2d 445, 448 (6th Cir.1989); see United States v. Kress, 944 F.2d 155, 158 (3d Cir.1991) (“Where the district court fails to specify whether the FPA or the VWPA authorized its actions, the general rule is that the VWPA controls.”), cert. denied, — U.S. -, 112 S.Ct. 1163, 117 L.Ed.2d 410 (1992). Restitution under the VWPA is a criminal penalty and a component of the defendant’s sentence. See United States v. Snider, 957 F.2d 703, 706-07 (9th Cir. 1992) (“Restitution imposed as a component of the defendant’s sentence is a criminal penalty, not a civil remedy.”). Therefore, when the legality of a restitution award is questioned, we review that award de novo. See United States v. Badaracco, 954 F.2d 928, 942 (3d Cir.1992) (stating that review of restitution order is bifurcated: plenary review over whether the award is permitted under law is followed by review of the particular award for abuse of discretion); United States" }, { "docid": "13353239", "title": "", "text": "by the Court.” Rodgers v. United States, 332 U.S. 371, 373, 68 S.Ct. 5, 92 L.Ed. 3 (1947). The MVRA’s purpose of compensating victims for their losses is advanced by allowing prejudgment interest, the “essential rationale” for which “is to ensure that an injured party is fully compensated for its loss.” City of Milwaukee v. Cement Div., Nat’l Gypsum Co., 515 U.S. 189, 195, 115 S.Ct. 2091, 132 L.Ed.2d 148 (1995). Recognizing that a victim’s losses may change in value between the date of the loss and the date of sentencing, the MVRA mandates that the higher of those figures be used for restitution purposes. Money is not static, and companies do not store their reserves under mattresses for safekeeping. The rule urged by Qurashi would presume that victims do precisely that, placing on them the burden of showing how they would have used the lost funds in order to justify an award of prejudgment interest. The MVRA does not impose such a requirement. We hold that the MVRA allows a sentencing court to award prejudgment interest in a criminal restitution order to ensure compensation “in the full amount of each victim’s losses.” 18 U.S.C. § 3664(f)(1)(A). The district court therefore acted within its discretion in awarding prejudgment interest on funds that it determined MetLife and New York Life would have otherwise put to productive use. This outcome is consistent with the decisions of our sister circuits, which have approved the inclusion of prejudgment interest in restitution orders under the MVRA and its precursor, the Victim and Witness Protection Act (“VWPA”). See, e.g., United States v. Gordon, 393 F.3d 1044, 1059 (9th Cir.2004); United States v. Shepard, 269 F.3d 884, 886 (7th Cir.2001); Gov’t of the Virgin Islands v. Davis, 43 F.3d 41, 47 (3d Cir.1994); United States v. Hoyle, 33 F.3d 415, 420 (4th Cir.1994); United States v. Patty, 992 F.2d 1045, 1050 (10th Cir.1993); United States v. Rochester, 898 F.2d 971, 983 (5th Cir.1990). Gordon sensibly suggests a rule that prejudgment interest be awarded unless evidence indicates the victim would not have put the funds to productive use." }, { "docid": "15898758", "title": "", "text": "Kelly v. Robinson, 479 U.S. 36, 46-49, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986). Although restitution is designed for the benefit of the victim, he has no control over the amount to be awarded, nor whether it will be directed. Id. at 52, 107 S.Ct. 353. We followed Kelly in another bankruptcy discharge case. In re Rashid, 210 F.3d 201 (3d Cir.2000). Kelly, however, was not an abatement case. See United States v. Asset, 990 F.2d 208, 213 n. 3 (5th Cir.1993). In another context, the Supreme Court cited the goal of the Victim and Witness Protection Act as compensating victims of crimes. Hughey v. United States, 495 U.S. 411, 420, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990) (overruled on other grounds). We have held that the purpose of restitution under the Mandatory Victim Reparation Act is to compensate victims for their losses and to make them whole. United States v. Diaz, 245 F.3d 294, 312 (3d Cir.2001); see also United States v. Mustafa, 238 F.3d 485, 490 (3d Cir.2001) (fine is a form of punishment, whereas restitution is merely intended to compensate victims); Gov’t of the Virgin Islands v. Davis, 43 F.3d 41, 47 (3d Cir.1994) (restitution is compensatory rather than punitive); United States v. Kress, 944 F.2d 155, 159 (3d Cir.1991) (restitution differs from fine or penalty and is intended to compensate victims). On the other hand, in United States v. Edwards, 162 F.3d 87 (3d Cir.1998), we concluded that for ex post facto purposes, restitution under the Mandatory Victim Restitution Act is a form of penalty. 162 F.3d at 91-92; see also United States v. Sleight, 808 F.2d 1012, 1020-21 (3d Cir.1987) (prohibiting prejudgment interest because purpose of restitution under Probation Act is to make victim whole; order is imposed as part of sentencing process and remains inherently a criminal penalty). The application of the ex post facto clause to restitution orders has divided the Courts of Appeals. See United States v. Schulte, 264 F.3d 656, 661-62 (6th Cir.2001) (collecting cases). A survey of case law illustrates that restitution is best classified as compensatory, punitive, or a" }, { "docid": "22856578", "title": "", "text": "have held that the applicable prejudgment interest rate is the one in effect immediately prior to the date of the wrongful conduct which caused a plaintiff’s loss. See Anzalone (I), 760 F.2d at 992-93. Though the district court arguably should have used the rate in effect at the time of Gordon’s misappropriations of the Terayon shares, the court’s use of the rale in effect on March 6, 2001 is consistent with its view that the harm of Gordon's wrongdoing occurred during the liquidation period. Moreover, Gordon does not raise this argument on appeal. The district court therefore did not abuse its discretion in applying the interest rate in effect on the date of Gordon's wrongful conduct for all assets excluding the Teray-on shares, and on March 6, 2001 for the Terayon shares. . The contrary cases cited by the dissent, United States v. Rico Industries, Inc., 854 F.2d 710 (5th Cir.1988), and United States v. Sleight, 808 F.2d 1012 (3d Cir.1987), interpreted the Federal Probation Act rather than the VWPA or MVRA. See dissent at 1063 & n. 4. In that context, the Sleight court noted that while “one purpose of restitution under the Federal Probation Act is to make the victim whole, restitution ... remains inherently a criminal penalty.” 808 F.2d at 1020. The court accordingly applied the “general rule that a criminal penalty does not bear interest.” Id. It is apparent that our court and other courts have not applied that rule to restitution under the VWPA or MVRA, since prejudgment interest has been awarded in at least some instances, as the dissent acknowledges. In contrast to the Federal Probation Act, making the victim whole is not “one purpose” of restitution under the MVRA, but rather its “primary and overarching goal.” See Simmonds, 235 F.3d at 831. In this context, which we regard as restitutionary rather than punitive, see supra note 6, Congress’s aim “to fully compensate these victims for their losses,” Simmonds, 235 F.3d at 831, is best served by awarding prejudgment interest where the victim's actual losses include lost opportunities to use properly for productive pur" }, { "docid": "22856588", "title": "", "text": "instrument when it was taken. See, e.g., United States v. Morgan, 376 F.3d 1002, 1014 (9th Cir.2004) (contractual interest on credit card charges); United States v. Smith, 944 F.2d 618, 620, 626 (9th Cir. 1991) (defendant falsified loan applications and subsequently defaulted on inadequately secured loans); see also United States v. Shepard, 269 F.3d 884, 886 (7th Cir.2001) (money stolen from interest-bearing account); Virgin Islands v. Davis, 43 F.3d 41, 46-47 (3rd Cir.1994) (fraudulently acquired certificates of deposit); United States v. Hoyle, 33 F.3d 415, 416-18, 420 (4th Cir.1994) (student loan fraud); United States v. Patty, 992 F.2d 1045, 1047-48, 1049-50 (10th Cir. 1993) (bank loan fraud); United States v. Rochester, 898 F.2d 971, 982-83 (5th Cir. 1990) (restitution included outstanding balance and accrued interest on bank loan); cf. United States v. Simpson, 8 F.3d 546, 548, 552 (7th Cir.1993) (affirming a restitution award that included interest on some victims’ losses from fraudulent investment schemes where swindler had, inter alia, misrepresented guaranteed rate of return); United States v. Stephens, 374 F.3d 867, 869-70 (9th Cir.2004) (restitution order for past due child support payments may include prejudgment interest where state law mandates that interest be paid on delinquent child support obligations). Indeed, where the misappropriated property, although cash or cash equivalent, was not interest bearing property, other circuits have determined that restitution does not properly include prejudgment interest because “a criminal penalty does not bear interest,” and the courts were hesitant to infer additional criminal penalties beyond those specifically provided by statute. See United States v. Rico Indus., Inc., 854 F.2d 710, 711-12, 714 (5th Cir.1988) (reversing order to pay prejudgment interest on amount ordered to be paid as restitution for criminal kickback scheme); United States v. Sleight, 808 F.2d 1012, 1014-15, 1020 (3d Cir.1987) (same). In a true money-at-interest case, the interest can be said to be a part of the property taken on the date of the loss itself, or, at worst, on the date of sentencing. Either the miscreant has agreed to pay interest, or the funds from which the money were taken did pay interest. At any" }, { "docid": "11507853", "title": "", "text": "for which any testimony appeared. After considering post-hearing briefs filed by the parties, the district court issued a written memorandum on December 1, 1994, ordering Henoud to pay restitution in the amount of $24,032.22 to C & P, AT & T, Sprint, Metro Media and Allnet. Henoud filed a timely notice of appeal to this court. II. A. Restitution Order In general, criminal restitution orders should not be overturned in the absence of an abuse of discretion. United States v. Hoyle, 33 F.3d 415, 420 (4th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 949, 130 L.Ed.2d 892 (1995); United States v. Bailey, 975 F.2d 1028, 1031 (4th Cir.1992). We have repeatedly observed that a trial court’s discretion in ordering restitution “is circumscribed by the procedural and substantive protections” in the Victim and Witness Protection Act (“VWPA”), 18 U.S.C. §§ 3663, 3664. Bailey, 975 F.2d at 1031; United States v. Bruchey, 810 F.2d 456, 458 (4th Cir.1987). Here, Henoud has challenged the restitution order both as to the victims named and the amount awarded. We must review each aspect of the district court’s order for an abuse of discretion. Bailey, 975 F.2d at 1033. Under the VWPA, a district court may order a convicted criminal to pay restitution to “any victim” of his offense. 18 U.S.C. § 3663(a)(1). In determining the amount of restitution to be paid, the court “shall consider the amount of the loss sustained by any victim as a result of the offense ... and other factors as the court deems appropriate.” 18 U.S.C. § 3664(a). In general, restitution pursuant to the VWPA is permissible “only for the loss caused by the specific conduct that is the basis of the offense of conviction.” Hughey v. United States, 495 U.S. 411, 413, 110 S.Ct. 1979, 1981, 109 L.Ed.2d 408 (1990). A proper restitution award must be limited to the losses caused by the specific conduct of which the defendant is convicted. While not necessarily fixed by the description given in the corresponding charge itself, the award may not include losses unrelated to the count of conviction. Bailey, 975" }, { "docid": "12601994", "title": "", "text": "not limited to the offenses specified in the VWPA and MVRA, restitution otherwise is to be ordered “under section 3556.” 18 U.S.C. § 3563(b)(2). Section 3556 provides for orders of restitution in accordance with the VWPA and MVRA. The VWPA provides that “[t]he court, when sentencing a defendant convicted of an offense [under listed titles or statutes] may order ... restitution to any victim of such offense.” 18 U.S.C. § 3663(a)(1)(A) (emphasis added). The language of the MVRA is equally singular: “when sentencing a defendant convicted of an offense described in subsection (c), the court shall order ... that the defendant make restitution to the victim of the offense.” 18 U.S.C. § 3663A(a)(l) (emphasis added).' The natural reading of these provisions is that restitution is authorized for the offense of conviction and not for other related offenses of which the defendant was not convicted. It is no surprise, therefore, that in Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), the Supreme Court held that federal courts may order restitution under the VWPA “only for the loss caused by the specific conduct that is the basis of the offense of conviction.” Id. at 413, 110 S.Ct. 1979. Subsequent amendments to the VWPA ereated an exception to Hughey when the crime of conviction includes as an element a scheme, conspiracy or pattern of criminal activity (which the parties agree is not the case here), but otherwise Hughey’s limitation remains in effect. United States v. Lawrence, 189 F.3d 838, 846 (9th Cir.1999). Although we have not yet applied the rule of Hughey to awards of restitution ordered as a condition of supervised release, there is no reason why it does not apply. As the Second Circuit Court of Appeals recently observed, “every other circuit that has considered this question has applied Hughey to awards of restitution ... under . 18 U.S.C. §§ 3583(d), 3563(b)(2).” United States v. Varrone, 554 F.3d 327, 334 (2d Cir.2009) (citing United States v. Frith, 461 F.3d 914, 920 (7th Cir.2006); United States v. Romines, 204 F.3d 1067, 1069 (11th Cir.2000); Gall v." }, { "docid": "22856566", "title": "", "text": "award for this analysis, finding that the evidence “does not support fully the extraordinary expense associated with Cisco’s attempt to recover data from Defendant’s laptop computer,” and made other reductions, finding that “several categories for which expenses are claimed are at least to some extent overlapping or duplicative.” Indeed, the district court ultimately ordered reimbursement for $1,038,477 of the total of $1,268,022 for which Cisco had sought reimbursement. We therefore conclude that the district court did not abuse its discretion in awarding restitution for Cisco’s investigation costs. 4. Prejudgment Interest The district court awarded prejudgement interest on all assets, both cash and stock. For all assets excluding the Terayon shares, the district court set the interest accrual date as the date the assets were taken by Gordon, and the in terest termination date as July 30, 2002. The district court applied the prevailing government interest rate in effect on the date of the misappropriation. For the Terayon shares, the district court used a slightly different calculation method. Because the district court concluded that Cisco’s Terayon loss occurred between July 21, 1999 and March 6, 2001, when Cisco had completed liquidating the Terayon shares and its losses became “fixed,” the court set the accrual date for prejudgment interest as March 6, 2001. The district court also set the interest termination date as July 30, 2002, using the prevailing government interest rate in effect on March 6, 2001. Though the MVRA is silent on the issue of prejudgment interest, we have held that the VWPA “authorizes restitution for a victim’s ‘actual losses’ ” and that “[foregone interest is one aspect of the victim’s actual loss.” United States v. Smith, 944 F.2d 618, 626 (9th Cir.1991) (interpreting the VWPA) (emphasis added). A number of other circuits have likewise held that restitution under the MVRA or the VWPA may include prejudgment interest. See United States v. Shepard, 269 F.3d 884, 886 (7th Cir.2001) (construing Government of Virgin Islands v. Davis, 43 F.3d 41, 47 (3d Cir.1994)) (construing VWPA); United States v. Hoyle, 33 F.3d 415, 420 (4th Cir.1994) (construing VWPA); United States v. Patty," }, { "docid": "22856567", "title": "", "text": "loss occurred between July 21, 1999 and March 6, 2001, when Cisco had completed liquidating the Terayon shares and its losses became “fixed,” the court set the accrual date for prejudgment interest as March 6, 2001. The district court also set the interest termination date as July 30, 2002, using the prevailing government interest rate in effect on March 6, 2001. Though the MVRA is silent on the issue of prejudgment interest, we have held that the VWPA “authorizes restitution for a victim’s ‘actual losses’ ” and that “[foregone interest is one aspect of the victim’s actual loss.” United States v. Smith, 944 F.2d 618, 626 (9th Cir.1991) (interpreting the VWPA) (emphasis added). A number of other circuits have likewise held that restitution under the MVRA or the VWPA may include prejudgment interest. See United States v. Shepard, 269 F.3d 884, 886 (7th Cir.2001) (construing Government of Virgin Islands v. Davis, 43 F.3d 41, 47 (3d Cir.1994)) (construing VWPA); United States v. Hoyle, 33 F.3d 415, 420 (4th Cir.1994) (construing VWPA); United States v. Patty, 992 F.2d 1045, 1050 (10th Cir.1993) (construing VWPA); United States v. Rochester, 898 F.2d 971, 983 (5th Cir.1990) (construing VWPA). Gordon first argues that an award of prejudgment interest is unwarranted in this case because it does not constitute an “actual loss” to Cisco, who, unlike the victim in Smith, is not a “financial institution” that has a “tangible expectation” to earn interest on its cash reserves. Additionally, Gordon contends that if interest should apply to any of the securities, it should only apply to the Terayon shares, because by Cisco’s admission, the other securities would have been held had Gordon not embezzled them. We consider each argument in turn. Gordon’s first argument is unavailing. “Prejudgment interest reflects the victim’s loss due to his inability to use the money for a productive purpose, and is therefore necessary to make the victim whole.” Patty, 992 F.2d at 1050 (emphasis added). In Smith we held that this proposition is particularly true when the victim is a financial institution because “[foregone interest is one aspect of the victim’s" }, { "docid": "22105600", "title": "", "text": "an indeterminate system. Although it makes the imposition of restitution mandatory for a defendant convicted of a felony covered by the MVRA, see 18 U.S.C. § 3663A(a)(l) (the court “shall,” unless infeasible or unduly burdensome to the sentencing process, see id. § 3663A(c)(3), order restitution to the victims of the offense), the MVRA fixes no range of permissible restitutionary amounts and sets no maximum amount of restitution that the court may order. Thus, we conclude that the Booker-Blakely principle that jury findings, or admissions by the defendant, establish the “maximum” authorized punishment has no application to MVRA orders of restitution. We note that thus far all of our Sister Circuits that have considered similar challenges to restitution orders entered under the MVRA — or under the Victim and Witness Protection Act (“VWPA”), 18 U.S.C. § 3663(a)(1)(A), pursuant to which the sentencing court “may” order restitution to victims of offenses not covered by the MVRA — have concluded that Booker does not apply. Most recently, the Third Circuit, sitting en banc, has concluded that “restitution under the VWPA and the MVRA is not the type of criminal punishment that evokes Sixth Amendment protection under Booker,” and hence that “the amount a defendant must restore to his or her victim need not be admitted by the defendant or proved to a jury beyond a reasonable doubt.” United States v. Leahy, 438 F.3d 328, 331 (3d Cir.2006) (en banc). Dissenting members of the court argued that “[a] finding of loss necessarily is a condition precedent to an order of restitution, and under [the MVRA and VWPA], it is the judge who makes the finding,” and that “the imposition of this additional criminal penalty based on a fact not found by a jury violates the Sixth Amendment.” Id. at 348 (McKee, J., concurring in part and dissenting in part). The Leahy majority, however, reasoned that, as to a defendant convicted of certain specified offenses, the VWPA and the MVRA authorize an order of restitution “as a matter of course ‘in the full amount of each victim’s losses.’ 18 U.S.C. § 3664(f)(1)(A),” and “the full" }, { "docid": "11699829", "title": "", "text": "offenses of conviction implicated in this motion would fall under the VWPA, which makes restitution discretionary, rather than the mandatory MVRA restitution statute. It would be an abuse of discretion for a district court to simply ignore the potential for restitution without considering whether there are potential victims and whether the court should exercise its discretion to order restitution where the offenses of conviction are within the VWPA. See supra nn. 41-43 and accompanying text. If there are CVRA “crime victims” here, they would be entitled to be at least considered for a discretionary order of restitution in the full amount of each “victim’s” losses under the VWPA. In this analysis, all co-conspirators found guilty of the offense are criminally liable to all “victims” for restitution. The VWPA permits this award to be joint and several, or imposed in different amounts on different defendants. Those factual issues must be determined in consideration of each defendant’s current and future ability to pay. See supra Sec. I.D. Also, whether restitution is awarded under the VWPA or the MVRA, the court must determine the payment schedule under the statutory formula set forth in 18 U.S.C. § 3664(f)(2). See supra Sec. I.D. The majority of the federal circuits, including the Third Circuit, has ruled that restitution, when ordered in connection with a criminal conviction, is a criminal, rather than a civil, penalty. Leahy, 438 F.3d at 333-35. Our Court of Appeals, in a divided en banc decision in Leahy, has also joined the majority of federal circuits in holding that a restitution order under the VWPA or the MVRA does not violate a defendant’s Sixth Amendment right to trial by jury as articulated in Supreme Court precedent beginning with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and culminating in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Id. at 335-39. Leahy was actually three criminal appeals that were combined for en banc determination of whether district courts’ orders of forfeiture and restitution violated the Sixth Amendment right to trial by jury." }, { "docid": "13353240", "title": "", "text": "prejudgment interest in a criminal restitution order to ensure compensation “in the full amount of each victim’s losses.” 18 U.S.C. § 3664(f)(1)(A). The district court therefore acted within its discretion in awarding prejudgment interest on funds that it determined MetLife and New York Life would have otherwise put to productive use. This outcome is consistent with the decisions of our sister circuits, which have approved the inclusion of prejudgment interest in restitution orders under the MVRA and its precursor, the Victim and Witness Protection Act (“VWPA”). See, e.g., United States v. Gordon, 393 F.3d 1044, 1059 (9th Cir.2004); United States v. Shepard, 269 F.3d 884, 886 (7th Cir.2001); Gov’t of the Virgin Islands v. Davis, 43 F.3d 41, 47 (3d Cir.1994); United States v. Hoyle, 33 F.3d 415, 420 (4th Cir.1994); United States v. Patty, 992 F.2d 1045, 1050 (10th Cir.1993); United States v. Rochester, 898 F.2d 971, 983 (5th Cir.1990). Gordon sensibly suggests a rule that prejudgment interest be awarded unless evidence indicates the victim would not have put the funds to productive use. The Ninth Circuit upheld the district court’s award of prejudgment interest for embezzled cash and shares of stock as to which Cisco Systems, the victimized corporation, had “completely liquidated” its other holdings before discovering the fraud. Gordon, 393 F.3d at 1059. Regarding “interest” as “simply a proxy for a lost opportunity,” the Ninth Circuit found that awarding “prejudgment interest reflects the productive purposes for which a profit maximizing entity like Cisco uses its cash reserves,” even if the company “would not necessarily have placed its stock proceeds in an interest bearing account” absent the embezzlement. Id. (internal quotation marks omitted). However, the Ninth Circuit also found that the district court abused its discretion in awarding prejudgment interest for securities that Cisco had “no intention of completely liquidating.” Id. Prejudgment interest on such securities could not “constitute an actual loss to the victim,” because it would be “too speculative to conclude that Cisco would have liquidated these securities and placed the cash proceeds in an interest bearing account or used them for some other productive purpose.”" }, { "docid": "17595627", "title": "", "text": "make restitution to the victim of the offense or, if the victim is deceased, to the victim’s estate.... For the purposes of this section, the term “victim” means a person directly and proximately harmed as a result of an offense for which restitution may be ordered.... 18 U.S.C. § 3663A(a)(l),(2) (emphasis added). Courts have no inherent power to order restitution; they may only do so as authorized by statute. Nichols, 169 F.3d at 1278. Interpreting the Victim and Witness Protection Act of 1982 (VWPA), we held that restitution “is authorized only for losses caused by conduct underlying the offense of conviction.” United States v. Brewer, 983 F.2d 181, 183-84 (10th Cir.1993) (citing Hughey v. United States, 495 U.S. 411, 420, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990)). In Hughey, the defendant was indicted for multiple counts of fraudulent credit card use but pled guilty to only one count. 495 U.S. at 413, 110 S.Ct. 1979. The Supreme Court held that the defendant could be ordered to pay restitution under the VWPA only for the amount of loss resulting from the count to which he pled guilty. Id. at 422, 110 S.Ct. 1979. The MVRA, which amended the VWPA in 1996, did not change the general rule that restitution may only be oidered for losses caused by the offense of conviction. In only two cases does the MVRA authorize restitution to be paid to someone other than the victim (or his estate) of the offense of conviction. The first is where the criminal conduct involves a “scheme, conspiracy, or pattern of criminal activity.” 18 U.S.C. § 3663A(a)(2); see also id. (extending restitution in such cases to “any person directly harmed by the defendant’s criminal conduct”); United States v. Fogg, 409 F.3d 1022, 1028 (8th Cir.2005) (“Unless the charged offense has a scheme, conspiracy, or pattern of criminal activity as an element, ... the restitution order may only cover losses from the specific offense for which the defendant was indicted and convicted.”). In this case, the offense of conviction does not contain as an element a scheme, conspiracy, or pattern of criminal" }, { "docid": "11699833", "title": "", "text": "of loss “merely give[s] definite shape to the restitution penalty born out of the conviction,” so there can be no Booker violation in awarding restitution to each victim. Leahy, 438 F.3d at 337. The Leahy majority also expressed that “for purposes of sentencing under Apprendi and Blakely, whether a fact is labeled a sentencing fact or an element of the offense is of no consequence” because “the relevant ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose based solely on facts reflected in the jury verdict or admitted by the defendant.” Id. at 336 (citing Blakely, 542 U.S. at 303-04, 124 S.Ct. 2531). Leahy teaches that a restitution order does not create Sixth Amendment problems under Booker because criminal liability for restitution is based only on the “facts reflected in the jury verdict or admitted by the defendant.” Id. Leahy dealt with whether the district court could, consistent with the Sixth Amendment right to jury trial, determine the amount of restitution. See id. at 335-38. The convictions under review in Leahy presented no dispute as to whether there were statutory “victims” under the VWPA and the MVRA, or how to identify those “victims” for purposes of making restitution determinations under those statutes. See id. at 330. But the rationale of Leahy appears equally applicable where a court must make findings on disputed issues of “victim” status itself. This is necessary whether we apply the CVRA or the VWPA because a finding of CVRA “crime victim” status for the offenses of conviction here, arising as they do out of Title 18 of the United States Code, will automatically create “victim” status under the VWPA for all those so identified by this Court. We believe that where, as here, the Court’s ruling on a disputed issue of “crime victim” status under the CVRA will automatically create “victim” status for purposes of restitution under the VWPA or the MVRA, the Court must avoid creating a Sixth Amendment Booker problem. The way to do that, as explained in Leahy, is to base the Court’s ruling “solely on facts reflected in" }, { "docid": "18079100", "title": "", "text": "cases. Id. 538-39 (Citing United States v. Black, 125 F.3d 454, 467 (7th Cir.1997) (restitution under the Child Support Recovery Act of 1992 was not punishment); United States v. Hampshire, 95 F.3d 999, 1006 (10th Cir.1996) (same); United States v. Arutunoff, 1 F.3d 1112, 1121 (10th Cir.1993) (The VWPA’s purpose is not to punish defendants but to make victims whole to the extent possible); United States v. Rochester, 898 F.2d 971, 983 (5th Cir.1990) (same)); (3) The nature of the restitution order authorized by the VWPA or the MVRA is not a punitive sanction when analyzed under the factors set forth by Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) for deciding whether a statutory scheme was so punitive in purpose or effect as to transform what was intended as a civil remedy into a criminal penalty. See Newman, 144 F.3d at 540 (citing Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)). Accord: United States v. Nichols, 169 F.3d 1255 (10th Cir.1999); United States v. Arutunoff, 1 F.3d 1112, 1121 (10th Cir.1993)(“The VWPA’s purpose is not to punish defendants or to provide a windfall for crime victims but rather to ensure that victims, to the greatest extent possible, are made whole for their losses.”)(citing United States v. Rochester, 898 F.2d 971, 983 (5th Cir.1990)). For similar reasons, the majority of circuits that have addressed whether MVRA or VWPA restitution orders are abatable, decided that, because such orders are compensatory rather than punitive, the death of the defendant during appeal does not cause them to abate. See United States v. Christopher, 273 F.3d 294, 298 (3rd Cir.2001) (“To absolve the estate from refunding the fruits of the wrongdoing would grant an undeserved windfall ... abatement should not apply to the order of restitution in this case.... ”); United States v. Mmahat, supra; United States v. Asset, supra; United States v. Johnson, 1991 WL 131892, 1991 U.S.App. LEXIS 17204 (6th Cir.1991) (unpublished) (same); United States v. Dudley," }, { "docid": "11507854", "title": "", "text": "must review each aspect of the district court’s order for an abuse of discretion. Bailey, 975 F.2d at 1033. Under the VWPA, a district court may order a convicted criminal to pay restitution to “any victim” of his offense. 18 U.S.C. § 3663(a)(1). In determining the amount of restitution to be paid, the court “shall consider the amount of the loss sustained by any victim as a result of the offense ... and other factors as the court deems appropriate.” 18 U.S.C. § 3664(a). In general, restitution pursuant to the VWPA is permissible “only for the loss caused by the specific conduct that is the basis of the offense of conviction.” Hughey v. United States, 495 U.S. 411, 413, 110 S.Ct. 1979, 1981, 109 L.Ed.2d 408 (1990). A proper restitution award must be limited to the losses caused by the specific conduct of which the defendant is convicted. While not necessarily fixed by the description given in the corresponding charge itself, the award may not include losses unrelated to the count of conviction. Bailey, 975 F.2d at 1033-34 (observing that courts have applied Hughey to reverse improper restitution orders “mainly where the trial court orders restitution for acts of which the defendant was not convicted”); accord United States v. Jackson, 982 F.2d 1279, 1283 (9th Cir.1992). In 1990, Congress added to the VWPA a broad description of victims which provides: For the purposes of restitution, a victim of an offense that involves as an element a scheme, a conspiracy, or a pattern of criminal activity means any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern. 18 U.S.C. § 3663(a)(2). The amendment is widely viewed as partially overruling Hughey ’s restrictive interpretation of the VWPA and expanding district courts’ authority to grant restitution. See United States v. Kones, 77 F.3d 66, 69 (3rd Cir.1996); United States v. Broughton-Jones, 71 F.3d 1143, 1147 n. 1 (4th Cir.1995). The majority view is that the 1990 amendment “did have a substantive impact on the amount of restitution a court could order when a defendant is" }, { "docid": "22856587", "title": "", "text": "wish to engage in the complex exercise approved of here will have to try it out first — entertain it in order to see if it can be discretionarily rejected. He may even have to consider other more complex possibilities. That, again, is far from calculating the values on one of the two easily determined discreet dates selected by Congress. In addition, I see no basis for considering prejudgment interest to be a part of criminal restitution where an item of property was taken, and we are referred to no case where that has been done. In fact, absent other facts, it is rank speculation to say that if a person had the asset, whatever it was, he would have kept it, or earned interest on it, or earned interest on the equivalent of its value. In fact, every similar case that I have discovered deals with a situation where the property taken was “money,” and that money was being loaned at a given interest rate or was contained in an interest bearing account or instrument when it was taken. See, e.g., United States v. Morgan, 376 F.3d 1002, 1014 (9th Cir.2004) (contractual interest on credit card charges); United States v. Smith, 944 F.2d 618, 620, 626 (9th Cir. 1991) (defendant falsified loan applications and subsequently defaulted on inadequately secured loans); see also United States v. Shepard, 269 F.3d 884, 886 (7th Cir.2001) (money stolen from interest-bearing account); Virgin Islands v. Davis, 43 F.3d 41, 46-47 (3rd Cir.1994) (fraudulently acquired certificates of deposit); United States v. Hoyle, 33 F.3d 415, 416-18, 420 (4th Cir.1994) (student loan fraud); United States v. Patty, 992 F.2d 1045, 1047-48, 1049-50 (10th Cir. 1993) (bank loan fraud); United States v. Rochester, 898 F.2d 971, 982-83 (5th Cir. 1990) (restitution included outstanding balance and accrued interest on bank loan); cf. United States v. Simpson, 8 F.3d 546, 548, 552 (7th Cir.1993) (affirming a restitution award that included interest on some victims’ losses from fraudulent investment schemes where swindler had, inter alia, misrepresented guaranteed rate of return); United States v. Stephens, 374 F.3d 867, 869-70 (9th Cir.2004)" }, { "docid": "18079099", "title": "", "text": "order of restitution required the defendant to pay the victims’ losses not to the victims but to the government for its own use and benefit; then it would be a fine, which is, of course, traditionally a criminal remedy. Bach, 172 F.3d at 522-23 (internal citations omitted)(emphasis added). The Seventh Circuit’s decision in United States v. Newman, 144 F.3d 531 (7th Cir.1998), provides further analysis demonstrating that restitution under the MVRA does not qualify as criminal punishment. (1) “Restitution has traditionally been viewed as an equitable device for restoring victims to the position they had occupied prior to a wrongdoer’s actions.” 144 F.3d at 538 (citing Restatement of Restitution (introductory note) (1937)). “It is separate and distinct from any punishment visited upon the wrongdoer and operates to ensure that a wrongdoer does not procure any benefit through his conduct at others’ expense.” Id. (Citing 1 George E. Palmer, The Law of Restitution § 1.1, at 5 (1978)); (2) The non-punitive character of restitution had been recognized by the Seventh Circuit and other courts in previous cases. Id. 538-39 (Citing United States v. Black, 125 F.3d 454, 467 (7th Cir.1997) (restitution under the Child Support Recovery Act of 1992 was not punishment); United States v. Hampshire, 95 F.3d 999, 1006 (10th Cir.1996) (same); United States v. Arutunoff, 1 F.3d 1112, 1121 (10th Cir.1993) (The VWPA’s purpose is not to punish defendants but to make victims whole to the extent possible); United States v. Rochester, 898 F.2d 971, 983 (5th Cir.1990) (same)); (3) The nature of the restitution order authorized by the VWPA or the MVRA is not a punitive sanction when analyzed under the factors set forth by Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) for deciding whether a statutory scheme was so punitive in purpose or effect as to transform what was intended as a civil remedy into a criminal penalty. See Newman, 144 F.3d at 540 (citing Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d" }, { "docid": "22105601", "title": "", "text": "the VWPA and the MVRA is not the type of criminal punishment that evokes Sixth Amendment protection under Booker,” and hence that “the amount a defendant must restore to his or her victim need not be admitted by the defendant or proved to a jury beyond a reasonable doubt.” United States v. Leahy, 438 F.3d 328, 331 (3d Cir.2006) (en banc). Dissenting members of the court argued that “[a] finding of loss necessarily is a condition precedent to an order of restitution, and under [the MVRA and VWPA], it is the judge who makes the finding,” and that “the imposition of this additional criminal penalty based on a fact not found by a jury violates the Sixth Amendment.” Id. at 348 (McKee, J., concurring in part and dissenting in part). The Leahy majority, however, reasoned that, as to a defendant convicted of certain specified offenses, the VWPA and the MVRA authorize an order of restitution “as a matter of course ‘in the full amount of each victim’s losses.’ 18 U.S.C. § 3664(f)(1)(A),” and “the full amount of loss” is therefore the amount of restitution that is “authorized by a guilty plea or jury verdict.” United States v. Leahy, 438 F.3d at 337. Thus, the court concluded that, although judicial fact-finding determines what that full amount is, the sentencing court is “by no means imposing a punishment beyond that authorized by jury-found or admitted facts,” or “beyond the ‘statutory maximum’ as that term has evolved in the Supreme Court’s Sixth Amendment jurisprudence.” Id. (“[W]e see the conviction as authorizing restitution of a specific sum, namely the ‘full amount of each victim’s loss’; when the court determines the amount of loss, it is merely giving definite shape to the restitution penalty born out of the conviction.”); see also id. at 338 (“[E]ven though restitution is a criminal punishment, it does not transform a defendant’s punishment into something more severe than that authorized by pleading to, or being convicted of, the crime charged.”). Accord United States v. Miller, 419 F.3d 791, 792-93 (8th Cir.) (“the preponderance-of-evidence burden in [MVRA] restitution cases is unchanged" }, { "docid": "15767354", "title": "", "text": "18 U.S.C. § 3612(f). Interest is computed at a rate equal to the weekly average 1-year constant maturity Treasury yield. 18 U.S.C. § 3612(f)(2). The court may-waive interest, limit interest to a specific dollar amount, or limit interest to a specific period of time during which interest- accrues. 18 U.S.C. § 3612(f)(3). The Attorney General also may waive interest. 18 U.S.C. § 3612(h). Prior to the effective date of the MVRA on April 24, 1996, the Victim Witness Pro tection Act (VWPA), 18 U.S.C. §§ 3663-3664, guided the courts imposing restitution in criminal cases.. The VWPA said nothing about interest on restitution, but courts held that interest could be imposed on restitution pursuant to the VWPA. See, e.g., Government of Virgin Islands v. Davis, 43 F.3d 41, 47 (3d Cir.1994) (affirming district court’s inclusion of prejudgment interest in restitution order under VWPA); United States v. Kress, 944 F.2d 155, 160 (3d Cir.1991) (holding that post-judgment interest on restitution order was implicitly authorized by the VWPA); United States v. Smith, 944 F.2d 618, 626 (9th Cir.1991); United States v. Rochester, 898 F.2d 971, 983 (5th Cir.1990) (holding that although the VWPA was silent on the issue of interest, “both pre- and postjudgment interest may be awarded under the VWPA”). Because Johnson pleaded guilty and was sentenced after April 24,1996, the government argues that the MVRA applies to her case, thus mandating payment of interest on the entire amount of restitution ordered because the interest was not explicitly waived. Johnson asserts that applying the MVRA to her case violates the Ex Post Facto Clause because it increases the punishment for preenactment conduct. The government responds that there is no Ex Post Facto Clause violation because part of Johnson’s crime occurred within the month following the effective date of the MVRA. “The ex post facto clause proscribes application of a law that changes punishment in a manner that inflicts greater punishment than the law annexed to the crime at the time of its commission.” United States v. Cooper, 35 F.3d 1248, 1250 (8th Cir.1994) cert. granted, judgment vacated, 514 U.S. 1094, 115 S.Ct." } ]

[ { "docid": "22671542", "title": "", "text": "been questioned at home, Chebchoub testified that they have never been arrested or taken into custody. In October 1995 Chebchoub applied for relief from deportation proceedings, claiming persecution by the Moroccan government on the basis of political opinion, imputed political opinion, and social group. In a decision dated May 14, 1997, the IJ denied Chebchoub’s application for asylum and withholding of deportation based upon an adverse credibility finding, concluding that Chebchoub’s testimony was so “inconsistent, vague and implausible as to indicate that the testimony must have been fraudulent.” Chebchoub appealed to the Board, which conducted a de novo review of the record. Citing credibility concerns and a failure to supply corroborating evidence, the Board dismissed Chebchoub’s appeal because he failed to meet his burden of establishing eligibility for asylum or withholding of deportation. II After a Board’s de novo examination of the record, we review the Board’s factual determinations—including its credibility findings—and its determination of an applicant’s eligibility for asylum, for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The substantial evidence standard is highly deferential to the Board, and for us to overturn the Board’s decision, Chebchoub must show that the evidence compels reversal. Pedro-Mateo, 224 F.3d at 1150, citing Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812. Thus, Chebchoub cannot prevail unless he demonstrates that any reasonable factfinder would necessarily conclude that he is eligible for relief from deportation. See Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996) (en banc). Chebchoub bears the burden of establishing his eligibility for asylum and withholding of deportation. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997). To be eligible for asylum, Chebchoub must demonstrate that he has suffered past persecution or has a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). A well-founded fear of persecution must be both subjectively genuine and objectively reasonable. Pedro-Mateo, 224 F.3d at 1150. The subjective component may be satisfied by the applicant’s testimony. Cordon-Garcia v. INS, 204 F.3d" } ]

[ { "docid": "22736085", "title": "", "text": "entered without admission or parole. At the removal hearing, Singh conceded removability. At 'a subsequent hearing, the IJ denied Singh’s application for asylum and withholding of removal on the grounds that his testimony lacked credibility. In addition, the IJ rejected Singh’s application for voluntary departure because he had not been physically present in the United States for a year or more. On appeal, the BIA conducted a de novo review of the record and affirmed the IJ’s adverse credibility determination. The BIA cited three reasons for its adverse credibility determination: the omission of Singh’s arm injuries in the doctor’s letter and the inadequacy of Singh’s explanation for this omission; the discrepancy regarding the location of the January 1997 political rally; and Singh’s alleged unresponsiveness to questions at the hearing. Finding Singh’s testimony not credible, the BIA declined to consider the merits of Singh’s asylum and withholding of removal claims, reasoning that “a persecution claim which lacks veracity cannot satisfy the burdens of proof and persuasion necessary to establish eligibility for asylum and withholding of removal.” Singh filed this timely appeal. II. DISCUSSION A. Standard of Review We review the BIA’s denial of asylum for substantial evidence. Al Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). We must affirm if the BIA’s determination is “supported by reasonable, substantial, and probative evidence,” and we reverse only if “the evidence [that the petitioner] 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, 481, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Where, as here, the BIA reviews the IJ’s decision de novo, our review is limited to the BIA’s decision. Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995). B. The BIA’s Adverse Credibility Finding Singh claims that he is entitled to asylum and withholding of removal pursuant to INA § 208(a) and former § 243(h). The credibility of a petitioner’s oral testimony before the IJ is critical for establishing the requisite fear of persecution necessary to grant asylum or withholding of removal. See Salazar-Paucar v. INS, 281" }, { "docid": "22651781", "title": "", "text": "foreign country and language, found a place to live, and filed an asylum application within that short period of time. At the conclusion of Farah’s initial appearance, the IJ reviewed the penalties for filing a frivolous application with Farah, and Farah indicated he understood the penalties and desired to go forward. During the course of the proceedings, the IJ did not, however, go through specific inconsistencies or implausible elements of Farah’s claim, upon which the frivolousness finding relied, and did not give Farah an opportunity to explain them. Eventually, the IJ entered an order setting forth his findings and his overall adverse credibility determination. The IJ further concluded that Farah had received notice under section 208(d)(4) of the Act and had knowingly made a frivolous application for asylum. The IJ ordered Farah’s removal to Somalia and denied requests for asylum, withholding of removal, and relief under the United Nations Torture Convention. The IJ ordered that Farah be permanently ineligible for any benefits under the immigration laws. The BIA reviewed the administrative record and then entered a summary order adopting, and affirming the IJ’s decision in its entirety, dismissing the appeal in an order dated May 9, 2001. This petition followed. II. Discussion: Where the BIA adopts the findings and reasoning of the IJ, this court reviews the decision of the IJ as if it were that of the BIA. Al-Harbi v. INS, 242 F.3d 882, 887 (9th Cir.2001). The standard of review is extremely deferential: “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(A)-(B). Thus, when a petitioner contends that the IJ’s findings are erroneous, the petitioner “must establish that the evidence not only supports that conclusion, but compels it.” Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998) (citation and internal quotation omitted). The same standard applies to the IJ’s credibility findings. Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001); Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995). Thus, this court must deny Farah’s petition unless Farah has presented evidence “so compelling that no" }, { "docid": "22651782", "title": "", "text": "a summary order adopting, and affirming the IJ’s decision in its entirety, dismissing the appeal in an order dated May 9, 2001. This petition followed. II. Discussion: Where the BIA adopts the findings and reasoning of the IJ, this court reviews the decision of the IJ as if it were that of the BIA. Al-Harbi v. INS, 242 F.3d 882, 887 (9th Cir.2001). The standard of review is extremely deferential: “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(A)-(B). Thus, when a petitioner contends that the IJ’s findings are erroneous, the petitioner “must establish that the evidence not only supports that conclusion, but compels it.” Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998) (citation and internal quotation omitted). The same standard applies to the IJ’s credibility findings. Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001); Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995). Thus, this court must deny Farah’s petition unless Farah has presented evidence “so compelling that no reasonable factfin-der could find” that he was not credible. Garrovillas v. INS, 156 F.3d 1010, 1015-16 (9th Cir.1998); see also Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812. Here, the IJ established a legitimate, articulable basis to question Farah’s credibility and offered specific, cogent reasons for disbelief as required under our law. See Shah v. INS, 220 F.3d 1062, 1067 (9th Cir.2000). These credibility findings went to key elements of the asylum application, including identity, membership in a persecuted group, and date of entry in the United States. Eligibility for asylum depends on the credible establishment of these elements. 8 U.S.C. § 1158(d)(5)(A)(i). We must defer to the IJ’s credibility findings and uphold the denial of asylum relief. Because we affirm the BIA’s determination that Farah failed to establish eligibility for asylum, we also affirm the denial of Farah’s application for withholding of removal. See Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.2000) (“A failure to satisfy the lower standard of proof required to establish eligibility for asylum therefore necessarily results in a failure" }, { "docid": "22331338", "title": "", "text": "is almost never easily available.” Id. at 1091-92. Conclusion We hold that the BIA’s reasons for finding Kaur not credible were not specific and cogent, and that his adverse credibility finding was therefore not based on substantial evidence. We grant the petition for review and remand for further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). Petition GRANTED and case REMANDED for further proceedings. TALLMAN, Circuit Judge, dissenting: The central issue in this appeal is whether the immigration judge’s adverse credibility determination is supported by “specific, cogent” reasons that are “substantial and bear a legitimate nexus to the finding.” Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir.2000) (internal quotation marks and citations omitted). In order to grant Kaur’s petition we must determine that her evidence “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 also id. at 481 n. 1, 112 S.Ct. 812 (“[W]e must find that the evidence not only supports [granting the petition], but compels it....”) (emphasis in original). Here, the court fails to apply this extremely deferential standard of review, a standard which is especially appropriate when we review credibility findings. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Because on this record a “reasonable finder of fact would not be compelled to conclude that [her] claim is credible,” Singh-Kaur v. INS, 183 F.3d 1147, 1153 (9th Cir.1999), I would deny Kaur’s petition for review. The IJ made his adverse credibility finding after presiding over a live hearing. He heard Kaur’s testimony on direct and cross-examination, questioned her himself, and cast an experienced eye on the supporting documents she proffered to establish her entitlement to asylum. I disagree with the majority’s divide-and-conquer approach to undermine the adverse finding. The reasons supporting the IJ’s conclusion that Kaur was not credible should not be evaluated seriatim, but rather as they interrelate to answer the key underlying question — whether she was telling" }, { "docid": "22630767", "title": "", "text": "fields. Petitioner’s cousin was nearby on horseback. The men asked the uncle whether he belonged to Petitioner’s family. This question prompted Petitioner’s cousin to flee. Petitioner’s uncle told the men he did not know where she was. When he tried to run away, he was shot, attacked with a machete, and killed. The IJ denied Petitioner’s application for asylum and withholding of deportation, citing in part both credibility concerns and her inability to establish that she suffered any persecution on account of an imputed political opinion. The BIA dismissed Petitioner’s subsequent appeal, but affirmed the IJ’s decision to grant her voluntary departure. DISCUSSION A. Standard of Review Where the BIA reviews the IJ’s decision de novo, our review is limited to the BIA’s decision, except to the extent the IJ’s opinion is expressly adopted. Ghaly v. INS, 58 F.3d 1425, 1480 (9th Cir.1995). The IJ’s and the BIA’s credibility findings are reviewed for “substantial evidence,” Singh-Kaur v. INS, 183 F.3d 1147, 1149 (9th Cir.1999), as are all other factual findings. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997). Substantial evidence is also the governing standard of review for the determination that Petitioner has not established eligibility for asylum. See Singh v. INS, 134 F.3d 962, 966 (9th Cir. 1998). The “substantial evidence” standard requires this court to uphold the IJ’s and BIA’s findings and decisions if supported by “reasonable, substantial, and probative evidence on the record.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal quotation marks omitted). To prevail, Petitioner must show that the evidence not only supports, but compels the conclusion that these findings and decisions are erroneous. See Singh, 134 F.3d at 966. “This strict standard bars a reviewing court from independently weighing the evidence and holding that petitioner is eligible for asylum, except in cases where compelling evidence is shown.” Id. (quoting Kotasz v. INS, 31 F.3d 847, 851 (9th Cir.1994)) (internal quotation marks omitted). Thus, Petitioner cannot prevail unless she demonstrates that any reasonable factfinder would have to conclude that she is eligible for relief from deportation. See" }, { "docid": "22651783", "title": "", "text": "reasonable factfin-der could find” that he was not credible. Garrovillas v. INS, 156 F.3d 1010, 1015-16 (9th Cir.1998); see also Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812. Here, the IJ established a legitimate, articulable basis to question Farah’s credibility and offered specific, cogent reasons for disbelief as required under our law. See Shah v. INS, 220 F.3d 1062, 1067 (9th Cir.2000). These credibility findings went to key elements of the asylum application, including identity, membership in a persecuted group, and date of entry in the United States. Eligibility for asylum depends on the credible establishment of these elements. 8 U.S.C. § 1158(d)(5)(A)(i). We must defer to the IJ’s credibility findings and uphold the denial of asylum relief. Because we affirm the BIA’s determination that Farah failed to establish eligibility for asylum, we also affirm the denial of Farah’s application for withholding of removal. See Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.2000) (“A failure to satisfy the lower standard of proof required to establish eligibility for asylum therefore necessarily results in a failure to demonstrate eligibility for withholding of deportation.”)(internal citation omitted). A failure to establish eligibility for asylum does not necessarily doom an application for relief under the United Nations Convention Against Torture, however. In Kamalthas v. INS, 251 F.3d 1279, 1282-83 (9th Cir.2001), we expressly rejected the BIA’s determination that an “‘applicant [fails] to satisfy his burden of presenting a prima facie case for relief under the Convention where he merely restates facts that have already been deemed incredible at a prior [asylum] hearing’ ” (alteration in original). Instead, we held that the standards for the two bases of relief are distinct and should not be conflated. We explained that, “pursuant to 8 C.F.R. § 208.16(c)(3), ‘all evidence relevant to the possibility of future torture shall be considered,’ even apart from any prior findings in the asylum context.” Id. at 1283. In that case, we particularly pointed to the fact that “nowhere in its opinion did the BIA consider the documented country conditions in Sri Lanka which corroborate the widespread practice of torture against Tamil males.”" }, { "docid": "22736086", "title": "", "text": "Singh filed this timely appeal. II. DISCUSSION A. Standard of Review We review the BIA’s denial of asylum for substantial evidence. Al Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). We must affirm if the BIA’s determination is “supported by reasonable, substantial, and probative evidence,” and we reverse only if “the evidence [that the petitioner] 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, 481, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Where, as here, the BIA reviews the IJ’s decision de novo, our review is limited to the BIA’s decision. Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995). B. The BIA’s Adverse Credibility Finding Singh claims that he is entitled to asylum and withholding of removal pursuant to INA § 208(a) and former § 243(h). The credibility of a petitioner’s oral testimony before the IJ is critical for establishing the requisite fear of persecution necessary to grant asylum or withholding of removal. See Salazar-Paucar v. INS, 281 F.3d 1069, 1073-74 (9th Cir.), amended by 290 F.3d 964 (9th Cir.2002). To support an adverse credibility determination, the BIA must have “a legitimate articulable basis to question the petitioner’s credibility, and must offer a specific, cogent reason for any stated disbelief.” Shah v. INS, 220 F.3d 1062, 1067 (9th Cir.2000) (quoting Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir.1998)). Inconsistencies in the petitioner’s statements must go to “the heart of [his] asylum claim” to justify an adverse credibility finding. Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001) (alteration in original) (quoting Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.1990)). “ ‘Minor inconsistencies’ that ‘reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding.’” Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996) (quoting Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988)). Thus, we must determine whether the evidence cited by the BIA supports its adverse credibility finding. Here, the BIA based its finding on alleged inconsistencies regarding the injuries Singh" }, { "docid": "22253957", "title": "", "text": "the BIA concluded that the hearing was fundamentally fair. II. STANDARD OF REVIEW “Where, as here, the BIA adopts the IJ’s decision while adding some of its own reasoning, we review both decisions.” Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir.2011). We review the BIA’s factual findings, including adverse credibility determinations, for substantial evidence. Salaam v. INS, 229 F.3d 1234, 1237-38 (9th Cir.2000). This standard of review is “extremely deferential: ‘administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (quoting 8 U.S.C. § 1252(b)(4)(A)-(B)). “Thus, when a petitioner contends that the IJ’s findings are erroneous, the petitioner ‘must establish that the evidence not only supports that conclusion, but compels it.’” Id. (quoting Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998)). We review the BIA’s determination of purely legal questions de novo. Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir.2009). Claims of due process violations in immigration proceedings are also reviewed de novo. Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir.2003). III. ADVERSE CREDIBILITY DETERMINATION Because Petitioner filed her asylum application after May 11, 2005, the REAL ID Act governs the determination of her credibility. 8 U.S.C. § 1158(b)(l)(B)(iii); see also Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir.2010). Specifically, this standard governing adverse credibility determinations provides: Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s" }, { "docid": "22331319", "title": "", "text": "after them and working in the kitchen, etcetera.” II. Standard of Review We review the BIA’s denial of asylum or withholding of removal for substantial evidence. Cordon-Gareia v. INS, 204 F.3d 985, 990 (9th Cir.2000). A denial must be upheld if supported by “reasonable, substantial and probative evidence” in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citation and internal quotation omitted). Because the BIA adopted the IJ’s adverse credibility findings, we review the IJ’s findings for substantial evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). While the substantial evidence standard is deferential, an IJ must point to a “specific and cogent” reason supporting an adverse credibility finding, Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.2003), and “such reason must be substantial and bear a legitimate nexus to the finding.” Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir.2000) (citation and internal quotations omitted). Inconsistencies in the petitioner’s statements must go to the heart of the asylum claim to justify an adverse credibility finding. Chen v. Ashcroft, 362 F.3d 611, 617 (9th Cir.2004); Wang v. Ashcroft, 341 F.3d 1015, 1021-22 (9th Cir.2003); Shah v. INS, 220 F.3d 1062, 1068 (9th Cir.2000). “Minor inconsistencies that reveal nothing about an asylum applicant’s fear for [her] safety are not an adequate basis for an adverse credibility finding.” Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996) (citation and internal quotations omitted). III. Discussion The IJ pointed to six reasons supporting his adverse credibility finding. None of these reasons is supported by substantial evidence. As we are required to do under our case law, we address each reason in turn. See Wang, 341 F.3d at 1021 (“To determine whether substantial evidence supports the BIA’s finding, we evaluate each ground cited by the BIA for its finding”) (emphasis added); Chen v. INS, 266 F.3d 1094, 1098 (9th Cir.2001), overruled on other grounds, 537 U.S. 1016, 123 S.Ct. 549, 154 L.Ed.2d 423 (2002) (“The task of this court is to determine whether substantial evidence supports the finding of the BIA. In doing so, we independently" }, { "docid": "22666803", "title": "", "text": "the IJ nor the BIA questioned Petitioner’s credibility. JURISDICTION We lack jurisdiction to review the BIA’s determination that no “extraordinary circumstances” excused Petitioner’s untimely filing of his application for asylum. 8 U.S.C. § 1158(a)(3); Hakeem v. INS, 273 F.3d 812, 815 (2001); see also 8 U.S.C. § 1158(a)(2)(D)(excusing a late filing in “extraordinary circumstances”); 8 C.F.R. § 208.4(a)(5)(identifying events that qualify as “extraordinary circumstances”). We also lack jurisdiction to review a discretionary decision to deny cancellation of removal. 8 U'S.C. § 1252(a)(2)(B)®; 8 U.S.C. § 1229b(b)(l). However, we have jurisdiction to review the BIA’s legal determination that Petitioner is statutorily ineligible for cancellation of removal. Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144-45 (9th Cir.2002). We have jurisdiction over the petition to review the BIA’s dismissal of Petitioner’s withholding-of-removal claim. 8 U.S.C. § 1252(a). STANDARDS OF REVIEW We review for substantial evidence the BIA’s decision whether to withhold removal. Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). We review de novo the BIA’s resolution of “purely legal questions.” Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000). Factual findings by the BIA are “conclusive” if “ ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’” Singh v. Ilchert, 63 F.3d 1501, 1506 n. 1 (9th Cir.1995) (quoting 8 U.S.C. § 1105a(a)(4), now repealed); see also Al-Harbi, 242 F.3d at 888. “To obtain reversal, petitioner must show that ‘the evidence not only supports that conclusion, but compels it.’ ” Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)); see also Al-Harbi, 242 F.3d at 888. Where, as here, the BIA has reviewed the IJ’s decision and incorporated portions of it as its own, we treat the incorporated parts of the IJ’s decision as the BIA’s. Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir.1999); Gonzalez v. INS, 82 F.3d 903, 907 (9th Cir.1996). DISCUSSION A. Cancellation of Removal To be eligible for cancellation of removal, an alien who has not been admitted lawfully for permanent residence in the United" }, { "docid": "22688387", "title": "", "text": "asylum if it is supported by reasonable, substantial evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The BIA’s credibility findings are reviewed under the same substantial evidence standard. See Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir.1998). Although this standard is deferential, “[t]he BIA must have ‘a legitimate articulable basis to question the petitioner’s credibility, and must offer a specific, cogent reason for any stated disbelief.’ ” Id. (quoting Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996)). The reasons also “must be substantial and bear a legitimate nexus to the finding” that the petitioner is not credible. Osorio, 99 F.3d at 931 (internal quotation marks omitted). Where, as here, “the BIA reviews the IJ’s decision de novo, our review is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.” Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000). 1. The Discrepancy Between the Death Certificate’s Official Date Stamp and the Date Mrs. Shah Testified Mr. Shah Died. The BIA based an adverse credibility finding on its observation “that the death certificate contains a date inconsistent with the date claimed by the adult female respondent as the date of her husband’s death.” Specifically, the BIA pointed to the fact that there are two different dates on the death certificate Mrs. Shah offered- as corroborating evidence. Although it is true that the official stamp on the certificate is marked with the date of April 1, 1991, the date of Mr. Shah’s death, which is listed as November 5, 1991, fully comports with Mrs. Shah’s testimony and the rest of her corroborating evidence. It is well-established that, “minor discrepancies in dates that are attributable to ... typographical errors” cannot properly serve as the basis for an adverse credibility finding. Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir.1986). There are any of number of reasons to account for the fact that the stamp on the death certificate pre-dates that listed as Mr. Shah’s death. A clerk in the Indian bureaucracy may, for instance, have" }, { "docid": "22614238", "title": "", "text": "of the factual allegations contained in the Order to Show Cause and conceded deportability. As relief from deportation, he submitted an application for asylum pursuant to Immigration and Nationality Act (INA) § 208, 8 U.S.C. § 1158, and with- holding of deportation pursuant to INA § 243(h), 8 U.S.C. § 1253(h). The Immigration Judge (IJ) denied Wang’s application, concluding that Wang’s documentary and testimonial evidence lacked credibility. The Board affirmed the IJ’s decision without opinion. II. To qualify for asylum, Wang must demonstrate a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). In seeking withholding of deportation, he must meet an even higher burden of proof: “an alien must demonstrate that it is more likely than not that he would be subject to persecution on one of the specified grounds.” Al-Harbi v. INS, 242 F.3d 882, 888(9th Cir. 2001) (internal quotations omitted). Wang was denied asylum and withholding of deportation based on a finding that his evidence of persecution is not credible; therefore, we review this finding for substantial evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). Although this standard of review counsels great deference to the Board’s adverse credibility determinations, the Board must nevertheless provide “a legitimate articulable basis” for challenging Wang’s credibility, and it must “offer a specific, cogent reason for any stated disbelief.” Shah v. INS, 220 F.3d 1062, 1067 (9th Cir.2000) (internal quotation marks and citations omitted). Our task on this petition is limited to deciding whether the Board has satisfied this basic “substantial evidence” threshold. Where, as here, the Board affirms an IJ’s denial of asylum and withholding of deportation without opinion, we review the IJ’s decision as though it were the Board’s. Lata v. INS, 204 F.3d 1241, 1244 (9th Cir.2000); see also Falcon Carriche v. Ashcroft, 335 F.3d 1009, 1014 (9th Cir.2003) (“The practical effect of this regulatory scheme is that, unless the [Board] opts for three-judge review, the IJ’s decision becomes the [BoardJ’s decision.”). III. The IJ based her adverse credibility finding on perceived inconsistencies" }, { "docid": "22626571", "title": "", "text": "the IJ’s decision, the BIA adopts the IJ’s decision in its entirety.” Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc). “In citing Burbano, [t]he BIA thereby signaled that it had conducted an independent review of the record and had exercised its own discretion in determining that its conclusions were the same as those articulated by the IJ.” Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232 (9th Cir.2008) (alteration in original) (internal quotation marks omitted). We review questions of law de novo, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.2008), except to the extent that deference is owed to the BIA’s determination of the governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). Factual findings are reviewed for substantial evidence. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006). When neither the IJ nor the BIA makes an adverse credibility finding, we must accept a petitioner’s testimony before the IJ as true. Lim v. INS, 224 F.3d 929, 933 (9th Cir.2000). III. DISCUSSION A. Asylum and Withholding of Removal The Attorney General may grant asylum to an alien who “is unable or unwilling to return to ... [his home] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101 (a)(42)(A); id. § 1158(b)(1)(A); see INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The source of the persecution must be a government official or an individual or group that “the government is unwilling or unable to control.” Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir.2000) (internal quotation marks omitted). To qualify for withholding of removal, an alien must demonstrate that there is a clear probability that he will be subject to such persecution. Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). An alien who fails to satisfy the lower standard of proof required to establish eligibility for asylum necessarily fails to establish eligibility for withholding of removal. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Ramos" }, { "docid": "22649290", "title": "", "text": "the BIA’s adverse credibility finding. In this case, the inconsistencies are the sum total of Mr. Pal’s testimony. And they “involved the heart of his asylum claim,” which rests only on these two incidents, de Leon-Barrios v. INS, 116 F.3d 391, 394 (9th Cir.1997) (citations omitted). Nor was the IJ’s credibility determination based solely on the fact that the asylum application was less complete than the testimony at the hearing, another basis on which this court has rejected adverse credibility findings. See Aguilera-Cota v. INS, 914 F.2d 1375 (9th Cir.1990). Here, Mr. Pal’s sworn testimony was inconsistent with, not an amplification of, his application. As Mr. Pal bears the burden of establishing his eligibility for asylum, the contradictions in his testimony regarding the heart of his claim support the BIA’s conclusion that he has not done so. Nothing in the record compels otherwise. VI Nothing in the record compels a result different from that reached by the BIA. Accordingly, we deny the Pals’ petition for review of the BIA’s decision. PETITION FOR REVIEW DENIED. . The asylum applications of the children are derivative of those of Mrs. Pal. . We review determinations of the BIA under the highly deferential standard of substantial evidence. See Singh v. INS, 134 F.3d 962 (9th Cir.1998). The BIA’s decision must be affirmed unless the petitioner can establish “that the evidence he presented was so compelling that no reasonable factfinder could fail to find [eligibility for asylum].\" INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). As we have pointed out, the \"strict standard” of substantial evidence review \"bars a reviewing court from independently weighing the evidence and holding that petitioner is eligible for asylum, except in cases where compelling evidence is shown.” Kotasz v. INS, 31 F.3d 847, 851 (9th Cir.1994). Where, as here, the BIA exercised its power to conduct an independent review of the record, we review the decision of the BIA and not that of the IJ. See Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995). . Also unlike in Campos-Sanchez, Mrs. Pal had" }, { "docid": "22610327", "title": "", "text": "the proper course of action for a court of appeals is to remand the issue to the BIA for decision.” Chen v. Ashcroft, 362 F.3d 611, 621 (9th Cir.2004) (citing INS v. Ventura, 537 U.S. 12, 17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002)). We therefore do not address Attia’s additional challenges to the IJ’s decision. Ill Rizk claims that the IJ’s adverse credibility determination was not supported by substantial evidence. Where, as here, the BIA expressly adopts the IJ’s decision, we review the IJ’s findings as if they were the BIA’s. Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir.2010). Because credibility determinations are findings of fact by the IJ, they “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (2000). “To reverse [such a] finding we must find that the evidence not only supports [a contrary] conclusion, but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We must uphold the IJ’s adverse credibility determination “[s]o long as one of the identified grounds is supported by substantial evidence and goes to the heart of[the alien’s] claim of persecution.” Wang v. INS, 352 F.3d 1250, 1259 (9th Cir.2003). The IJ “must have a legitimate articulable basis to question the petitioner’s credibility, and must offer a specific, cogent reason for any stated disbelief.” Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994); accord Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir.2006). Major inconsistencies on issues material to the alien’s claim of persecution constitute substantial evidence supporting an adverse credibility determination. See Kaur v. Gonzales, 418 F.3d 1061, 1064 (9th Cir.2005). This general rule has two qualifications, however. First, minor inconsistencies regarding non-material and trivial details, such as typographical errors or inconsistencies in specific dates and times that lack a close nexus to the petitioner’s asserted grounds of persecution, cannot form the exclusive basis for an adverse credibility determination. Id. at 1064. Of course, even minor inconsistencies going to the heart of a petitioner’s claim may, when considered collectively, “deprive [the] claim" }, { "docid": "22079988", "title": "", "text": "denied Singh’s asylum application, finding his testimony internally inconsistent and inconsistent with his application. Singh timely appealed the IJ’s decision to the BIA. He had recently moved to a new address and, following the form’s instructions, he provided his new mailing address on the Notice of Appeal. Accordingly, the BIA sent the receipt for the filling of the appeal to that mailing address. However, on April 24, 2001, nearly a year and a half after Singh filed his appeal, the BIA sent the briefing schedule and transcript of his deportation hearings to his former address. On July 16, 2001, seven weeks after the deadline contained in the misaddressed briefing schedule had passed, Singh learned of the error and filed an unopposed motion for an extension of time to a file a brief. On April 8, 2002, the BIA denied Singh’s motion as untimely, so he was unable to file a brief. Six weeks later, over a dissent by Board Member Rosenberg, the BIA dismissed the appeal, stating that Singh failed to provide “any specific and detailed arguments about the contents of his testimony and why he should be deemed a credible witness.” Singh timely petitioned for review. III We have jurisdiction over a final removal order pursuant to 8 U.S.C. § 1252(a)(1). We review for substantial evidence the decision that an alien has not established eligibility for asylum. Cardenas v. INS, 294 F.3d 1062, 1065 (9th Cir.2002) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Adverse credibility findings are also reviewed for substantial evidence. Valderrama v. INS, 260 F.3d 1083, 1085(9th Cir.2001) (per curiam). We reverse the BIA’s decision only if the evidence that the petitioner presented was “so compelling that no reasonable factfin-der could find that he was not credible.” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (internal quotation marks omitted). IV This is not the typical case in which a petitioner does not receive notice, is deported in absentia, and is before us attempting to explain his (or, as is more usually the case, his attorney’s) failure to appear" }, { "docid": "22722999", "title": "", "text": "denied Mr. Singh’s asylum application and ordered him removed to India. The IJ found that Mr. Singh’s testimony was implausible and not credible. Alternatively, the IJ found that even if Mr. Singh’s testimony were accepted as truthful, he had not demonstrated that he had suffered past persecution because of imputed political opinion. The BIA affirmed in a per curiam decision dated February 25, 2003. The BIA’s opinion included á short footnote denying Mr. Singh’s claim under the Convention Against Torture because he had “not proffered prima facie evidence that it was more likely than not that he would be tortured if he returned to India.” Mr. Singh timely petitioned for review on March 24, 2003. We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1). II Mr. Singh contends that his petition for review should be granted because substantial evidence does not support the IJ’s finding that his testimony was not credible. We review adverse credibility determinations for substantial evidence and reverse only if the evidence compels a contrary conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Chen v. Ashcroft, 362 F.3d 611, 616 (9th Cir.2004). Although this standard is deferential, the IJ or BIA must identify “specific, cogent reasons” for an adverse credibility finding, and the reasons must be substantial and legitimately connected to the finding. Singh v. Ashcroft, 367 F.3d 1139, 1143 (9th Cir.2004); Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996) (quoting Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir.1996), superceded by statute on other grounds, 8 U.S.C. § 1252(g) (1996), Pub.L. No. 104-208, 110 Stat. 3009). This means that the reason identified must “strike at the heart of the claim” for asylum. Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004). “Minor inconsistencies ... that do not relate to the basis of an applicant’s alleged fear of persecution, [or] go to the heart of the asylum claim” do not generally support an adverse credibility finding. Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir.2003). An IJ must also afford petitioners a chance to" }, { "docid": "22253956", "title": "", "text": "rejected all of Petitioner’s arguments and dismissed her appeal. On appeal to the BIA, Petitioner first objected to the IJ’s adverse credibility determination. The BIA reviewed the IJ’s decision for clear error and affirmed the IJ’s adverse credibility finding and the denial of Petitioner’s application. Consequently, the BIA dismissed Petitioner’s appeal in an order summarizing the IJ’s oral ruling. In addition, Petitioner argued that the IJ deprived her of a full and fair hearing by failing to act as a neutral fact-finder. Specifically, Petitioner asserted that the IJ demonstrated impermissible moral judgment through her commentary on the relationship between Petitioner and her roommate, Mr. Im. Petitioner also argued that the IJ conducted “aggressive” questioning that “interrupted the hearing.” The BIA rejected these arguments. The BIA further determined that, even to the extent that the IJ made improper or unnecessary comments during the hearing, these comments did not reflect impropriety. Rather, these comments represented the IJ’s efforts to ascertain the nature of Petitioner’s relationship with each witness, and thereby assess each witness’s credibility. For these reasons, the BIA concluded that the hearing was fundamentally fair. II. STANDARD OF REVIEW “Where, as here, the BIA adopts the IJ’s decision while adding some of its own reasoning, we review both decisions.” Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir.2011). We review the BIA’s factual findings, including adverse credibility determinations, for substantial evidence. Salaam v. INS, 229 F.3d 1234, 1237-38 (9th Cir.2000). This standard of review is “extremely deferential: ‘administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (quoting 8 U.S.C. § 1252(b)(4)(A)-(B)). “Thus, when a petitioner contends that the IJ’s findings are erroneous, the petitioner ‘must establish that the evidence not only supports that conclusion, but compels it.’” Id. (quoting Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998)). We review the BIA’s determination of purely legal questions de novo. Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir.2009). Claims of due process violations in immigration proceedings are also reviewed de novo. Lopez-Urenda" }, { "docid": "22688386", "title": "", "text": "(2) the fact that Mr. Shah’s passport identified him as an accountant, rather than a BJP employee; (3) and the State Department’s suggestion that a BJP member who claimed that he could not live peaceably in India was not credible. The BIA then added four new bases for its adverse- credibility holding: (1) Mrs. Shah’s failure to explain why she did not provide the IJ with the records on which the death certificate was based; (2) her failure to authenticate letters from BJP leaders; (3) its belief that it “is unbelievable” that Mr. Shah could have worked for the BJP for more than ten years given the small number of letters the Shahs received; and (4) her failure to present more documentation given.her claim that her husband was a BJP employee. Reasoning that its finding of adverse credibility “is dispositive for purposes of eligibility,” the BIA did not determine whether the Shahs’ evidence, if believed, could meet the asylum standard. III. DISCUSSION A. The BIA’s Adverse Credibility Determination We must uphold the BIA’s denial of asylum if it is supported by reasonable, substantial evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The BIA’s credibility findings are reviewed under the same substantial evidence standard. See Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir.1998). Although this standard is deferential, “[t]he BIA must have ‘a legitimate articulable basis to question the petitioner’s credibility, and must offer a specific, cogent reason for any stated disbelief.’ ” Id. (quoting Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996)). The reasons also “must be substantial and bear a legitimate nexus to the finding” that the petitioner is not credible. Osorio, 99 F.3d at 931 (internal quotation marks omitted). Where, as here, “the BIA reviews the IJ’s decision de novo, our review is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.” Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000). 1. The Discrepancy Between the Death Certificate’s Official Date Stamp and the Date Mrs. Shah Testified Mr. Shah" }, { "docid": "22957065", "title": "", "text": "for the KGB/NSC. II. ANALYSIS We review the BIA’s determination that an alien has not established eligibility for asylum or withholding deportation under the substantial evidence standard. See 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 he 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). \"We review de novo claims of due process violations in deportation proceedings.\" Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir.2000). A. Due Process Violation When the BIA decides an asylum case \"based on an independent, adverse, credibility determination, contrary to that reached by the IJ, it must give the petitioner an opportunity to explain any alleged inconsistencies that it raises for the first time.\" Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). To do otherwise, violates the petitioner's due process rights. See id. Here, the LI did not make a credibility finding. The IJ'5 decision therefore did not put the Abovians on \"notice that [their] credibility was questioned\" or that they should provide the BIA with \"`explanations for alleged discrepancies'\" in their testimony. Pal v. INS, 204 F.3d 935, 938-39 (9th Cir.2000) (quoting Campos-Sanchez, 164 F.3d at 449). As a result, the BIA violated the Abovians' rights to due process. We must therefore remand this matter to the BIA so that Abo-vians will have that opportunity. See Campos-Sanchez, 164 F.3d at 450. Even assuming no due process violation, the BIA's credibility finding is not supported by substantial evidence. To deny asylum on credibility grounds, the BIA must have a \"legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief.\" Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994). The BIA found Abovian's testimony to be \"disjointed, incoherent, and implausible.\" This circuit has consistently held that an \"immigration judge is in the best position to make" } ]

[ { "docid": "22713946", "title": "", "text": "which his action violated a student’s constitutional rights, a school board member, who has voluntarily undertaken the task of supervising the operation of the school and the activities of the students, must be held to a standard of conduct based not only on permissible intentions, but also on knowledge of the basic, unquestioned constitutional rights of his charges. Such a standard neither imposes an unfair burden upon a person assuming a responsible public office requiring a high degree of intelligence and judgment for the proper fulfillment of its duties, nor an unwarranted burden in light of the value which civil rights have in our legal system. Any lesser standard would deny much of the promise of § 1983. Therefore, in the specific context of school discipline, we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student. That is not to say that school board members are 'charged with predicting the future course of constitutional law.’ Pierson v. Ray, 386 U. S. [547, 557 (1967).] A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student’s clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.” Ante, at 321-322. The opinion indicates that actual malice is presumed where one acts in ignorance of the law; thus it would appear that even good-faith reliance on the advice of counsel is of no avail. The Court's rationale in Goss suggests, for example, that school officials may infringe a student’s right to education if they place him in a noncollege-preparatory track or deny him promotion with his class without affording a due process hearing. See 419 U. S., at 597-599 (Powell, J., dissenting). Does this" } ]

[ { "docid": "21728264", "title": "", "text": "into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the' right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent. Johnson, 333 U.S. at 13-14, 68 S.Ct. at 368-369. III. Our conclusion as to the lack of probable cause does not end our inquiry for there is also the matter of the officers’ good faith to deal with. See Whitley v. Seibel, 613 F.2d 682, 685 (7th Cir.1980), cert. denied, 459 U.S. 942, 103 S.Ct. 254, 74 L.Ed.2d 198 (1982). If the officers had a reasonable good faith belief that they had probable cause to enter the Llaguno home, they would not be liable for damáges, notwithstanding the fact that the entry was unconstitutional. Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967). Appellants contend that since the officers should have known that their acts violated clearly established constitutional standards of probable cause, the defense of qualified immunity is unavailable to them as a matter of law. We agree. We review appellants’ motion for a directed verdict in regard to the good faith issue under the same standard utilized in our previous discussion. We must view the evidence in the light most favorable to the officers and reverse the denial of the motion only if reasonable persons could not differ in concluding that the officers lacked good faith. See Richardson, 658 F.2d at 501. Prior to Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the test for determining whether a government official was entitled to qualified immunity contained both objective and subjective components. Crowder v. Lash, 687 F.2d 996, 1007 (7th Cir.1982). In Harlow, the Court formulated a revised qualified immunity standard that does not include a subjective component; the Court held that \"government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their" }, { "docid": "8473485", "title": "", "text": "of fact, then we lack jurisdiction over the appeal of that question.” Id; see also McDonnell v. Cournia, 990 F.2d 963, 964 (7th Cir.1993); Marshall v. Allen, 984 F.2d 787, 792 (7th Cir.1993); Elliott v. Thomas, 937 F.2d 338, 341-42 (7th Cir.1991), cert. denied, — U.S. -, -, 112 S.Ct. 973, 1242, 117 L.Ed.2d 138 (1992). We must therefore consider whether there are factual issues relating to Shelander’s claim of qualified immunity. See Hall v. Ryan, 957 F.2d 402, 404 (7th Cir.1992). If factual issues exist, and the record supports a version of the facts under which Shelander would not be entitled to immunity, Hill must prevail, for in that circumstance, we would be unable to decide the immunity question as a matter of law. See Hansen v. Bennett, 948 F.2d 397, 399 (7th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1939, 118 L.Ed.2d 545 (1992); see also Marshall, 984 F.2d at 793; Hall, 957 F.2d at 404. In conducting this inquiry, we view the facts and the evidence in the light most favorable to Hill, the non-moving party. McDonnell, 990 F.2d at 963, 964; Marshall, 984 F.2d at 793. A. Qualified Immunity After Harlow. In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Supreme Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Prior to Harlow, the qualified immunity inquiry included both an objective and a subjective component. See, e.g., Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967); Wood v. Strickland 420 U.S. 308, 322, 95 S.Ct. 992, 1000-01, 43 L.Ed.2d 214 (1975); see also Rakovich v. Wade, 850 F.2d 1180, 1205 (7th Cir.) (en banc) (discussing development of qualified immunity from Pierson to Harlow), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988). The objective prong considered whether the government official knew or reasonably should have known that his actions would" }, { "docid": "22126411", "title": "", "text": "sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested. United States v. Cruz, 910 F.2d 1072, 1076 (3d Cir.1990) (citing Dunaway v. New York, 442 U.S. 200, 208 n. 9, 99 S.Ct. 2248, 2254, n. 9, 60 L.Ed.2d 824 (1979)). When a police officer does arrest a person without probable cause, the officer may be liable in a civil rights suit for damages. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Nevertheless, “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Government officials, such as police officers, are accorded qualified rather than absolute immunity in order to accommodate two important interests: the officials’ interest in performing their duties without the fear of constantly defending themselves against insubstantial claims for damages, and the public’s interest in recovering damages when government officials unreasonably invade or violate individual rights under the Constitution and laws of the United States. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Because the qualified immunity doctrine provides the official with immunity from suit, not simply trial, Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993), the district court should resolve any immunity question at the earliest possible stage of the litigation. Creighton, 483 U.S. at 646 n. 6, 107 S.Ct. at 3042 n. 6. When the material facts are not in dispute, the district court may decide whether a government official is shielded by qualified immunity as a matter of law. Id. Typically, the. dispositive issue in these types of cases is whether the right at issue was “clearly established” at the time the official acted. In this case, however, there is no question that the right at" }, { "docid": "20907963", "title": "", "text": "Congress did not say it would remedy only violations of \"clearly established” law,, but that [ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District' of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for tin act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. 42 U.S.C. § 1983 (emphasis added). The Supreme Court established the qualified immunity defense in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and held that- officials were not liable for constitutional violations where they reasonably believed that their conduct was constitutional. See E. Clarke, Safford Unified Sch. Dist. No. 1 v. Redding: Why Qualified Immunity is a Poor Fit in Fourth Amendment School Search Cases, 24 B.Y.U. J. Pub.L. 313, 329 (2010). The Supreme Court first introduced the \"clearly established” prong in reference to an officer's good faith and held that a compensatory award would only be appropriate if an officer “acted with such an impermissible motivation or with such disregard of the [individual’s] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.” Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). In Harlow v. Fitzgerald, when the Supreme Court moved to an objective test, the clearly-established prong became a part of the qualified immunity test. See 457 U.S. at 818, 102 S.Ct. 2727 (\"We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights.”). It seems ironic that the federal courts" }, { "docid": "18557232", "title": "", "text": "district court dismissed appellants’ claim against LaCoste for lack of jurisdiction. We affirm on the ground that, in light of LaCoste’s qualified immunity from damages liability under § 1983, appellants failed to state a § 1983 claim against LaCoste. See Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 158, 82 L.Ed. 224 (1937) (court of appeals can affirm on any ground presented by the record). Even if appellants’ complaint arguably could be said to allege conduct by LaCoste violative of the Fourth Amendment, cf. Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), we agree that dismissal of appellants’ claims against LaCoste was proper. On the face of appellants’ allegations, LaCoste acted in good faith as a matter of law and, consequently, is immune from liability. It is well-settled that a police officer acting within the scope of his proper functions enjoys qualified immunity from § 1983 damages liability, so that he may not be held liable for good-faith conduct. Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967). In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Supreme Court made it clear that the determination of a government official’s good faith is a matter of objective inquiry, so that officials “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Under these principles a police officer is “excus(ed) from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.” Gomez v. Toledo, 446 U.S. 635, 639, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980); Pierson, supra, 386 U.S. at 555, 87 S.Ct. at 1218. This objective good-faith test permits resolution of questions of qualified immunity as a matter of law in appropriate cases. Floyd v. Farrell, 765 F.2d 1, 6 (1st Cir.1985). In the instant case, LaCoste acted well within the scope of the powers" }, { "docid": "12544616", "title": "", "text": "667-68, 94 S.Ct. at 1357-58). Thus, the plaintiffs may sue Haley, Hopper, and Jones in their official capacities for prospective injunctive relief and costs associated with that relief. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 102-03, 104 S.Ct. 900, 909, 79 L.Ed.2d 67 (1984). C. Qualified Immunity Haley, Hopper, and Jones have been sued in their individual capacities for damages only. However, the doctrine of qualified immunity prevents them from being held liable in such capacities. Qualified immunity insulates government agents from personal liability for money damages for actions taken in good faith pursuant to their discretionary authority. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed:2d 396 (1982). As established by the Supreme Court in Harlow, the test for “good faith” or qualified immunity turns primarily on the objective reasonableness of the officials’ conduct in light of established law: “governmental officials ... generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Where the law that the defendants allegedly violated was not clearly established at the time of the alleged offense, the defendants are entitled to qualified immunity. Id. at 807, 102 S.Ct. at 2732; Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499, 1503 (11th Cir.1990). If the law was clearly established, however, the immunity defense will fail since “a reasonably competent public official should know the law governing his conduct.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. The court must follow a two-step analysis to determine whether public officials are entitled to qualified immunity. See Sims v. Metropolitan Dade County, 972 F.2d 1230, 1236 (11th Cir.1992). First, the defendants must prove that they were acting within the scope of their discretionary authority at the time of the allegedly unconstitutional conduct. See id. Once this is shown, the burden shifts to the plaintiff to prove that the defendants’ actions violated clearly established statutory or constitutional law. See id. As to" }, { "docid": "9840369", "title": "", "text": "defense is an affirmative one and the burden to plead and prove the same is on the defendant. See Harris v. Pirch, 677 F.2d 681 (8th Cir.1982), and Whitley v. Seibel, 613 F.2d 682 (7th Cir.1980). Municipalities are not immune from liability for Section 1983 claims and may not assert the good faith defense of its officers as a defense to such liability. Owen V. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Therefore, defendant City of Elkhart cannot avail itself of the good faith defense. One of the basic concerns of the line of immunity cases is to protect officials from claims for money damages that result from the application of newly developed legal standards. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). In Harlow, the Supreme Court specifically stated that: Consistently with the balance at which aimed in Butz [v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978)], we conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretional functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Procunier v. Navarette, 434 U.S. 555, 565, 98 S.Ct. 855, 861, 55 L.Ed.2d 24 (1978); Wood v. Strickland, supra, 420 U.S., at 321, 95 S.Ct., at 1000. 102 S.Ct., at 2738. The key in Harlow is “discretionary functions.” It is highly doubtful that the reasoning and result in Harlow avails much to the defendant officers in the case presently before this court. The standards regarding demotions and discharges of policemen and firemen were clearly established by January 1, 1980. The officer defendants have failed to sustain their burden of proof on the issue of good faith immunity. See Alexander v. Alexander, 706 F.2d 751 (6th Cir.1983). However," }, { "docid": "3072123", "title": "", "text": "issuing a criminal arrest warrant to collect a debt. A finding of immunity for Floyd, however, is not determinative of Dixon’s possible liability. As the Supreme Court decided in Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 186, 66 L.Ed.2d 185, 189 (1980), the dismissal on immunity grounds of a § 1983 action against a judge does not require dismissal as to the private parties involved. In Dennis, the judge had allegedly been bribed by one of the parties to the case to issue an injunction. As the Court noted, “[ujnder these allegations, the private parties conspiring with the judge were acting under color of state law; and it is of no consequence in this respect that the judge himself is immune from damages liability.” 449 U.S. at 28, 101 S.Ct. at 186, 66 L.Ed.2d at 190. Kelley and Latham Police officers do not enjoy absolute immunity from civil liability for § 1983 violations. Instead, they acquire a qualified immunity only for the good faith performance of their duties. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Since the Supreme Court decision in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the standard for gauging the good faith of government officials, including law enforcement officials, has been an objective one. Officials “are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S. at 818, 102 S.Ct. at 2738, 73 L.Ed.2d at 410. The district court based its finding of good faith on the part of Officers Kelley and Latham on the appellant’s failure to rebut the testimony of the officers that they were simply carrying out their duties, or to produce evidence which would support an inference of bad faith. In reaching that decision, however, the district court overlooked a genuine issue of material fact regarding the manner in which the arrest warrant was executed. Officers Kelley and Latham did testify that they simply executed a facially valid arrest" }, { "docid": "8473486", "title": "", "text": "to Hill, the non-moving party. McDonnell, 990 F.2d at 963, 964; Marshall, 984 F.2d at 793. A. Qualified Immunity After Harlow. In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Supreme Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Prior to Harlow, the qualified immunity inquiry included both an objective and a subjective component. See, e.g., Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967); Wood v. Strickland 420 U.S. 308, 322, 95 S.Ct. 992, 1000-01, 43 L.Ed.2d 214 (1975); see also Rakovich v. Wade, 850 F.2d 1180, 1205 (7th Cir.) (en banc) (discussing development of qualified immunity from Pierson to Harlow), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988). The objective prong considered whether the government official knew or reasonably should have known that his actions would violate the constitutional rights of another, whereas the subjective component looked to the official’s state of mind — that is, whether he acted with malicious intent to cause a constitutional deprivation. See Rakovich, 850 F.2d at 1205. If a plaintiff could raise a question as to either inquiry, the defendant was not immune from suit. Id. Harlow eliminated the subjective component of the qualified immunity analysis because the Court found that an examination of the defendant’s subjective intent was incompatible with the goal of resolving insubstantial claims against government officials short of trial. Harlow, 457 U.S. at 816, 102 S.Ct. at 2737. Thus, Harlow shifted the focus of the qualified immunity analysis to the objective component alone in order “to shield public officials not only from liability, but also from the burdens of trial.” Green v. Carlson, 826 F.2d 647, 651 (7th Cir.1987); see also Marshall, 984 F.2d at 792. Because the objective analysis is necessarily less fact-dependent than the subjective inquiry, summary judgment has become the appropriate stage for resolving most qualified immunity issues." }, { "docid": "8498932", "title": "", "text": "fact that the Bible Believers’ speech was found to be objectionable by a number of people attending the Festival. Wayne County therefore violated the Bible Believers’ right to equal protection by treating them in a manner different from other speakers, whose messages were not objectionable to Festival-goers, by burdening their First Amendment rights. See Napolitano, 648 F.8d at 379. IV. Qualified Immunity Whether Deputy Chiefs Richardson and Jaafar can be held liable for civil damages is a separate question from whether their actions violated the Constitution. Although Glasson spoke about a good-faith defense, qualified immunity — announced seven years after Glasson in Harlow v. Fitzgerald — is the presently available affirmative defense for government officials subject to liability under § 1983. In Harlow, the Supreme Court removed the subjective element from the then-existing affirmative defense for government actors— the good faith inquiry. Harlow, 457 U.S. at 819, 102 S.Ct. 2727 (“By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct.”); see also Ohio Civil Serv. Emps. Assoc. v. Setter, 858 F.2d 1171, 1173 (6th Cir.1988) (“The law of qualified immunity was dramatically changed by the Court in Harlow v. Fitzgerald.”). Pursuant to Harlow, “government officials performing discretionary functions generally are' shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S. at 818, 102 S.Ct. 2727. This standard presupposes two things: first, that the facts alleged by the plaintiff are sufficient to state a constitutional claim; and second, that the constitutional right which the officer has purportedly violated was clearly established at the time of the harm giving rise to the action. Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), abrogated by Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (holding that although the two-step inquiry-set out in Saucier “is often beneficial,” courts may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be" }, { "docid": "2785369", "title": "", "text": "43 L.Ed.2d 214 (1975) as a basis for its decision, the opinion itself suggests that the district court applied the objective test of Harlow v. Fitzgerald, 457 U.S. 800, 815-819, 102 S.Ct. 2727, 2736-2738, 73 L.Ed.2d 396 (1982) as a basis for its decision that the defendant, Dr. Rose, individually, is entitled to the defense of qualified immunity. The district court found that “plaintiff’s evidence in this case fails to establish that defendant’s actions were prompted by impermissible motivation or in disregard of plaintiff’s clearly established rights;” and that the court could not “impose upon the defendant the knowledge that his actions would violate any constitutional rights of plaintiff.” Littlejohn v. Rose, No. C820217-P(B), Slip opinion at 5 (W.D.Ky. Dec. 12, 1983). The district court’s holding was in complete conformity with the objective standard announced in Harlow v. Fitzgerald: “we therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Regardless of the standard applied, the qualified immunity defense only protects the superintendent in his individual capacity from money damages, not from other forms of relief sought such as reinstatement. Id. Further, despite the good faith intentions of the officers through which it acts, a local government entity cannot assert a good faith immunity defense in any circumstances. Brandon v. Holt, — U.S. -, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985); Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Accordingly, the availability of qualified immunity that would enable an individual defendant to escape individual liability for money damages would not warrant the dismissal of claims against that defendant in his official capacity or against a governmental entity. The complaint in this case was filed against Rose “Individually and as Superintendent of the Calloway County Schools,” and the “Board of Education of Calloway County, Kentucky.” In addition to money damages, appellant seeks, among other things, an injunction reinstating" }, { "docid": "15061556", "title": "", "text": "the sheriff personally. The majority holds that the sheriff is protected from liability under the doctrine of qualified immunity. The test for qualified immunity was enunciated by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2739, 73 L.Ed.2d 396 (1982), wherein the Court rejected inquiring into a public official’s state of mind in favor of a completely objective standard. Under Harlow, “... officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2738. The test thus focuses on the “objective legal reasonableness” of the official’s conduct. Id. at 819, 102 S.Ct. at 2739. The recognition of a qualified immunity defense reflects an attempt to balance the importance of a damage remedy to protect citizens’ rights and to deter unconstitutional conduct against the need-to allow public officials a margin of error when exercising their discretion “and the related public interest in encouraging the vigorous exercise of official authority.” Butz v. Economou, 438 U.S. 478, 504-06, 98 S.Ct. 2894, 2909-10, 57 L.Ed.2d 895 (1978); see also Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). The broader the range of an official’s responsibilities and duties, the broader the range of discretion provided by the doctrine of qualified immunity. Scheuer v. Rhodes, 416 U.S. 232, 247, 94 S.Ct. 1683, 1692, 40 L.Ed.2d 90 (1973). While his functions regarding this plaintiff were more than ministerial, the sheriff did not act as an executive endowed with broad discretion in exercising those responsibilities. He is, therefore, not entitled to as comprehensive a range of discretion under the qualified immunity doctrine as high executive officials. Applying the test for qualified immunity, the majority concludes that the sheriff did not violate a clearly established constitutional right; in my view that finding is untenable. The majority observes that the sheriff’s actions were taken in accord with unofficial custom in the county and that the sheriff’s interpretation of the language of" }, { "docid": "4445542", "title": "", "text": "of his Fourteenth Amendment right to life. E.g., Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Mairoana v. MacDonald, 596 F.2d 1072 (1st Cir. 1979). In the case at bar, it is undisputed that defendant officers were acting under color of state law. Thus, plaintiffs have stated a cause of action under 1983. Defendants urge that they cannot be liable under Section 1983 because, as local law enforcement officers, they have a qualified immunity in civil actions where they acted with a good faith belief based upon reasonable grounds that the measures they took were necessary. See Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Because the Court finds that there is no genuine issue of material fact as to the availability of the qualified immunity defense to defendants in this case, the Court grants defendants’ motion for summary judgment. Until recently, the qualified immunity defense required the establishment of both objective and subjective good faith. Wood v. Strickland, 420 U.S. 308, 320, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). “The objective element involves a presumptive knowledge of and respect for ‘basic, unquestioned constitutional rights.’ [Citation omitted.] The subjective component refers to ‘permissible intentions.’ ” Harlow, et al. v. Fitzgerald, - U.S. -■, -•, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982). Concluding, however, that “[t]he subjective element of the good faith defense frequently has proved incompatible with [the] admonition in Butz that insubstantial claims should not proceed to trial,” the Supreme Court has eliminated the subjective component. Id. It is now the rule that “... government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at-, 102 S.Ct. at 2738. As described in Scheuer v. Rhodes, supra, 416 U.S. at 247-48, 94 S.Ct. at 1692, “[i]t is" }, { "docid": "22172785", "title": "", "text": "984, 47 L.Ed.2d 128 (1976), other executive officers performing pros-ecutorial or adjudicative functions, see Butz v. Economou, 438. U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), and the President of the United States, Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982). . Under the qualified immunity standard, government officials are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738, 73 L.Ed.2d at 410. Qualified immunity has been recognized for certain Executive Branch officials, see Butz v. Eco-nomou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), governors and their aids, see Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), and police officers, see Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). . The Wood court divided the qualified immunity defense into objective and subjective elements. The objective element involves an official's knowledge of and respect for basic constitutional rights. The subjective component refers to \"permissible intentions.\" Wood, 420 U.S., at 322, 95 S.Ct. at 1000-01. Under this test, the defense of qualified immunity was defeated if an official \"knew or reasonably should have known that the action he took within the sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with malicious intention to cause a deprivation of constitutional rights or other injury____” Id. at 322, 95 S.Ct. at 1001. . We recognize that this aspect of Harlow dealt immediately with the extent of the \"qualified\" or “good faith” immunity defense. However, its rationale for eliminating the subjective intent inquiry for good faith immunity — to eliminate the frustrating interferences with continued official duties arising from the very nature of the litigation process — applies with even greater force where the official's special functions or constitutional status accords an absolute immunity to damage suits. Moreover, as Judge Higginbotham has emphasized for us “[the] distinction" }, { "docid": "22279555", "title": "", "text": "of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case.” Id. To successfully state a claim under 42 U.S.C. § 1983, a plaintiff must identify a right secured by the United States Constitution and the deprivation of that right by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988). The plaintiffs here assert two claims against the police officers as individuals: (1) that the breaking down of Bubenhofer’s door without a warrant constituted an unlawful search in violation of the Fourth Amendment; and (2) that the officers’ “tasering” and shooting of Bubenhofer constituted an excessive use of force. In response, all three officers assert qualified immunity. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), established that police officers enjoy qualified immunity from suits brought under § 1983. In Harlow v. Fitzgerald, 457 U.S. 800, 816-18, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Court eschewed a subjective qualified immunity standard and held instead that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986), extended the rule articulated in Harlow to hold that police officers are entitled to qualified immunity unless, “on an objective basis, it is obvious that no reasonably competent officer would have concluded that [the conduct was lawful]; but if officers of reasonable competence could disagree on this issue, immunity should be recognized.” The Court’s most recent major pronouncement on the law of qualified immunity as it relates to police officers stands in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The Anderson Court faced a plaintiff who had successfully argued at the appellate level that the “clearly established law” violated in his case was the Fourth Amendment’s proscription" }, { "docid": "20071214", "title": "", "text": "merely acts of the employees of the municipality, for which the municipality is not liable. Summary judgment on this issue is therefore granted. QUALIFIED IMMUNITY The court’s inquiry is not yet complete, however. The defendants contend that the officers are immune from suit based on the doctrine of qualified immunity. Government officials performing discretionary functions are generally shielded from liability for civil damages if their conduct does not violate a clearly established constitutional right of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). “Clearly established” means that the contours of the right existing at the time of the allegedly unlawful action were sufficiently clear that a reasonable official would have understood that what he was doing violated that right. Anderson v. Creighton, 483 U.S. 635, 639, 640, 107 S.Ct. 3034, 3038, 3039, 97 L.Ed.2d 523 (1987). Police officers sued under § 1983 may claim the defense of qualified immunity. Malley v. Briggs, 475 U.S. 335, 340, 106 S.Ct. 1092, 1095, 89 L.Ed.2d 271 (1986) (citing Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967)). Based on the plaintiff’s allegations in this case, this court cannot say that the officers are immune from suit. At the time this incident occurred, every person enjoyed a clearly established constitutional right to be free from unreasonable seizures. See Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985). A reasonable officer at that time would certainly have understood that continuing to beat a handcuffed suspect was unreasonable, and thus unconstitutional. This court holds that the officers may not assert the defense of qualified immunity. CONCLUSION This court thus grants summary judgment for defendants on the issues of the constitutionality of the search and municipal liability. Summary judgment is denied as to the legality of the seizure and the qualified immunity of the officers. Since this court has retained some of plaintiff’s federal claims, summary judgment is also denied as to his pendent state law battery claim. An Order will" }, { "docid": "20907964", "title": "", "text": "conduct was constitutional. See E. Clarke, Safford Unified Sch. Dist. No. 1 v. Redding: Why Qualified Immunity is a Poor Fit in Fourth Amendment School Search Cases, 24 B.Y.U. J. Pub.L. 313, 329 (2010). The Supreme Court first introduced the \"clearly established” prong in reference to an officer's good faith and held that a compensatory award would only be appropriate if an officer “acted with such an impermissible motivation or with such disregard of the [individual’s] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.” Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). In Harlow v. Fitzgerald, when the Supreme Court moved to an objective test, the clearly-established prong became a part of the qualified immunity test. See 457 U.S. at 818, 102 S.Ct. 2727 (\"We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights.”). It seems ironic that the federal courts would restrict a congressionally mandated remedy' for constitutional violations— presumably the rights of innocent people— and discourage case law development on the civil side — and restrict case law development to motions to suppress, which reward only the guilty and is a judicially created, rather than legislatively created, remedy. Commentators have noted that, \"[o]ver the past three decades, the Supreme Court has drastically limited the availability of remedies for constitutional violations in” exclusionary rule litiga tion in a criminal case, habeas corpus challenges, and civil litigation under § 1983. J. Marceau, The Fourth Amendment at a Three-Way Stop, 62 Ala. L.Rev. 687, 687 (2011). Some commentators have also encouraged the courts to drop the suppression remedy and the legislature to provide more — not less — civil remedies for constitutional violations. See Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. Ill. L.Rev. 363, 390-91 (1999)(\"Behavioral theory suggests that the exclusionary rule is not very effective in scaring police into behaving. ... These theories also suggest that a judicially administered damages regime ..." }, { "docid": "18788850", "title": "", "text": "he did not commit those acts and “discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts.” Id. at 2816. We thus hold that the denial of the deputies’ motion for summary judgment is ap-pealable for purposes of testing whether the defendant has demonstrated entitlement to summary judgment on grounds of qualified immunity. The denial of the County’s motion for summary judgment is not appealable, however. This motion was based primarily on the County’s assertion that there was no policy or practice of unreasonable searches and seizures. It was not based on immunity and therefore does not fall within the Mitchell exception. The issues on appeal are thus limited to those raised by the deputies’ motion on qualified immunity grounds. DISCUSSION Qualified immunity is a defense to lawsuits against governmental officials arising out of the performance of their duties. Its purpose is to permit such officials conscientiously to undertake their responsibilities without fear that they will be held liable in damages for actions that appear reasonable at the time, but are later held to violate statutory or constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967). According to the test for qualified immunity established by the Supreme Court, the deputies in this case are immune from liability (and trial) if “their conduct [did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Plaintiffs contend that when Kraus and Montgomery left the house and were surrounded by officers with drawn weapons and floodlights, the pair was arrested, and, further, that this seizure was not supported by probable cause. The deputies assert that there was no seizure in violation of established law and that in asking Kraus to come outside they reasonably believed that they performed an investigative stop for which probable cause is not required. See Terry v. Ohio, 392 U.S." }, { "docid": "13184160", "title": "", "text": "fully called to the judge’s attention. Because we have concluded that the judgment in Blackwell’s favor must be reversed in part, the plaintiffs are free to reassert those state claims not resolved by this opinion. Alternatively, the unresolved claims may be voluntarily dismissed and asserted in the state court. IV. Chief McGehee A. The § 1983 Claim Police officers are not absolutely immune from civil liability for § 1983 violations. Instead, the Supreme Court held in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), that they enjoy immunity only if they acted in good faith. The Court long adhered to a two-part test for determining the official’s good faith. The first prong was objective: whether the official knew or reasonably should have known that his conduct would violate the plaintiff’s constitutional rights. The second prong was subjective: whether the official acted with malicious intention to deprive the plaintiff of constitutional rights or with a similar bad motive. See, e.g., Procunier v. Navarette, 434 U.S. 555, 562-63, 566, 98 S.Ct. 855, 859-60, 862, 55 L.Ed.2d 24, 30-31 (1978); Wood v. Strickland, 420 U.S. 308, 320, 95 S.Ct. 992, 999, 43 L.Ed.2d 214, 224 (1975). In Harlow v. Fitzgerald, - U.S. -, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Court eliminated the second prong of the good-faith test. The Court explained that the costs attending litigation of subjective good faith are “peculiarly disruptive of effective government.” Id. at -, 102 S.Ct. at 2738, 73 L.Ed.2d at 410. Therefore, the good faith of government officials performing discretionary functions is now to be tested only by the objective standard. Officials “are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at -, 102 S.Ct. at 2738, 73 L.Ed.2d at 410. The plaintiffs allege that Chief McGehee committed two constitutional wrongs. First, they claim that he detained them in violation of their right to be free from unlawful searches and seizures. The absence of merit in the claim is determined" }, { "docid": "14552365", "title": "", "text": "(2) caused by a person acting under color of state law.” Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir.2006) (omitting citations). When applicable, however, the doctrine of qualified immunity protects government officials, including police officers, from § 1983 claims. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (establishing that police officers may claim qualified immunity from suits brought under § 1983). In general, qualified immunity applies when government officials’ conduct in performing discretionary functions “does not violate ‘clearly established’ statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. 2727. The goal of qualified immunity is to “avoid excessive disruption of government” by protecting public officials’ ability to exercise their discretion without undue fear of civil liability. Id. In particular, “police officers are entitled to qualified immunity unless, ‘on an objective basis, it is obvious that no reasonably competent officer would have concluded that [the conduct was lawful]....’” Russo v. City of Cincinnati, 953 F.2d 1036,1042 (6th Cir.1992) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). When a police officer invokes qualified immunity, the burden is on the Plaintiff to demonstrate that the officer is not immune. See Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir.2006). i. The Saucier Test for Qualified Immunity In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court established a two-prong test for qualified immunity in the context of an excessive force claim arising under § 1983. First, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s con duct violated a constitutional right?” Id. at 201, 121 S.Ct. 2151. Second, “if a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established.” Id. A motion for summary judgment on" } ]

[ { "docid": "23379317", "title": "", "text": "Kuenzle's skis. Prior to the district court's consideration of Tyrolia’s motion to dismiss, the Kuenzles reached a settlement with Hoback, leaving Tyrolia as sole defendant. . The \"minimum contacts\" principle was first articulated in International Shoe v. Washington, 326 U.S. 310, 311-12, 66 S.Ct. 154, 156, 90 L.Ed. 95 (1945), in the context of specific jurisdiction. The cause of action there arose out of forum-related contacts. Since that time, some courts have applied \"minimum contacts” analysis exclusively to specific jurisdiction cases. Glater v. Eli Lilly & Co., 744 F.2d 213, 216 (1st Cir. 1984). That restrictive characterization of minimum contacts is understandable given the Supreme Court's statement in Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 779, 104 S.Ct. 1473, 1480-81, 79 L.Ed.2d 790 (1984), that minimum contacts are not required for an assertion of general jurisdiction; rather, the proper gener al jurisdiction inquiry is whether the defendant’s contacts are sufficiently \" 'continuous and systematic.’ ” Id. (quoting Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 438, 72 S.Ct. 413, 414-15, 96 L.Ed. 485 (1952)). The strong implication from Keeton was that \"minimum contacts\" was a tool only of specific jurisdiction analysis. But since the issuance of Keeton, the Court has prefaced its discussion of both specific and general jurisdiction over nonresident defendants with the phrases \"minimum contacts” and \"traditional notions of fair play and substantial justice.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984) (quoting International Shoe, 326 U.S. at 316, 66 S.Ct. at 158). Since Helicopteros, the practice of using the phrase \"minimum contacts” to signify the broader due process inquiry into the sufficiency of any nonresident defendant’s contacts with a forum state, rather than just an analysis of the sufficiency of specific jurisdiction contacts, has been adopted by many courts, and is followed by our circuit. Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1532-33 (10th Cir.1996); Dobbs v. Chevron U.S.A., Inc., 39 F.3d 1064, 1068 (10th Cir.1994). . The district court and the parties applied the law of two specific jurisdiction cases" } ]

[ { "docid": "12545009", "title": "", "text": "long-arm statute collapses into a single due process inquiry. See Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 418 (5th Cir.1993); Schlobohm v. Schapiro, 784 S.W.2d 355, 356-57 (Tex.1990). Whether the exercise of personal jurisdiction over Defendant is consistent with the Due Process Clause of the United States Constitution likewise requires a two-pronged inquiry. First, the Court must conclude that Defendant has “minimum contacts” with Texas. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Second, the Court must determine that requiring Defendant to litigate in Texas does not offend “traditional notions of fair play and substantial justice.” Id.; see also Wilson v. Belin, 20 F.3d 644, 647 (5th Cir.1994); Ruston, 9 F.3d at 418. The “minimum contacts” aspect of due process can be satisfied by either finding general jurisdiction or specific jurisdiction. See Wilson, 20 F:3d at 647. For general jurisdiction, the defendant’s contacts with the foreign state must be both “continuous and systematic” and “substantial.” See Helicópteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417, 104 S.Ct. 1868, 1873, 80 L.Ed.2d 404 (1984); Villar, 990 F.2d at 1496. This case, however, turns on specific jurisdiction. Specific jurisdiction exists over a non-resident defendant if the defendant has “ ‘purposely directed’ his activities at the residents of the forum, and the litigation results from alleged injuries that ‘arise from or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985); see Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Edüd 1283 (1958); Villar v. Crowley Maritime Corp., 990 F.2d 1489, 1496 (5th Cir.1993). The critical inquiry for specific jurisdiction, therefore, concerns whether the defendant, by directing activities to the forum state, purposefully availed itself of the privilege of conducting activities within the forum state, thereby “invoking the benefits and protection of its laws.” Burger King Corp., 471 U.S. at 475, 105 S.Ct. at 2182. Ultimately, the defendant’s connection with the forum state must be of such a nature that the defendant should" }, { "docid": "15885408", "title": "", "text": "v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990). The Due Process Clause of the Fourteenth Amendment protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful “contacts, ties, or relations.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Exercising personal jurisdiction over a nonresident defendant is consistent with constitutional due process when “(1) that defendant has purposefully availed himself of the benefits and protections of the forum state by establishing ‘minimum contacts’ with the forum state; and (2) the exercise of jurisdiction over that defendant does not offend ‘traditional notions of fair play and substantial justice.’” Mink v. AAAA Development LLC, 190 F.3d 333, 336 (5th Cir.1999) (quoting International Shoe Co., 326 U.S. at 316, 66 S.Ct. 154 (1945)). “ ‘Minimum contacts’ can be established either through contacts sufficient to assert specific jurisdiction, or contacts sufficient to assert general jurisdiction.” Id.; Alpine View, 205 F.3d at 215. When a nonresident defendant has “purposefully directed its activities at the forum state and the litigation results from alleged injuries that arise out of or relate to those activities,” the defendant’s contacts are sufficient to support the exercise of specific jurisdiction over that defendant. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (internal quotation marks omitted). General jurisdiction may be asserted when a defendant’s contacts with the forum state are substantial and “continuous and systematic” but unrelated to the instant cause of action. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). A. Contacts Sufficient To Establish General Jurisdiction APA does not appear to have the kind of substantial, continuous, and systematic contacts with the State of Texas sufficient to support an exercise of general jurisdiction in this case. See Alpine Vieiv 205 F.3d at 217-18. See also Helicopteros Nacionales de Colombia, 466 U.S. at 414, 104 S.Ct. 1868; Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96" }, { "docid": "2547335", "title": "", "text": "413, 415 (5th Cir.1993). Because the Texas long arm statute allows for the exercise of personal jurisdiction whenever it is consistent with constitutional due process, the Court need only look to the dictates of the United States Constitution to decide the jurisdictional issue. See Wilson, 20 F.3d at 647 The Supreme Court has determined that in the context of personal jurisdiction due process requires that: (1) a defendant have “minimum contacts” with the forum state; and (2) exercising personal jurisdiction does not offend “traditional notions of fair play and substantial justice.” Asahi Metal Indus. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92, (1987)(citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, (1945)); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Wilson, 20 F.3d at 647; Polythane Systems v. Marina Ventures Intern., 993 F.2d 1201 (5th Cir.1993). II. MINIMUM CONTACTS The “minimum contacts” aspect of this analysis may be subdivided “into contacts that give rise to ‘specific’ personal jurisdiction and those that give rise to ‘general’ personal jurisdiction.” Wilson, 20 F.3d at 647. Specific jurisdiction exists when the nonresident defendant’s contacts with the forum state arise from, or are directly related to, the cause of action. Helicopteros Nacionales de Colombia, S.A v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 1872 n. 8, 80 L.Ed.2d 404 (1984); Wilson, 20 F.3d at 647. General jurisdiction exists when a defendant’s contacts with the forum state are unrelated to the cause of action but are “continuous and systematic” and considered substantial. Hall, 466 U.S. at 414 n. 9. 104 S.Ct. at 1872 n. 9 (1984); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 779 n. 11, 104 S.Ct. 1473, 1481 n. 11, 79 L.Ed.2d 790 (1984); Wilson, 20 F.3d at 647. Because the plaintiffs assert that both specific and general jurisdiction are present in this case, the Court will address each of these issues in turn. A. Specific Jurisdiction In products liability actions such as this, the Fifth Circuit follows the “stream of" }, { "docid": "23358614", "title": "", "text": "Cir.1985). Louisiana’s long-arm statute was first interpreted to permit service of process to the extent permitted by the due process clause. See Pedelahore v. Astropark, Inc., 745 F.2d 346 (5th Cir.1984). The pertinent statute was then specifically amended to so provide. Acts 1987, No. 418, adding subsection (B) to La.R.S. 13:32.01. The statutory and constitutional inquiries thus merge. The due process clause limits the courts’ power to assert personal jurisdiction over non-resident defendants to situations in which they engage in “certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citations omitted). Even where such “minimum contacts” exist, we also inquire whether requiring a defendant to litigate in the forum state would be unfair. See Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). 1. Minimum Contacts. This jurisdictional analysis has been further refined to vary with the nature of the underlying litigation. When a cause of action arises out of a defendant’s purposeful contacts with the forum, minimum contacts are found to exist and the court may exercise its “specific” jurisdiction. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Even a single, substantial act directed toward the forum can support specific jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Where a cause of action does not arise out of a foreign defendant’s purposeful contacts with the forum, however, due process requires that the defendant have engaged in “continuous and systematic contacts” in the forum to support the exercise of “general” jurisdiction over that defendant. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). In this situation, the forum state has no direct interest in the specific cause of action asserted. Accordingly, contacts of a more extensive quality and nature are required. As both sides" }, { "docid": "12241321", "title": "", "text": "customers with Digital’s name recognition. By maintaining a Web site which can be continuously accessed by Massachusetts residents, combined with the actions discussed above, Clue Computing does regularly solicit business in Massachusetts through its Web site, and therefore satisfies the jurisdictional requirements of § 3(d). I find that Hasbro has met its burden of establishing at this stage in the litigation that Clue Computing’s conduct meets the requirements of the state long-arm statute. IV. Constitutional Due Process In order to establish personal jurisdiction over a non-resident defendant in a way consistent with Constitutional due process, the defendant must either have “continuous and systematic activity, unrelated to the suit, in the forum state,” Foster-Miller, Inc., 46 F.3d at 144, or certain “minimum contacts with the forum state so that the exercise of jurisdiction does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). The former confers general jurisdiction; the latter, specific. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73 & n. 15, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The “minimum contacts” focus involves weighing the legal sufficiency of a specific set of interactions, see Helicopteros Nacionales de Colombia, S.A, v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), and compels the court to examine three distinct components — relatedness, purposeful availment, and reasonableness. See Burger King, 471 U.S. at 472-78. To structure this examination, the First Circuit, in United Elec. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080 (1st Cir.1992), developed a three-part test: First, the claim underlying the litigation must directly arise out of, or relate to, the defendant’s forum-state activities. Second, the defendant’s instate contacts must represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that state’s laws and making the defendant’s involuntary presence before the state’s courts foreseeable. Third, the exercise of jurisdiction must, in light of the" }, { "docid": "23379304", "title": "", "text": "person or property in the forum, due process would not be offended by the exercise of jurisdiction over a nonresident defendant if that defendant had “certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” Id. at 316, 66 S.Ct. at 158 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)). The “‘minimum contacts’ standard may be met in either of two ways.” Trierweiler v. Croxton & Trench Holding Carp., 90 F.3d 1523, 1532 (10th Cir.1996). First, a court may exercise specific jurisdiction if a “defendant has ‘purposefully directed’ his activities at residents of the forum ... and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985) (citations omitted) (emphasis added). Second, a court may exercise general jurisdiction where the defendant’s contacts, while not rising to the level of the traditional notion of presence in the forum state, are nonetheless “continuous and systematic.” Trierweiler, 90 F.3d at 1533 (quoting Helicopteros Nacionales de Colombia, S.A v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 1873, 80 L.Ed.2d 404 (1984)); Burger King, 471 U.S. at 473 n. 15, 105 S.Ct. at 2182 n. 15; Dobbs v. Chevron U.S.A., Inc., 39 F.3d 1064, 1068 (10th Cir.1994); Kennedy v. Freeman, 919 F.2d 126, 128 n. 2 (10th Cir.1990). Where “[gjeneral jurisdiction lies ... the state may exercise personal jurisdiction over the defendant, even if .the suit is unrelated to the defendant’s contacts with the state.” Trierweiler, 90 F.3d at 1533. “Whether a non-resident defendant has the requisite minimum contacts with the forum state to establish in personam jurisdiction must be decided on the particular facts of each case.” Shanks, 668 F.2d at 1166. “The plaintiff bears the burden of establishing personal jurisdiction over the defendant.” Behagen v. Amateur Basketball Ass’n of the United States, 744 F.2d 731, 733 (10th Cir.1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 1879, 85 L.Ed.2d" }, { "docid": "13334823", "title": "", "text": "Co. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). In the context of products liability the minimum contacts requirement turns, in some measure, on foreseeability. The Supreme Court has explained that “the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State [but] that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Id. at 297, 100 S.Ct. 559. The burden of establishing personal jurisdiction over the defendant is on the plaintiff. Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir.1996) (quoting Behagen v. Amateur Basketball Ass’n of the United States, 744 F.2d 731, 733 (10th Cir.1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 1879, 85 L.Ed.2d 171 (1985)). When the evidence presented on the motion to dismiss consists of affidavits and other written materials the plaintiff need only make a prima facie showing. Id. (quoting Behagen, 744 F.2d at 733). The district court must resolve all factual disputes in favor of the plaintiff. Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1075 (10th Cir.1995). This Court reviews the district court’s ruling on personal jurisdiction de novo. Id. The “minimum contacts” standard may be met in either of two ways. When the defendant has “continuous and systematic general business contacts” with the forum state, courts in that state may exercise general jurisdiction over the defendant. Helicopteros Nacionales de Colombia, S.A., v. Hall, 466 U.S. 408, 414-15, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Kuenzle, 102 F.3d at 455. When the “defendant has ‘purposely directed’ his activities at residents of the forum,” courts in that state may exercise specific jurisdiction in cases that “ ‘arise out of or relate to’ those activities.” Burger King v. Rudzewicz, 471 U.S. 462, 472-73, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citations omitted); Kuenzle, 102 F.3d at 455. In this case, Plaintiff Bell" }, { "docid": "16058808", "title": "", "text": "federal constitutional doctrine to determine whether personal jurisdiction exists over Defendants. Vetrotex Certainteed Corp. v. Consol. Fiber Glass Prods. Co., 75 F.3d 147, 150 (3d Cir.1996); 42 Pa.C.S.A. § 5322(b). The Due Process Clause of the Fourteenth Amendment requires that non-resident defendants have “certain minimum contacts with [the forum states] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Marten v. Finchuam, 499 F.3d 290, 296 (3d Cir.2007) (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). Minimum contacts with another state provides “fair warning” to a defendant that he or she may be subject to suit in that state. Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). These basic due process principles are reflected in the two distinct types of personal jurisdiction: (1) general jurisdiction; and (2) specific jurisdiction. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). First, general jurisdiction does not require the defendant’s contacts with the forum state to be related to the underlying cause of action, Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868, but the contacts must have been “continuous and systematic.” Id. at 416, 104 S.Ct. 1868. Second, specific jurisdiction is established when the basis of the “plaintiffs claim is related to or arises out of the defendant’s contacts with the forum.” Pennzoil Products Co. v. Colelli & Assoc., Inc., 149 F.3d 197, 201 (3d Cir.1998) (citations omitted). In determining whether specific jurisdiction exists, the Court is guided by a three-part inquiry. First, the defendant must have “purposefully directed” his activities at the forum. Marten, 499 F.3d at 296 (citing Burger King, 471 U.S. at 472, 105 S.Ct. 2174). Second, the plaintiffs claim must “arise out of or relate to” at least one of those specific activities. Id. (citing Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868). Third, courts may consider additional factors to ensure that the assertion of jurisdiction would comport with traditional conceptions of fair play" }, { "docid": "11404358", "title": "", "text": "VI. THE DUE PROCESS CLAUSE Alternatively, Mosseri argues the district court’s exercise of specific personal jurisdiction over him violated due process. A. Three-Part Due Process Test In specific personal jurisdiction cases, we apply the three-part due process test, which examines: (1) whether the plaintiffs claims “arise out of or relate to” at least one of the defendant’s contacts with the forum; (2) whether the nonresident defendant “purposefully availed” himself of the privilege of conducting activities within the forum state, thus invoking the benefit of the forum state’s laws; and (3) whether, the exercise-of personal jurisdiction comports with “traditional notions of fair play and substantial justice.” See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73, 474-75, 105 S.Ct. 2174, 2182-83, 85 L.Ed.2d 528 (1985); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984); Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); see also Oldfield, 558 F.3d at 1220-21; Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 630-31 (11th Cir.1996). The plaintiff bears the burden of establishing the first two prongs, and if the .plaintiff does so, “a defendant must make a ‘compelling case’ that the exercise of jurisdiction would violate traditional notions of fair play and substantial justice.” Diamond Crystal. Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249, 1267 (11th Cir.2010). B. Prong One: “Arising Out of’ or Relatedness “[A] • fundamental element of the specific jurisdiction calculus is that plaintiffs claim must arise out of or relate to at least one of the defendant’s contacts with the forum.’ ” Fraser v. Smith, 594 F.3d 842, 850 (11th Cir.2010) (quoting Oldfield, 558 F.3d at 1222 (additional internal quotation marks omitted)). “Our inquiry must focus on the direct causal relationship between the defendant, the forum, and the litigation.” Fraser, 594 F.3d at 850 (internal quotation marks omitted) (quoting Helicopteros, 466 U.S. at 414, 104 S.Ct. at 1872). “[A] relationship among the defendant, the forum, and the litigation is the essential foundation of in personum jurisdiction.... ” Helicopteros, 466 U.S." }, { "docid": "17912197", "title": "", "text": "Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (citing Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878)). The cornerstone of the due process inquiry is an analysis of the defendant’s contacts with the selected forum. The famous International Shoe case requires “certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). A court may exercise specific jurisdiction where the suit “arises out of’ or is related to the defendant’s contacts with the forum and the defendant “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); see also Helicopteros, 466 U.S. at 414 n. 8, 104 S.Ct. 1868. In contrast, in a controversy unrelated to a defendant’s contacts with the forum, a court may exercise general jurisdiction only where “continuous corporate operations within a state [are] thought so substantial and of such a nature as to justify suit against [the defendant] on causes of action arising from dealings entirely distinct from those activities.” International Shoe, 326 U.S. at 318, 66 S.Ct. 154; accord Helicopteros, 466 U.S. at 414 n. 9, 104 S.Ct. 1868. The standard for general jurisdiction is high; contacts with a state must “approximate physical presence.” Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir.2000). Put another way, a defendant must not only step through the door, it must also “[sit] down and [make] itself at home.” Glencore Grain Rotterdam B.V. v. Shivnath Rai Hamarain Co., 284 F.3d 1114, 1125 (9th Cir.2002). The parties agree that Tuazon’s claim arises from Reynolds’ conduct outside of Washington. Consequently, we must decide whether Reynolds’ contacts with Washington suffice to support the exercise of general jurisdiction. To this end, we follow a two-step process, asking first, whether" }, { "docid": "20541607", "title": "", "text": "constitutional due process inquiry. “The question of personal jurisdiction over out-of-state residents involves more than a technical ‘transaction of any business’ or the technical ‘commission of a tortious act’ within New Mexico. The meaning of those terms, in our statute, is to be equated with the minimum contacts sufficient to satisfy due process.” Tarango v. Pastrana, 94 N.M. 727, 616 P.2d 440, 441 (N.M.Ct.App.1980). To satisfy Due Process requirements, the defendant must have (1) sufficient minimum contacts with the forum state (2) such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Wash., 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). A plaintiff satisfies the “minimum contacts” standard by showing that the court may exercise either general or specific jurisdiction over the defendant. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). To establish specific jurisdiction, the plaintiff must show that the defendant “purposefully directed” his activities at residents of the forum, and that the plaintiffs injuries “arise out of or relate to” those activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). A defendant “purposefully directs” activities in a forum where the defendant makes (a) an intentional action that was (b) expressly aimed at the forum state (c) with knowledge that the brunt of the injury would be felt in the forum. Shrader v. Biddinger, 633 F.3d 1235, 1239-40 (10th Cir.2011). This ensures that an out-of-state defendant is not bound to appear in the forum to account for merely “random, fortuitous, or attenuated contacts” with the forum. Burger King Corp., 471 U.S. at 475, 105 S.Ct. 2174. A. Personal Jurisdiction and Minimum Contacts The facts of this case closely resemble those in Tercero v. Roman Catholic Diocese of Norwich, 132 N.M. 312, 48 P.3d 50 (2002). There, the plaintiff (“Tercero”) brought suit in state court in New Mexico against the Diocese of Norwich, a Catholic diocese in Connecticut, alleging that a priest incardinated within that diocese sexually" }, { "docid": "6519202", "title": "", "text": "courts interpret Minn.Stat. § 543.19 to reach as far as the Constitution allows; thus, if a court’s assertion of jurisdiction is consistent with the due process clause of the federal constitution, the long-arm statute’s requirements will also be met. Id. (citing Valspar Corp. v. Lukken Color Corp., 495 N.W.2d 408, 410 (Minn.1992)). The issue before the Court is therefore whether the assertion of jurisdiction in this case is consistent with the defendants’ federal due process rights. Under the due process clause, jurisdiction over a nonresident requires that the defendant have such minimum contacts with the forum state that the maintenance of a suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Minimum contacts are sufficient if the defendant purposefully avails himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Burger King v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985). This test is met if a defendant has deliberately engaged in activities within a state or created continuing obligations between a litigant and residents of the forum, and such actions invoke the benefits and protection of a state’s laws. Id. at 475-76, 105 S.Ct. at 2183-84. For personal jurisdiction to exist, there must be a relationship between the defendant, the forum, and the litigation. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). Due process analysis also distinguishes between “general” and “specific”, personal jurisdiction. A defendant is subject to general jurisdiction in the forum state if it conducts business in a continuous and systematic manner such that it becomes subject to the jurisdiction of the forum for any purpose, including those unrelated to the defendant’s .contacts with the forum. For specific jurisdiction over a defendant with minimum contacts with the forum, the due process clause requires that the case “arise out of or be related to” those contacts. Helicopteros Nacionales, 466 U.S. at 414," }, { "docid": "4640572", "title": "", "text": "constitutional due process. 1. Two Types of Personal Jurisdiction: General and Specific. To distinguish between general personal jurisdiction and specific personal jurisdiction, courts must examine the relationship between the cause of action and the defendant’s contact with the forum. “General personal jurisdiction arises from a party’s contacts to the forum state that are unrelated to the litigation; the test for general jurisdiction is whether the party had ‘continuous and systematic’ general business contacts with the forum state.” Delong Equipment Co. v. Washington Mills Abrasive Co. et al., 840 F.2d 843, 853 (11th Cir.1988) (quoting Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 438, 72 S.Ct. 413, 415, 96 L.Ed. 485 (1952)). If a defendant business is found to have the requisite continuous and systematic general business contacts with a forum, then it is amenable to suit in that forum even if plaintiff’s cause of action does not stem from or relate directly to defendant’s contacts. See Helicopteros Nacionales de Colombia, S.A. v. Hall, et al., 466 U.S. 408, 414-16, 104 S.Ct. 1868, 1872-73, 80 L.Ed.2d 404 (1984). With specific jurisdiction, however, the nature of defendant’s contacts with the state are such that it may only be held liable for causes of action stemming from a particular activity. The cause of action arises directly out of or is directly related to defendant’s contacts with the forum. Id. at 414 n. 8, 104 S.Ct. at 1872 n. 8. The facts in the case at bar indicate that NO-MIX lacked continuous and systematic contacts with Georgia. Therefore, if this Court has jurisdiction, it must be premised on specific personal jurisdiction. The test for determining specific personal jurisdiction is the two-pronged minimum contact analysis announced in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and refined in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). 2. Requirements of Constitutional Due Process for the Exercise of Specific Personal Jurisdiction. The constitutional inquiry begins and ends with the question posed by the Supreme Court in International Shoe, 326 U.S. 310, 66" }, { "docid": "15980750", "title": "", "text": "well as constitutional due process requirements. Doe v. National Medical Services, 974 F.2d 143, 145 (10th Cir.1992). Colorado’s long arm statute is coextensive with constitutional limitations imposed by the due process clause. Mr. Steak, Inc. v. District Court, 194 Colo. 519, 574 P.2d 95, 96 (1978). Therefore, if jurisdiction is consistent with the due process clause, Colorado’s long arm statute authorizes jurisdiction over a nonresident defendant. Under the due process clause of the Fourteenth Amendment, personal jurisdiction may not be asserted over a party unless that party has sufficient “minimum contacts” with the state, so that the imposition of jurisdiction would not violate “traditional notions of fair play and substantial justice.” Helicopteros Nacionales De Columbia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). A. Specific Jurisdiction Specific jurisdiction may be asserted if a defendant has “purposefully directed” its activities toward the forum state, and if the lawsuit is based upon injuries that “arise out of” or “relate to” the defendant’s contacts with the state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985) (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984) and Helicopteros, 466 U.S. at 414, 104 S.Ct. at 1872). The contacts must be established by the defendant itself. “The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum state.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958). In this case, Evener, an Ohio resident, has only two Colorado customers, but the neck yoke ring was sold to Big Sky, a Montana resident. Furthermore, Day’s lawsuit is not based on any action of these customers, or on any product sold to them. Evener’s sole link with Colorado stems from the unilateral activity of Big Sky. Big Sky’s contacts with Colorado cannot be used to impose personal jurisdiction" }, { "docid": "7123095", "title": "", "text": "1304, 1307 (Fed. Cir.1999) (same, discussing Nebraska long-arm statute). Two kinds of personal jurisdiction satisfy due process, “specific” and “general” jurisdiction. Id. “ ‘Specific jurisdiction “arises out of’ or “relates to” the cause of action even if those contacts are “isolated and sporadic.” ... General jurisdiction arises when a defendant maintains “continuous and systematic” contacts with the forum state even when the cause of action has no relation to those contacts.’ ” Id. (quoting LSI Indus. v. Hubbell Lighting, Inc., 232 F.3d 1369, 1375 (Fed.Cir.2000), in turn quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), and Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)); accord Epps, 327 F.3d at 648 (Eighth Circuit case also citing Helicopteros Nacionales de Colombia, 466 U.S. at 414, 104 S.Ct. 1868, for the distinctions between “general” and “specific” jurisdiction). The Federal Circuit Court of Appeals has adopted a three-factor test of “specific” jurisdiction for purposes of a patent case, which requires consideration of the following: (1) whether the defendant purposefully directed its activities at residents of the forum state; (2) whether the claim arises out of or relates to the defendant’s activities with the forum state; and (3) whether assertion of personal jurisdiction is reasonable and fair. Electronics For Imaging, Inc., 340 F.3d at 1350. This court will call these factors, respectively, the “purposefully directed” factor, the “claim arising from contacts” factor, and the “reasonable and fair” factor. As the Federal Circuit Court of Appeals has explained, “The first two factors correspond to the ‘minimum contacts’ prong of the International Shoe analysis, and the third factor with the ‘fair play and substantial justice’ prong.” Id. (referring to the seminal Supreme Court case on personal jurisdiction, International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). The court will consider each of these factors in turn. 3. Application of the standards a. The “purposefully directed” factor Meril Rivard contends that he did not direct any of his individual activities at this forum. However," }, { "docid": "5331345", "title": "", "text": "cause of action (specific jurisdiction), or on the defendant’s general contacts with the forum state, provided those contacts are “continuous and systematic”, (general jurisdiction). Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 473 n. 15, 105 S.Ct. 2174, 2181, 2182 n. 15, 85 L.Ed.2d 528 (1985) and Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8 and 9, 104 S.Ct. 1868, 1872 n. 8 and 9, 80 L.Ed.2d 404 (1984). Exercise of jurisdiction over the non-resident defendant must also be consistent with “traditional notions of fair play and substantial justice” whether specific or general jurisdiction is invoked. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). “[Gjeneral jurisdiction exists when there are sufficient contacts to justify an assertion of ‘personal jurisdiction over a defendant in a suit not arising out of or related to the defendant’s contacts with the forum.’ ” Covenant Bank for Savings v. Cohen, 806 F.Supp. 52, 55 (D.N.J.1992), quoting Hall, supra, 466 U.S. at 414 n. 9, 104 S.Ct. at 1872 n. 9. “Mere minimum contacts” are not enough to establish general jurisdiction— “The ■ nonresident’s contacts to the forum must be continuous and substantial.” Provident National Bank v. California Federal Savings & Loan Association, 819 F.2d 434, 437 (3d Cir.1987). Accord: Hall, supra, 466 U.S. at 415-16, 104 S.Ct. at 1872. “The constitutionality of an exercise of specific jurisdiction turns on whether the defendant has ‘purposefully directed’ its activity toward the forum state.” Applied Biosystems, supra, 772 F.Supp. at 1470. Due process requires the plaintiff to prove that the defendant “purposefully established ‘minimum contacts’ ” with the forum state such that it could “reasonably anticipate being haled into court there”, Burger King, supra, 471 U.S. at 474, 105 S.Ct. at 2183; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980) and Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). “[I]f the sale of a product [in the forum state] ... arises from the efforts of the manufacturer" }, { "docid": "10431987", "title": "", "text": "fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The due process clause of the Fourteenth Amendment limits the power of a state to exert personal jurisdiction over a nonresident defendant. The constitutional touchstone of the determination whether an exercise of personal jurisdiction comports with due process remains whether the defendant purposefully established ‘minimum contacts’ in the forum state; Asahi Metal Indus. Co., Ltd. v. Superior Court, 480 U.S. 102, 108-109, 107 S.Ct. 1026, 1030, 94 L.Ed.2d 92 (1987) (quotations omitted) (plurality opinion). In order to satisfy the minimum contacts requirement, the court must be able to point to “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its law.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). There are two distinct bases for finding that a defendant is subject to personal jurisdiction. If the plaintiff’s cause of action arises out of a defendant’s forum-related activities, that defendant may be subject to the state’s jurisdiction under ‘specific jurisdiction’ so long as jurisdiction is authorized by a ‘long-arm’ statute and the defendant has sufficient minimum contacts with the state as defined by International Shoe Co. v. Washington, 326 U.S. 310 [66 S.Ct. 154, 90 L.Ed. 95] (1945). See Reliance Steel Prods. Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 588 (3d Cir.1982). If the claim is connected to a defendant’s non-forum related activities, a defendant may be subject to the ‘general’ jurisdiction of the court so long as it has ‘continuous and substantial’ attachments with the forum state. Allied Leather, 785 F.Supp. at 497. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). In this case, Plaintiffs have not specified whether they seek specific or general jurisdiction over Defendant MEI. Instead, Plaintiffs have made a blanket assertion that jurisdiction with respect to MEI is proper based on the contacts" }, { "docid": "6198910", "title": "", "text": "a specific or general jurisdiction analysis. Standard of Review District court rulings on jurisdictional issues are to be reviewed de novo. Rambo v. American Southern Ins. Co., 839 F.2d 1415, 1417 (10th Cir.1988). The plaintiff bears the burden of establishing that the exercise of personal jurisdiction over the defendant is proper. In the preliminary stages of the litigation, however, that burden is light. Prior to trial, the plaintiff is only required to establish a prima facie showing of jurisdiction. All disputes of fact are to be construed in a light most favorable to the plaintiff. Behagen v. Amateur Basketball Ass’n of the United States, 744 F.2d 731, 733 (10th Cir.1984). Discussion The exercise of personal jurisdiction over a non-resident defendant must comply with the forum state’s long-arm statute as well as constitutional due process requirements. In the present case, the district court found that jurisdiction was proper under Colorado’s long-arm statute. Colo. Rev.Stat. § 13-1-124(1)(b). However, the court found that the imposition of jurisdiction over NMS in this case would violate NMS’ constitutional protection of due process. Specific Jurisdiction Under the due process clause of the Fourteenth Amendment, personal jurisdiction may not be asserted over a party unless that party has sufficient “minimum contacts” with the state, so that the imposition of jurisdiction would not violate “traditional notions of fair play and substantial justice.” Helicopteros Nacionales De Columbia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). Specific jurisdiction may be asserted if the defendant has “purposefully directed” its activities toward the forum state, and if the lawsuit is based upon injuries which “arise out'of” or “relate to” the defendant’s contacts with the state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985) (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984), and Helicopteros, 466 U.S. at 414, 104 S.Ct. at 1872). The contacts must be established by the" }, { "docid": "14036818", "title": "", "text": "Plaintiffs patent is not the proper inquiry on a Motion to Dismiss for lack of personal jurisdiction. Plaintiff has alleged patent infringement and this Court will construe the facts in light most favorable to Plaintiff and hold that the alleged patent infringement satisfies Florida’s statute on long-arm jurisdiction. B. Due Process Due process requires that the defendant have certain minimum contacts with the forum, such that the maintenance of the suit does hot offend “traditional notions of fair play and substantial justice.” Structural Panels, 814 F.Supp. at 1066.(citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). 1. Minimum Contacts Regardless of Plaintiff meeting the first part of the Court’s inquiry into the existence of personal jurisdiction, the Court finds that there are insufficient “minimum contacts” between Defendant and Florida to ensure due process. Minimum contacts within the forum may give rise to two types of personal jurisdiction: specific or general jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). To assert general jurisdiction over Defendant, there must, be substantial or “continuous and systematic” contacts with the forum to comport with due process. Williams Elec. Co. v. Honeywell, Inc., 854 F.2d 389, 392 n. 2 (11th Cir.1988). Even when the cause of action does not arise out of the nonresident’s activities with the forum state, due process is not offended if the court asserts personal jurisdiction over the defendant where there are sufficient contacts between the nonresident defendant and the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). Specific jurisdiction is exercised when the suit arises out of, or is related to, a party’s single or isolated contact with the forum. Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868. The court may exercise specific jurisdiction over a nonresident if the defendant has purposefully directed his activities to the forum state, and the alleged injury to the forum residents arises out of those activities. Structural Panels, 814 F.Supp. at 1066 (citing Burger King" }, { "docid": "5331344", "title": "", "text": "due process in light of the Fifth Amendment rather than the Fourteenth. The standards' applied are the same as those in a Fourteenth Amendment analysis. Dakota Industries, Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1389 n. 2 (8th Cir.1991); Daetwyler, supra, 762 F.2d at 293; and Applied Biosystems, Inc. v. Cruachem, Ltd., 772 F.Supp. 1458 (D.Del.1991). Once a defendant has properly raised a jurisdictional defense, the plaintiff bears the burden of proving that minimum constitutional requirements are satisfied. To sustain its burden, the plaintiff cannot rely on the allegations of the complaint, but must produce supporting affidavits “or other competent evidence”. North Penn Gas Co. v. Corning Natural Gas Corp., per curiam, 897 F.2d 687, 689 (3d Cir.), cert. denied, 498 U.S. 847, 111 S.Ct. 133, 112 L.Ed.2d 101 (1990). Personal jurisdiction is a fact-specific inquiry. The' focus is on the relationship among the defendant, the forum state and the litigation. Daetwyler, supra, 762 F.2d at 293. Jurisdiction may be based either on the conduct of the non-resident defendant which gave rise to the cause of action (specific jurisdiction), or on the defendant’s general contacts with the forum state, provided those contacts are “continuous and systematic”, (general jurisdiction). Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 473 n. 15, 105 S.Ct. 2174, 2181, 2182 n. 15, 85 L.Ed.2d 528 (1985) and Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8 and 9, 104 S.Ct. 1868, 1872 n. 8 and 9, 80 L.Ed.2d 404 (1984). Exercise of jurisdiction over the non-resident defendant must also be consistent with “traditional notions of fair play and substantial justice” whether specific or general jurisdiction is invoked. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). “[Gjeneral jurisdiction exists when there are sufficient contacts to justify an assertion of ‘personal jurisdiction over a defendant in a suit not arising out of or related to the defendant’s contacts with the forum.’ ” Covenant Bank for Savings v. Cohen, 806 F.Supp. 52, 55 (D.N.J.1992), quoting Hall, supra, 466 U.S. at 414 n. 9, 104" } ]

[ { "docid": "22269401", "title": "", "text": "possible presence of the Mexican Spotted Owl in the project area. Arguably, the owls or their habitat could be “present” despite the determination that the project would have “no effect” on them. However, Southwest Center cannot rely on the Forest Service Manual and Handbook, as this court has determined that it does not have the independent force and effect of law. Western Radio, 79 F.3d at 900-01 (denying claim that the Forest Service acted arbitrarily and capriciously by following a procedure that did not comply with the guidelines in its Manual and Handbook). Moreover, the Ninth Circuit has held that an agency may issue a categorical exclusion even where threatened or endangered species are present if the agency determines that the project will not impact negatively on the species. Pyramid Lake Paiute Tribe v. U.S. Dep’t of the Navy, 898 F.2d 1410, 1414-16, 1420 (9th Cir.1990). We find that the Forest Service did not abuse its discretion in issuing the categorical exclusion for the Rustler Sale. III. Exclusion of the Extra-record Documents Finally, we conclude that the district court properly struck extra-record documents submitted by Southwest Center. Judicial review of an agency decision typically focuses on the administrative record in existence at the time of the decision and does not encompass any part of the record that is made initially in the reviewing court. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973); Nevada Land Action Ass’n v. U.S. Forest Serv., 8 F.3d 713, 718 (9th Cir.1993). Review may, however, be expanded beyond the record if necessary to explain agency decisions. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988). This circuit has only allowed 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,” or (3) “when supplementing the record.is necessary to explain technical terms or complex subject matter.” Inland Empire, 88 F.3d at 703-04 (quoting Friends of the Payette, 988 F.2d at 997). Extra-record documents may also be" } ]

[ { "docid": "7560610", "title": "", "text": "decision in the instant ease and remand for review of the agency’s action under the arbitrary and capricious standard from § 318(g)(1) as mandated by the Supreme Court in Robertson. IV SCOPE OF REVIEW Appellants argue the district court improperly relied upon Dr. Noss’s testimony when it found the sales involve roadless and undeveloped areas, the presence of such areas mandate the preparation of an EIS, and a permanent injunction is appropriate until an EIS is prepared. Whether the district court exceeded its proper scope of review of the administrative record is a question of law we review de novo. McConney, 728 F.2d at 1201. In reviewing decisions of the district court, we may affirm on any ground supported by the record. Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir.1987). Based on the record, the district court apparently considered Dr. Noss’s affidavit in reaching its decision. The court’s opinion not only quoted the affidavit, but also enjoined only those harvest units designated by the affidavit as objectionable. The district court, however, did not indicate its reasons for considering this evidence, which was not included in the record. When reviewing an agency action, the district court “will engage in a substantial inquiry, but it must not substitute its own judgment for that of the Agency.” Abramowitz v. United States EPA 832 F.2d 1071, 1075 (9th Cir.1987). In most cases, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). “This standard of review is applicable to review of agency action under NEPA.” Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988), amended, 867 F.2d 1244 (9th Cir.1989). “However, certain circumstances may justify expanding review beyond the record or permitting discovery.” Id. For example, “an allegation that an EIS has failed to mention a serious, environmental consequence may be sufficient to permit the introduction of new evidence outside of the administrative record____” Id. at 1437 (citing County of Suffolk v." }, { "docid": "1621272", "title": "", "text": "and the choice made.’ Burlington Truck Lines v. United States, 371 U.S. 156, 168 [83 S.Ct. 239, 9 L.Ed.2d 207] (1962). While we may not supply a reasoned basis for the agency’s action that the agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196 [67 S.Ct. 1760, 91 L.Ed. 1995] (1947), we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595 [65 S.Ct. 829, 89 L.Ed. 1206] (1945). Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); see also Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1368-69 (Fed.Cir.2009) (stating that under rational basis review, the court will “sustain an agency action evincing rational reasoning and consideration of relevant factors”) (internal quotation marks omitted). In the context of a bid protest in which the agency has accepted the recommendation of GAO, the court must determine, on review, whether the [agency] justifiably followed the GAO’s recommendation.... The Claims Court [has] recognized that the controlling inquiry in deciding th[is] question was whether the GAO’s decision was a rational one. Honeywell, Inc. v. United States, 870 F.2d 644, 647 (Fed.Cir.1989) (emphasis added), rev’g 16 Cl.Ct. 173 (1989). As the Federal Circuit has further explained: [A] procurement agency’s decision to follow the Comptroller General’s recommendation, even though that recommendation differed from the contracting officer’s initial decision, [will be deemed] proper unless the Comptroller General’s decision itself was irrational. [And,] “[i]f the court finds a reasonable basis for the agency’s action, the court should stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations.” M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C.Cir.1971). Id.; see also Turner Constr. Co. v. United States, 645 F.3d 1377 (Fed.Cir.2011) (following Honeywell); Centech Grp., Inc. v. United States, 554 F.3d 1029, 1039 (Fed.Cir.2009) (following Honeywell). The court may find that an agency’s decision is irrational and should" }, { "docid": "13613456", "title": "", "text": "agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and prescribes proper methods of administrative action. Reviewing courts have taken a radar fix on this amorphous standard on many occasions, but invariably have encountered turbulence during the flight. In general, we review the agency’s procedures to ensure reasoned decision-making, but we defer to its expertise in the final analysis. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136, 152 (1971), obliges us “to engage in a substantial inquiry.” The agency’s decision “is entitled to a presumption of regularity. But that presumption is not to shield [the agency’s] action from a thorough, probing, in-depth review.” Id. We must consider “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” 401 U.S. at 416, 91 S.Ct. at 823, 28 L.Ed.2d at 153. The record plays a pivotal role, for “the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.” SEC v. Chenery Corporation, 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626, 636 (1943). Yet we “will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transportation v. Arkansas-Best Freight, 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447, 456 (1974), citing Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595, 65 S.Ct. 829, 836, 89 L.Ed. 1206, 1219 (1945). As we recently concluded, [W]e must accord the agency considerable, but not too much deference; it is entitled to exercise its discretion, but only so far and no further; and its decision need not be ideal or even, perhaps, correct so long as not “arbitrary” or “capricious” and so long as" }, { "docid": "9390262", "title": "", "text": "of review is a narrow one. A reviewing court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.. . . Although, this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, [401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1970)]. The agency must articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168 [83 S.Ct. 239, 245, 9 L.Ed.2d 207] (1962). While we may not supply a reasoned basis for the agency’s action that the agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196 [67 S.Ct. 1575, 1577, 91 L.Ed. 1995] (1947), we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595 [65 S.Ct. 829, 836, 89 L.Ed. 1206] (1945). Id. 419 U.S. at 285-286, 95 S.Ct. at 441-42. The “reasoned basis for the agency’s action” must be provided by the agency in the administrative proceedings! We “may not accept appellate counsel’s post hoc rationalizations for agency action.” Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962). As Argo-Collier Truck Lines Corp. v. United States, 611 F.2d 149, 152 (6th Cir. 1979), explains: It is essential to the decisionmaking process that the ICC articulate clearly its findings on the factual issues which form the basis for its decisions. Without such findings, a reviewing court is unable to perform its function of ascertaining that the ultimate conclusions are derived from the record before the agency and not the result of discretion exercised in an arbitrary and capricious manner. Trans-American Van Service, Inc. v. United States, 421 F.Supp. 308, 319 (N.D.Tex.1976). Since the Appellate Division, in dismissing appeals from the" }, { "docid": "10862146", "title": "", "text": "to or obtained by the Secretary, the administering authority, or the Commission during the course of the administrative proceeding ....” 19 U.S.C. § 1516a(b)(2)(A)(I) (1994) (emphasis added); Beker Indus. Corp. v. United States, 7 CIT 313, 315, 1984 WL 3727 (1984) (citing S.Rep. No. 96-249 at 247-48 (1979)). Plaintiffs generally may not supplement that record on judicial review. Rhone Poulenc, Inc. v. United States, 13 CIT 218, 222, 710 F.Supp. 341, 345 (1989), aff'd, 899 F.2d 1185 (Fed.Cir.1990). Whatever additional information that persuaded Commerce that Hoogovens had discontinued its practice of reimbursing NVW during the second period of review was not a part of the record for this review. Commerce correctly based its decision on the information in the record. V. Insufficient Explanation of Evidence Supporting Commerce’s Finding of Reimbursement Hoogovens argues that evidence on the record does not support Commerce’s finding of reimbursement. The law requires substantial evidence to sustain Commerce’s decision. Con solidated Edison, 305 U.S. at 229, 59 S.Ct. 206. As noted earlier, substantial evidence is relevant evidence that a “reasonable mind might accept as adequate to support a conclusion.” Id. “As a general rule, an administrative agency must articulate the reasons supporting its decision, enabling the court to review whether the agency acted arbitrarily.” Shieldalloy Metallurgical Corp. v. United States, 20 CIT -, -, 947 F.Supp. 525, 529 (1996) (citations omitted). Commerce must articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). While this Court may not supply a reasoned basis for the agency’s action that Commerce itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), it will uphold a decision of less than ideal clarity if the agency’s path may be reasonably discerned, Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595, 65 S.Ct. 829, 89 L.Ed. 1206 (1945). Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974) (agency’s treatment of evidence not" }, { "docid": "13613457", "title": "", "text": "its judgment for that of the agency.” 401 U.S. at 416, 91 S.Ct. at 823, 28 L.Ed.2d at 153. The record plays a pivotal role, for “the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.” SEC v. Chenery Corporation, 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626, 636 (1943). Yet we “will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transportation v. Arkansas-Best Freight, 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447, 456 (1974), citing Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595, 65 S.Ct. 829, 836, 89 L.Ed. 1206, 1219 (1945). As we recently concluded, [W]e must accord the agency considerable, but not too much deference; it is entitled to exercise its discretion, but only so far and no further; and its decision need not be ideal or even, perhaps, correct so long as not “arbitrary” or “capricious” and so long as the agency gave at least minimal consideration to the relevant facts as contained in the record. American Petroleum Institute v. EPA, 661 F.2d 340, 349 (5th Cir. 1981). You Deserve National Attention? Houston and American label as arbitrary and capricious the FAA’s decision administratively to impose a perimeter rule on flights to and from National. We disagree. While the Courts of Appeals have on numerous occasions taken an administrative agency to task for its failure to follow correct procedures or to proffer an acceptable reason for its actions, we find that the FAA and DOT have acted reasonably and in good faith to solve a difficult problem. The agency carefully considered all the factors and arrived at a reasonable judgment. Overton Park, supra. In no way do the rules before us constitute arbitrary and capricious agency action. The enormous record in this case bolsters the .decision, see Chenery, supra, and the arguments of Houston and American, although sincere and not without merit, do not convince us to the contrary. Houston and American contend that no" }, { "docid": "931386", "title": "", "text": "(9th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1559, 118 L.Ed.2d 207 (1992). Because review is narrow, the court normally should not accept new evidence, but limit its examination to the administrative record. See, e.g., Friends of Payette v. Horseshoe Bend Hydroelectric, 988 F.2d 989, 997 (9th Cir. 1993). Exceptions to the general rule exist when: (1) the agency has relied on documents not in the record, Friends of Payette, 988 F.2d at 997; (2) a plaintiff alleges in a challenge to an EIS that an agency failed to consider a serious environmental consequence, Animal Defense Council v. Hodel, 840 F.2d 1432, 1437 (9th Cir.1988), corrected, 867 F.2d 1244 (9th Cir.1989); or (3) a plaintiff has made a “strong showing” of agency-bad faith. Id. Affidavits from experts can be used to explain agency action. In Idaho Conservation League v. Mumma, 956 F.2d 1508, 1520 n. 22 (9th Cir.1992), the Ninth Circuit determined that, in a challenge to a Forest Service plan, it was proper to rely on analysis of a Forest Service computer program performed by an expert witness, although the analysis was outside the administrative record: “A court may consider evidence outside the administrative record as necessary to explain agency action____ The purpose of the court’s enquiry should be to ascertain whether the agency considered all relevant factors or fully explicated its course of conduct or grounds of decision.” Id. at 829. The issues presented by this case are sufficiently complex with the affidavit, let alone without it, to justify using it as needed. Mumma, 956 F.2d at 1520 n. 22; see also, Citizens For Environmental Quality v. United States, 731 F.Supp. 970, 983 (D.Colo. 1989). “The district court may also look outside the record ... when supplementing the record is necessary to explain technical terms or complex subject matter.” Friends of Payette, 988 F.2d at 997. Here, the object of scrutiny has been the subject of on-going scientific study by teams of researchers, analyzing technical and complex environmental and biological information. Mr. Sisco’s declaration will be helpful in highlighting perceived deficiencies in the environmental review process, and" }, { "docid": "281161", "title": "", "text": "602 F.3d 1125, 1131 (9th Cir.2010) (“Generally, judicial review of an agency decision is limited to the administrative record on which the agency based the challenged decision.”); Sw. Ctr. for Biological Diversity v. U.S.F.S., 100 F.3d 1443, 1450 (9th Cir.1996) (“Judicial review of an agency decision typically focuses on the administrative record in existence at the time of the decision and does not encompass any part of the record that is made initially in the reviewing court.”); Asarco, Inc. v. E.P.A., 616 F.2d 1153, 1159 (9th Cir.1980) (“[Ajgency action must be examined by scrutinizing the administrative record at the time the agency made its decision.”). This rule ensures that the reviewing court affords sufficient deference to the agency’s action. The APA gives an agency substantial discretion “to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989). “When a reviewing court considers evidence that was not before the agency, it inevitably leads the reviewing court to substitute its judgment for that of the agency.” Asarco, 616 F.2d at 1160. In so imposing its judgment, the reviewing court effectively conducts a de novo review of the agency’s action rather than limiting itself to the deferential procedural review that the APA’s arbitrary or capricious standard permits. See River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir.2010) (per curiam). But we have also recognized several exceptions to this rule. Under Lands Council, a reviewing court may consider extra-record evidence where admission of that evidence (1) is necessary to determine “ ‘whether the agency has considered all relevant factors and has explained its decision,’ ” (2) is necessary to determine whether “ ‘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 plaintiffs make a showing of agency bad faith.’ ” 395 F.3d at 1030 (quoting Sw. Ctr. for Biological Diversity" }, { "docid": "15197628", "title": "", "text": "371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)); see also Gilbert v. Nat’l Transp. Safety Bd., 80 F.3d 364, 368 (9th Cir.1996); Friends of the Earth v. Hintz, 800 F.2d 822, 831 (9th Cir.1986) (“court may not set aside agency action as arbi trary or capricious unless there is no rational basis for the action”). In reviewing the agency’s explanation, the court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” State Farm, 463 U.S. at 43, 103 S.Ct. 2856 (citing Bowman Transp. Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974) and Citizens to Preserve Over-ton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). In conducting this review, the “focal point ... should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Review may be expanded beyond the record, however, if it is necessary to explain agency decisions. Animal Def. Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988). In the Ninth Circuit, extra-record materials are allowed (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, or (3) when supplementing the record is necessary to explain technical terms or complex subject matter. Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 704 (9th Cir.1996). Extra-record documents may also be admitted “when plaintiffs make a showing of agency bad faith.” Nat’l Audubon Soc. v. United States Forest Serv., 46 F.3d 1437, 1447 n. 9 (9th Cir.1993). All of these exceptions are provided in order to ensure the integrity of the administrative process. B. Motions to strike In support of its motion for summary judgment, ACC submits the declaration of Dr. Stephen Hockaday, ACC’s expert on aircraft operation forecasting, in which he summarizes and attaches" }, { "docid": "7185364", "title": "", "text": "for abuse of discretion. Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 849 (9th Cir.1985). A. As a preliminary matter, the EPA argues that the district court improperly considered evidence beyond the four corners of the administrative record. Generally, judicial review of agency action is limited to review of the record on which the administrative decision was based. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973), quoted in Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 1606, 84 L.Ed.2d 643 (1985); Friends of the Earth v. Hintz, 800 F.2d 822, 828-29 (9th Cir.1986). We have recognized, however, certain exceptions to this general rule. The court may find it necessary to review additional material to explain the basis of the agency’s action and the factors the agency considered. Friends of the Earth, 800 F.2d at 829; Asarco, Inc. v. EPA, 616 F.2d 1153, 1159-60 (9th Cir.1980). Moreover, the court may consider, particularly in highly technical areas, substantive evidence going to the merits of the agency’s action where such evidence is necessary as background to determine the sufficiency of the agency’s consideration. Asarco, 616 F.2d at 1160. Nonetheless, the court may not weigh the evidence to determine the correctness or wisdom of the agency’s decision. Id. at 1160-61. The statutory scheme here strongly suggests that this is an appropriate case for consideration of matters outside of the administrative record. Subsection (c)(4) carefully apportions jurisdiction to review the EPA’s suspension order between the courts of appeals and the district courts: “final order[s] on the question of suspension following a hearing shall be reviewable in accordance with section 136n [in the courts of appeals].” By contrast, emergency suspension orders, issued without the benefit of an agency hearing, are to be reviewed by the district courts." }, { "docid": "3002548", "title": "", "text": "with deference does not mean, however, that the court will not review the state board decisions to determine whether their respective analyses help explain the federal administrative record now before the court. Ill NEPA CHALLENGE A. Standard of Review Review of agency determinations under both NEPA and the CWA is generally limited to the administrative record. FOE v. Hintz, 800 F.2d at 828-29; Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988). Under certain circumstances, the court may consider evidence outside the record. Animal Defense Council, 840 F.2d at 1436. Circumstances relevant here include (1) “when necessary to explain the agency’s action,” Id.; (2) when “necessary to explain technical terms or complex subject matter involved in the agency action,” Id.; and (3) when necessary “to ascertain whether the agency considered all relevant factors or fully explicated its course of conduct or grounds of decision,” FOE v. Hintz, 800 F.2d at 829. FOE and the government offer a variety of extra-record evidence, including the decisions of the state boards and declarations of various scientists and engineers. In most instances, the extra-record evidence explains the data and factors on which the Navy and the Corps relied, and thus can be relied upon by the court. Judicial review of an agency’s preparation of an EIS is governed by the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(D) (1982), under which the court may set aside agency action undertaken “without observance of procedure required by law.” Northwest Coalition for Alternatives to Pesticides v. Lyng, 844 F.2d 588, 590-91 (9th Cir.1988). Because “NEPA is essentially a procedural statute”, the court can not “substitute its judgment for that of the agency concerning the wisdom or prudence of a proposed action.” Id. Therefore, the adequacy of an EIS depends upon the rule of reason; “a reviewing court may not ‘fly speck’ an EIS and hold it insufficient on the basis of inconsequential, technical deficiencies.” Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 815 (9th Cir.1987) (citations omitted). Thus, the issue before the court is not whether CAD will work or whether the court" }, { "docid": "7560611", "title": "", "text": "its reasons for considering this evidence, which was not included in the record. When reviewing an agency action, the district court “will engage in a substantial inquiry, but it must not substitute its own judgment for that of the Agency.” Abramowitz v. United States EPA 832 F.2d 1071, 1075 (9th Cir.1987). In most cases, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). “This standard of review is applicable to review of agency action under NEPA.” Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988), amended, 867 F.2d 1244 (9th Cir.1989). “However, certain circumstances may justify expanding review beyond the record or permitting discovery.” Id. For example, “an allegation that an EIS has failed to mention a serious, environmental consequence may be sufficient to permit the introduction of new evidence outside of the administrative record____” Id. at 1437 (citing County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1384-85 (2d Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978)). In that case, we explained: the district court may extend its review beyond the administrative record and permit the introduction of new evidence in NEPA cases where the plaintiff alleges “that an EIS has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept stubborn problems or serious criticism under the rug.” Id. (quoting County of Suffolk, 562 F.2d at 1384-85 (citations omitted)). We discussed this exception in Animal Defense Council but found the exception inapplicable on the facts. Id. Moreover, review of matters beyond the administrative record may be appropriate where special review procedures are prescribed by Congress. See Public Power Council v. Johnson, 674 F.2d 791, 794-95 (9th Cir.1982). In Johnson, the court had original jurisdiction under 16 U.S.C. § 839(e)(5) (1988), which “streamlined judicial review to facilitate further the urgent reallocation of power.” Id. at 795. There, this court allowed limited discovery of" }, { "docid": "22911891", "title": "", "text": "existing native vertebrate species and provide that habitat for species chosen under § 219.19 is maintained and improved to the degree consistent with multiple-use objectives established in the plan.” Because this section refers to § 219.19, our Regulation 219.19 analysis applies with equal force to this section. . This example is meant to be illustrative only. For each species, the particular habitat analyzed and the effects of the various alternatives on those habitats varied. . The Service conducted no analysis at all for the wet-sloped cutthroat trout, presumably because it did not believe that the trout inhabited the decision area. See Final EIS at 111:37. . The Service argues that we cannot consider Mills' declaration, because it was submitted with Plaintiffs' district court motion for summary judgment and was never part of the administrative record. Although the general rule prevents consideration of evidence outside the administrative record, \"the court may consider, particularly in highly technical areas, substantive evidence going to the merits of the agency’s action where such evidence is necessary as background to determine the sufficiency of the agency’s consideration.\" Love v. Thomas, 858 F.2d 1347, 1356 (9th Cir.1988), cert. denied sub nom. AFL-CIO v. Love, 490 U.S. 1035, 109 S.Ct. 1932, 104 L.Ed.2d 403 (1989) (citation omitted). This is because “[i]t will often be impossible, especially when highly technical matters are involved,. for the court to determine whether the agency took into consideration all relevant factors unless it looks outside the record to determine what matters the agency should have considered but did not.” Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir.1980). To the extent Mills' declaration is submitted to show that the Service overlooked factors relevant to a proper population viability analysis, we will consider it. .As a preliminary matter, the Service argues that Plaintiffs' claim is procedurally barred. The Service cites Environment Now! v. Espy, 877 F.Supp. 1397, 1420 (E.D.Cal.1994), for the proposition that Regulation 219.19 \"applfies] solely to the promulgation and management of forest plans, not individual timber sales” so as to ban a challenge to the site-specific Upper Sunday plan. Environment Now!" }, { "docid": "23090420", "title": "", "text": "parties never agreed as to the form the Secretary’s order should take. Thompson filed a timely petition for review in this court, but all proceedings were stayed pending the Secretary’s decision on Thompson’s motion for reconsideration. The Secretary denied Thompson’s motion, and this court lifted the stay of proceedings in May of 1988. DISCUSSION Jurisdiction and Standard of Review The Secretary of Labor had jurisdiction over Thompson’s ERA claims pursuant to 42 U.S.C. section 5851(b). This court has jurisdiction over this appeal under 42 U.S.C. section 5851(c). Pursuant to section 5851(c), we review the Secretary’s decision under the Administrative Procedure Act, 5 U.S.C. section 706. “We will set aside the agency decision if it is ‘unsupported by substantial evidence’ or ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”’ Mackowiak v. University Nuclear Sys., Inc., 735 F.2d 1159, 1162 (9th Cir.l984)(quoting 5 U.S.C. section 706(2)(A), (E)). To determine whether an agency decision was arbitrary and capricious, the court “must consider whether the [Secretary’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). I. The Administrative Record Initially, the parties dispute whether certain letters relied on by Thompson were part of the administrative record. Generally, judicial review of agency action is limited to review of the record on which the administrative decision was based. See, e.g., id. at 420, 91 S.Ct. at 825. The reviewing court can go outside the administrative record but should consider such evidence relevant to the substantive merits of the agency decision only for the limited purpose of background information or to determine whether the agency considered all the relevant factors. See Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir.1980); see also Love v. Thomas, 858 F.2d 1347, 1356 (9th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1932, 104 L.Ed.2d 403 (1989). If the court determines that the agency did not consider all the relevant factors then it should" }, { "docid": "23090421", "title": "", "text": "the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). I. The Administrative Record Initially, the parties dispute whether certain letters relied on by Thompson were part of the administrative record. Generally, judicial review of agency action is limited to review of the record on which the administrative decision was based. See, e.g., id. at 420, 91 S.Ct. at 825. The reviewing court can go outside the administrative record but should consider such evidence relevant to the substantive merits of the agency decision only for the limited purpose of background information or to determine whether the agency considered all the relevant factors. See Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir.1980); see also Love v. Thomas, 858 F.2d 1347, 1356 (9th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1932, 104 L.Ed.2d 403 (1989). If the court determines that the agency did not consider all the relevant factors then it should remand the matter to the agency “and not compensate for the agency’s dereliction by undertaking its own inquiry into the merits.” Asarco, 616 F.2d at 1160. The whole administrative record, however, “is not necessarily those documents that the agency has compiled and submitted as ‘the’ administrative record.” Exxon Corp. v. Department of Energy, 91 F.R.D. 26, 32 (N.D.Tex.1981) (emphasis in original). . “The ‘whole’ administrative record, therefore, consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency’s position.” Id. at 33 (emphasis added); see also Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988), corrected, 867 F.2d 1244 (1989); National Wildlife Federation v. Burford, 677 F.Supp. 1445, 1457 (D.Mont.1985). The Secretary argues that these letters should not be considered part of the record on review because they were not before the AU. The Secretary’s position is without merit. The correspondence was sent to the AU, who, at the very least, indirectly considered the settlement negotiations when he approved the recommended order that was" }, { "docid": "2780931", "title": "", "text": "Finding of No Significant Impact (“FON-SI”) for the project for a three-year construction contract. August 28, 1997 Phase I design plans approved. January 19, 1998 Compliance Feasibility Paper issued. February 20, 1998 Request for Proposals issued. August 5, 1998 NPS modified the FON-SI to change the project so as to be implemented with a two-year construction schedule. PRELIMINARY CONSIDERATIONS Plaintiffs and Defendants have moved to exclude declarations submitted by the opposing party in support of their motion for summary judgment. It is undisputed that the focal point for judicial review is the administrative record before the agency at the time of the agency’s decision and “not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). There are, however, exceptions to this general rule. In Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988), the Ninth Circuit explained as follows: However, certain circumstances may justify expanding review beyond the ree-ord or permitting discovery. See, e.g., Public Power Council v. Johnson, 674 F.2d 791, 793 (9th Cir.1982). The district court may inquire 'outside the administrative record when necessary to explain the agency’s action. Id. at 793-94. When such a failure to explain agency action effectively frustrates judicial review, the court may “obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.” Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). The court’s inquiry outside the record is limited to determining whether the agency has considered all relevant factors or has explained its course of conduct or grounds of decision. [Friends of Earth v.]Hintz, 800 F.2d[822] at 829[(9th Cir.1986)]. The district court may also inquire outside of the administrative record “when it appears the agency has relied on documents or materials not included in the record.” Id. In addition, discovery may be permitted if supplementation of the record is necessary to explain technical terms or complex subject matter involved in the agency action. Id. In the present" }, { "docid": "22963825", "title": "", "text": "determine whether the administrative record was adequate, and the district court based its decision on its review of the record. As the Ninth Circuit has stated: It will often be impossible, especially when highly technical matters are involved, for the court to determine whether the agency took into consideration all relevant factors unless it looks outside the record to determine what matters the agency should have considered but did not. Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir.1980). Other courts have similarly held that a reviewing court evaluating agency action on the administrative record may consider additional evidence as either background information to aid the court’s understanding, or to determine if the agency examined all relevant factors or adequately explained its decision. See Missouri Coalition for the Environment v. Corps of Engineers of the U.S. Army, 866 F.2d 1025 (8th Cir.1989); Love v. Thomas, 858 F.2d 1347 (9th Cir.1988); Abington Memorial Hosp. v. Heckler, 576 F.Supp. 1081 (E.D.Pa.1983), aff'd, 750 F.2d 242 (3d Cir.1984). However, the reviewing court “must be careful not to allow such evidence to change the character of the hearing from one of review to a trial de novo.” Town of Burlington v. Dep’t. of Educ., 736 F.2d 773, 791 (1st Cir.1984), aff'd on other grounds, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). The court in Sterlingwear of Boston, Inc. v. United States, 11 Cl.Ct. 879 (1987), held that a court conducting record review of agency proceedings may make findings of fact de novo where a party has demonstrated that proposed evidence is newly discovered or was unavailable to the agency at the time of its administrative action. Even so, we decline to transform the entire review process into a de novo consideration of the evidence in light of the Hayes affidavit because of the express language of CERCLA, which limits our review to an arbitrary and capricious standard on the record. Furthermore, we believe that in a highly technical area such as the one at issue, federal courts are ill-equipped to engage in de novo review of such evidence presented to" }, { "docid": "9878148", "title": "", "text": "700. . On January 30, 1989, the AMA filed in this court a motion to take judicial notice of seven documents, five of which had been submitted to the EPA during the special comment period. The documents contain reports, analyses, and comments by other federal agencies and the AMA criticizing the placer mining regulations. On February 3, 1989, this court ordered the motion construed as a motion to supplement the record and referred it to this panel for disposition. We deny the AMA's motion. Judicial review of agency actions should generally be confined to the original record upon which the actions were based. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971); Love v. Thomas, 858 F.2d 1347, 1356 (9th Cir.1988), cert. denied, - U.S. -, 109 S.Ct. 1932, 104 L.Ed.2d 403 (1989). The reviewing court may consider information supplemental to the record only exceptionally: for instance, if the information is necessary as background \"to explain the basis of the agency’s action and the factors the agency considered.\" Id. In short, it is not \"appropriate ... for either party to use post-decision information as a new rationalization either for sustaining or attacking the Agency’s decision.” Association of Pacific Fisheries, 615 F.2d at 811-12. The original record here adequately explains the basis of the EPA’s placer mining regulations and demonstrates that the EPA considered the relevant factors. The EPA did not rely on the information contained in the AMA’s proffered documents, nor does the information address issues not already present in the record. See Friends of the Earth v. Hintz, 800 F.2d 822, 829 (9th Cir.1986) (discussing \"exceptions ... to the rule that review of agency action is limited to the administrative record\"). The AMA therefore cannot use the information, as it appears to be doing, to attack the regulations. On the same principles, we grant both the EPA’s motion to strike portions of the AMA’s and Rybacheks’ briefs, and the AMA’s motion to strike portions of intervenor Trustees for Alaska’s brief, all of which rely on information outside the administrative" }, { "docid": "10862147", "title": "", "text": "might accept as adequate to support a conclusion.” Id. “As a general rule, an administrative agency must articulate the reasons supporting its decision, enabling the court to review whether the agency acted arbitrarily.” Shieldalloy Metallurgical Corp. v. United States, 20 CIT -, -, 947 F.Supp. 525, 529 (1996) (citations omitted). Commerce must articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). While this Court may not supply a reasoned basis for the agency’s action that Commerce itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), it will uphold a decision of less than ideal clarity if the agency’s path may be reasonably discerned, Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595, 65 S.Ct. 829, 89 L.Ed. 1206 (1945). Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974) (agency’s treatment of evidence not arbitrary where court can discern a rational basis for it). According to the defendant’s brief, Commerce based its finding on Hoogovens’ questionnaire responses, credit memoranda, sales invoices to U.S. customers, and the Hoogovens-NVW agency agreement. (Def.’s Opp’n to Mots. J. Agency R. at 30-32 & apps. 3-4 (Conf.Docs. 41, 48).) Commerce failed, however, to articulate a reasoned basis for its decision beyond the following conclusory statements: “The Department has determined that the evidence of record in this review demonstrates that Hoogovens has agreed to reimburse NVW, the importer of record, for antidumping duties. Therefore, for the final results we have applied the reimbursement regulation.” (Hoogovens Mem. Points & Authorities in Support Mot. J. on Agency R. ex. 10 at 1 (ITA Final Analysis Mem., Aug. 29, 1996).) The Final Determination states, “[a]s discussed above, the evidence of record demonstrates that Hoogovens has agreed to reimburse NVW for antidumping duties. Therefore, the regulation applies.” Final Determination at 48,-471. At oral argument, the defendant acknowledged that the Final Determination does not, in fact, discuss the evidence upon" }, { "docid": "18342081", "title": "", "text": "the agency.” Citizens to Preserve Overton Park v. Volpe, supra, at 416 [91 S.Ct. at 823-824.] The agency must articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168 [83 S.Ct. 239, 245-246, 9 L.Ed.2d 207] (1962). While we may not supply a reasoned basis for the agency’s action that the agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196 [67 S.Ct. 1575, 1577, 91 L.Ed. 1995] (1947), we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595 [65 S.Ct. 829, 836, 89 L.Ed. 1206] (1945). Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 283-284, 95 S.Ct. 438, 440-441, 42 L.Ed.2d 447 (1974). In a similar vein, the Third Circuit similarly stated: Under the “arbitrary and capricious” standard, the district court sits neither as a fact finder nor as a judge of the weight of the evidence. The task of the court, however, is not to routinely endorse agency action but rather to review thoroughly the administrative record to insure that a rational basis exists for the agency’s action. If such a rational basis exists the inquiry must end there and the wisdom of the agency’s action is of no further judicial moment. Lukens Steel Co. v. Klutznick, 629 F.2d 881 at 886 (3d Cir. 1980). A narrow standard of review is particularly appropriate in this case. The accuracy of various statistics is often the focus of biased, heated and complex argument. Those who challenge them attack both the method of collecting raw data and the method of adjustment used to achieve the final result. In the execution of the census, these disputes are best resolved not by the courts but by the Bureau itself, whose experience with prior censuses and expertise in the collection and analysis of statistical information render it especially qualified to make the appropriate decisions. See Local 2855 AFGE (AFL-CIO) v. United States, supra, 602 F.2d at 578; 4" } ]

[ { "docid": "22722063", "title": "", "text": "Per Curiam. A long line of this Court’s precedents acknowledges that, generally, a judge is immune from a suit for money damages. See, e. g., Forrester v. White, 484 U. S. 219 (1988); Cleavinger v. Saxner, 474 U. S. 193 (1985); Dennis v. Sparks, 449 U. S. 24 (1980); Supreme Court of Va. v. Consumers Union of United States, Inc., 446 U. S. 719 (1980); Butz v. Economou, 438 U. S. 478 (1978); Stump v. Sparkman, 435 U. S. 349 (1978); Pierson v. Ray, 386 U. S. 547 (1967). Although unfairness and injustice to a litigant may result on occasion, “it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.” Bradley v. Fisher, 13 Wall. 335, 347 (1872). In this case, respondent Howard Waco, a Los Angeles County public defender, filed suit in the United States District Court for the Central District of California under Rev. Stat. § 1979, 42 U. S. C. § 1983, against petitioner, Raymond Míreles, a judge of the California Superior Court, and two police officers, for damages arising from an incident in November 1989 at the Superior Court building in Van Nuys, Cal. Waco alleged that after he failed to appear for the initial call of Judge Míreles’ morning calendar, the judge, “angered by the absence of attorneys from his courtroom,” ordered the police officer defendants “to forcibly and with excessive force seize and bring plaintiff into his courtroom.” App. to Pet. for Cert. B-3, ¶ 7(a). The officers allegedly “by means of unreasonable force and violence seize[d] plaintiff and remove[d] him backwards” from another courtroom where he was waiting to appear, cursed him, and called him “vulgar and offensive names,” then “without necessity slammed” him through the doors and swinging gates into Judge Míreles’ courtroom. Id., at B-4, ¶ 7(c). Judge Míreles, it was alleged, “knowingly and deliberately approved and ratified each of the aforedescribed acts” of the police officers. Ibid. Waco" } ]

[ { "docid": "4582731", "title": "", "text": "535 U.S. 302, 322, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002)))); cf. Ladd v. United States, 630 F.3d 1015, 1025 (Fed.Cir.2010) (“[P]hysical takings are compensable, even when temporary.” (citing Hendler v. United States, 952 F.2d 1364, 1376 (Fed.Cir.1991))). The parties do not dispute the material facts of this case. Indeed, the government expressly admits to many of the key elements of National Food’s allegations in its statement of uncontested facts, responses to plaintiffs interrogatories, and responses to plaintiffs request for admissions. See Def.’s Uncontested Facts; Pl.’s Mot. Ex. 1 (Def.’s Resps. to Pl.’s Req. for Admis.); Pl.’s Mot. Ex 2 (Def.’s Resps. to Pl.’s Interrogs.). The government concedes that it sent a right-of-entry request to the Parish via letter in January 2006, Pl.’s Mot. Ex. 1 (Def.’s Resps. to Pl.’s Req. for Admis.), at 4-5 of 23, ECF No. 63-3, which “proposed [plaintiffs land to be the subject of [a] Commandeering Order,” Def.’s Uncontested Facts at 3. This letter asked the Parish to authorize the Corps to enter the property for the purposes of acquiring clay. Pl.’s Mot. Ex. 1 (Def.’s Resps. to Pl.’s Req. for Admis.), at 5 of 23, ECF No. 63-3. The government does not dispute that the Parish executed the order and commandeered over 36 acres of National Food’s property. PL’s Mot. Ex. 2 (Def.’s Resps. to PL’s Interrogs.), at 16 of 23, ECF No. 63-3. It admits that the Corps “authorized its contractor [Shaw] to excavate and process clay from the portion of [plaintiffs property described in the Commandeering Order.” Def.’s Uncontested Facts at 3. Shaw used the clay from National Food’s property to repair levees in the Buras district. Id. at 3, 6. Lastly, the government concedes that it “intended ... to compensate [p]laintiff, in accordance with federal law and the terms of the Cooperation Agreement.” PL’s Ex. 1 (Def.’s Resps. to PL’s Req. for Admis.), at 4 of 23, ECF No. 63-3. Yet the government has failed to do so thus far. Given these agreed facts, it is apparent that the Corps effected a physical taking of National Food’s property. See, e.g., Def.’s" }, { "docid": "20589959", "title": "", "text": "erosion, loss of goodwill, damage to reputation, and loss of business opportunities.” Id. (citing Abbott Labs. v. Sandoz, Inc., 544 F.3d 1341, 1362 (Fed.Cir.2008); Sanofi-Synthelabo v. Apotex, Inc., 470 F.3d 1368, 1382-83 (Fed.Cir.2006)). Bankruptcy is an irreparable harm because, in addition to the obvious economic injury, loss of business renders a final judgment useless, depriving the mov-ant of effective and meaningful judicial review. Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). Here, Customs seeks to impose single transaction bond requirements on Plaintiffs entries of fresh garlic from the PRC equal to Plaintiffs total potential an-tidumping duty liability if calculated at the PRC-wide rate ($4.71/kg), see Information Notice, ECF No. 7-2 at Ex. 3, rather than the expected $0.35/kg cash' deposit rate otherwise applicable to Plaintiffs exporter/producer, QTF. See Twelfth NSR, 73 Fed. Reg. at 56,552 (setting the antidump-ing duty rate); CBP Cash Deposit Instructions, ECF No. 25-1, at A3 (setting cash deposit rate); Ex. 1 to PL’s Br. (July 3, 2014 letter from QTF to Customs), ECF No. 7-1 at 3 (requesting verification of $0.352/kg rate); Pl.’s Br., ECF No. 7, at 2 n. 3 (Plaintiff receiving oral confirmation of $0.352/kg rate from Customs). For the Plaintiff, this means more than $10 million in additional bonding (i.e., 129 containers at an average of $117,500 additional bonding per container). See Li Decl., ECF No. 7-2 at Ex. 5, at ¶ 10; Attach, to [PL’s] Resp. to Ct.’s Req., Oct. 2, 2012, ECF No. 34-1. Normally, an importer could obtain such single transaction bonds from a surety for a fraction of the bond value, see Mem. Supp. Def.’s Opp’n to Pis.’ Appl. for TRO & Mots, for Prelim. Inj., ECF Nos. 17 (pub. version) & 25 (conf. version) (“Def.’s Br.”) at 16; [Def.’s] Resp. to Ct.’s Req., Sept. 30, 2014, ECF No. 26, at ¶ 1. But Plaintiff does not present a normal case. Rather, obtaining a bond at this time, in this industry would require fall collateral for the millions of dollars at issue. Pl.’s Resp. to Ct.’s Req., Oct. 2, 2012, ECF" }, { "docid": "18055106", "title": "", "text": "to the CCDOC. She does not argue that she has a record of an impairment. Because ihe Court, finds thal genuine issues of material facts exist as to whether Ms. Bond suffers from an actual disability, the Court need not address her contention of being regarded as having such an impairment. .The term \"substantially limits” means that the individual is either unable to perform, or significantly restricted as to the condition, manner or duration under which she can perform a major life activity, as compared to an average person in the general population. 29 C.F.R. § 1630.2(j)(l)(ii). The Supreme Court instructs that \"[l]ooking at the Act as a whole, it is apparent that if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures — both positive and negative — must be taken into account when judging whether that person is 'substantially limited’ in a major life activity and thus 'disabled' under the Act.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 482, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). . In her Statement of Additional Facts to Defendant's Motion for Summary Judgment, Ms. Bond also indicates that she has been substantially limited in the major life activities of doing housework, dancing, and \"en-gag[ing] in activities that require physical exertion.” (Pl.’s Resp. ¶ 68.) Because these activities were not specifically included in Plaintiff's Complaint, nor substantively addressed in either party’s briefs, the Court will not determine whether such activities constitute “major life activities” under the ADA. . The record indicates that Dr. Evans prescribed Plaintiff one inhaler ón March 27, 1995 (Pl.’s Resp. Ex. 3, Evans Dep. at 19-26; Pl.’s Resp. ¶ 11), and added a second one on June 12, 1995. (Pl.'s Resp. Ex. 3, Evans Dep. at 28.) Ms. Bond began using the home ne-bulizer on May 9, 1996. (Pl.'s Resp. Ex. 3, Dr. Evans Dep. at 59-61.) By January 8, 1997, Ms. Bond was also using Proventil and Vanceril metered dose inhalers. (Pl.’s Resp. ¶ 11) On May 2, 1997, Dr. Evans prescribed Predisone and Biaxin." }, { "docid": "2927732", "title": "", "text": "on this basis. First, with respect to drawings created for this litigation, see supra Part III.A.l.a, Exhibits 15 and 16 to plaintiffs Reply are not dated, see generally Pl.’s Reply Exs. 15-16. However, both parties appear to identify the two exhibits as drawings created for this litigation, see Pl.’s Reply 6; Def.’s Sur-Reply 8 n.6; see also Pl.’s Reply 3-4 (citing Order of Dee. 16, 2011, Dkt. No. 26 (ordering defendant to produce CAD drawings of Robonaut 1 and Robonaut 2 “to plaintiff’s counsel on a rolling basis as they become available”)), that is, after the Complaint was filed on April 1, 2011, see generally Compl. Therefore, the court finds that Exhibits 15 and 16 to plaintiffs Reply are still within the five-year period and are not subject to disclosure on that basis. Cf. 51 U.S.C.A § 20131(b); Def.’s Resp. Ex. B (joint development agreement) 36. Each of the six series of CAD drawings created in response to plaintiffs production requests related to Robonaut 2 was also created within the last five years. See CAD Produc. Mot. 1 (describing series of such CAD drawings produced on November 13, 2012 after being created for this litigation and stating that additional CAD drawings responsive to the remaining five production requests related to Robonaut 2 would be created and produced by February 15, 2013). Therefore, they are also not subject to disclosure at this juncture on the basis of being more than five years old. Cf. 51 U.S.C.A. § 20131; Def.’s Resp. Ex. B (joint development agreement) 36. With respect to photographs and drawings produced in discovery, see supra Part III. A.l.b, Exhibits 18 and 20 to plaintiffs Reply are not dated, and defendant did not address when these documents were created in its Sur-Reply. Exhibit 19 is dated November 29, 2007, making it more than five years old. See Pl.’s Reply Ex. 19. Therefore, Exhibit 19, to the extent that it was “obtained or developed by the [NASA] Administrator in the performance of the Administrator’s functions,” is outside the five-year period during which confidential information can be protected from public disclosure pursuant" }, { "docid": "4582718", "title": "", "text": "Facts”) at 4, ECF No. 71; see also Pl.’s Reply Ex. 4, at 62 of 106, ECF No. 74-4. On January 17, 2006, the Corps asked the Parish to grant the Corps right of entry onto National Food’s property pursuant to the Cooperation Agreement. See Pl.’s Mot. Ex. 10 (Letter from Linda Labure, Chief, Real Estate Div., Corps, to Benny Rousselle, President, Plaquemines Parish), at 16 of 17, ECF No. 63-6. The Corps prepared a document for the Parish president to execute, entitled “Commandeering Property for Borrow Material; Stockpiling, and Access/Authorization for Entry for Construction, Borrow, Stockpiling and Access” (“Commandeering Order”). Id.; see also id. Ex. 9 (Commandeering Order), ECF No. 63-6; Def.’s Uneontested Facts at 2. The Parish president signed the Commandeering Order on January 26, 2006. Pl.’s Mot. Ex. 9 (Commandeering Order), at 14 of 17, ECF No. 63-6. This order commandeered approximately 77.2 acres of property to “be used for access; to obtain borrow material; and to stockpile or process material for construction.” Id. Ex. 9 (Commandeering Order), at 13 of 17, ECF No. 63-6. Included in this land was at least 36.2 acres of National Food’s property, identified severally as “Myrtle Grove Borrow Pit No. 2” or “Tract P602.” Compare Def.’s Resp. to Pl.’s Mot. (“Def.’s Opp’n”) at 5 n. 5, with Pl.’s Reply Ex. 4, at 20 of 106, ECF No. 74-4, Pl.’s Mot. Ex. 1 (Def.’s Resps. to Pl.’s Req. for Admis.), at 5-6 of 23, ECF No. 63-3, and Def.’s Uneontested Facts at 4. Although signed in late January 2006, the Commandeering Order was not implemented immediately. The Corps’ contractor, Shaw Environmental and Infrastructure, Inc. (“Shaw”), entered plaintiffs property about four months later, on or slightly before June 1, 2006. Pl.’s Reply Ex. 12, at 7 of 8, ECF No. 74-12. Shaw began excavating clay on June 13, 2006, see id. Ex. 12, at 2-3 of 8, ECF No. 74-12, and continued for a period of approximately nine months, see id. Ex. 4, at 10-11 of 106, ECF No. 74-4. Shaw transported the clay to the Buras Levee (approximately 23 miles from plaintiffs" }, { "docid": "18055063", "title": "", "text": "the City of Chicago Municipal Code 192-20. (Pl.’s Resp. Ex. 14.) After waiting another year for the CCDOC to comply with its own smoking policy, Ms. Bond filed a second complaint with IDOL on March 9, 1995, explaining that the CCDOC’s smoking policy was still not being enforced, (Pl.’s Resp. Ex. 8.) On March 27, 1995, Ms. Bond was diagnosed as having “mild persistent” asthma. (Pl.’s Resp. ¶ 11.) Plaintiffs treating physician, Dr. Thelma Evans, initially prescribed Ms. Bond one albuterol inhaler for treatment (Def.’s SUF ¶ 12), and later, on July 13, 1995, directed her to avoid cigarette smoke, since it is one of several irritants known to aggravate a person’s asthma. (PL’s Resp. ¶ 50; Pl.’s Resp. Ex. 3, Dr. Evans Dep. at 36.) After learning that Ms. Bond was exposed to environmental tobacco smoke everyday at the CCDOC, Dr. Evans wrote a “To Whom It May Concern” letter to Ms. Bond’s employer on January 18, 1996, explaining that Plaintiffs “asthma is aggravated by constant exposure to tobacco smoke in her work environment.” (Def.’s SUF Ex. 23.) Apparently, in response to Ms. Bond’s complaints, Division V Superintendent Dennis Drahos issued a “new” smoking policy on July 1, 1996, which established procedures for both the smoking and nonsmoking areas in Division V. (Def.’s SUF ¶ 33.) John Maul, Assistant Executive Director at the CCDOC, explained that supervisors could impose progressive disciplinary sanctions upon employees violating the smoking policy, commencing with counseling, continuing through suspension, and ending in termination for chronic offenders. (Def.’s SUF ¶ 34.) Mr. Maul further stated that, since General Order 1.16’s inception, he has issued verbal warnings to approximately one dozen employees, but has never given written reprimands or issued counseling forms to any employees. (Pl.’s Resp. ¶ 34.) Despite this “new” smoking policy, some individuals continued to smoke where Ms. Bond worked. On February 28, 1997, the University of Illinois at Chicago conducted an evaluation of the indoor air quality rates at the CCDOC. (Pl.’s Resp. Ex. 5.) The Cermak Health Clinic at the CCDOC requested this evaluation because “there had been concerns and complaints" }, { "docid": "20589960", "title": "", "text": "No. 7-1 at 3 (requesting verification of $0.352/kg rate); Pl.’s Br., ECF No. 7, at 2 n. 3 (Plaintiff receiving oral confirmation of $0.352/kg rate from Customs). For the Plaintiff, this means more than $10 million in additional bonding (i.e., 129 containers at an average of $117,500 additional bonding per container). See Li Decl., ECF No. 7-2 at Ex. 5, at ¶ 10; Attach, to [PL’s] Resp. to Ct.’s Req., Oct. 2, 2012, ECF No. 34-1. Normally, an importer could obtain such single transaction bonds from a surety for a fraction of the bond value, see Mem. Supp. Def.’s Opp’n to Pis.’ Appl. for TRO & Mots, for Prelim. Inj., ECF Nos. 17 (pub. version) & 25 (conf. version) (“Def.’s Br.”) at 16; [Def.’s] Resp. to Ct.’s Req., Sept. 30, 2014, ECF No. 26, at ¶ 1. But Plaintiff does not present a normal case. Rather, obtaining a bond at this time, in this industry would require fall collateral for the millions of dollars at issue. Pl.’s Resp. to Ct.’s Req., Oct. 2, 2012, ECF No. 30; see also Conf. Tr. of Hr’g Held on Oct. 1, 2014 (“Tr. TRO Hr’g”)(test. Of Mr. Shu-zhang “Steven” Li), ECF No. 40 (“Li Test.”), at 8:20-9:8, 17:21-18:17. Plaintiff represents that he cannot provide this collateral any more than he can post the full amount as a cash deposit. Li Test., ECF No. 40, at 15:1^4, 17:8-11; Tr. TRO Hr’g (Pl.’s Ex. 4), ECF No. 40 (bank statements). While he has paid the additional bonding for two entries himself, see Attach. to [Pl.’s] Resp. to Ct.’s Req., Oct. 2, 2012, ECF No. 34-1 at 1 (listing two entries as released with payment of full collateral ($116,572.50)); Tr. TRO Hr’g (Pl.’s Exs. 1 & 2), ECF No. 40 (providing Customs bonds and collection receipts noting that cash was provided in lieu of bond for two entries), the vast majority of the garlic has remained in limbo, accruing demur-rage charges and spoiling. Li Decl., ECF No. 7-2 at Ex. 5, at ¶ 11. Plaintiff also suffers loss of goodwill and damage to his reputation from his" }, { "docid": "18055095", "title": "", "text": "thus creating issues of material fact for a factfinder to resolve. First, Ms. Bond argues that her transfer to Division VIII, in 1993, was not to a smoke-free environment; rather, according to Plaintiff, Cermak Hospital is the only smoke-free area within Division VIII, and she was not placed in that area. (Pl.’s Resp. ¶ 88.) Additionally, Ms. Bond indicates that there were approximately twenty openings for correctional officers, such as herself, in this smoke-free area of Division VIII (Cer-mak Hospital) at all times from 1995 through mid-1998, yet Defendant failed to place her in one of these vacancies. (PL’s Resp. ¶¶ 101, 104.) Further, Plaintiff contends that her transfer to Division VIII, in 1993, was not made as an accommodation for her request, since she was one of four officers administratively transferred from Division V to Division VIII, and as explained supra, her transfer was not even to a smoke-free environment. (Def.’s SUF Ex. 27; Pl.’s Resp. ¶ 88.) Finally, Plaintiff argues that General Order 1.16 and the 1996 “Smoking Policy” were not truly accommodations for her asthma, since these policies were never enforced. (Pl.’s Resp. Exs. 10, 14; Pl.’s Resp. Ex. 12, Collier Dep. at 32.) Ms. Bond supports her assertion with the results of the University of Illinois at Chicago indoor air quality and ventilation study conducted on February 28, 1997, which concluded, inter alia, “[s]moking is currently permitted in the facility for the inmates, officers, and other staff.” (PL’s Resp. Ex. 5 at p. 3.) Ms. Bond also argues that Defendant failed to engage in an interactive process with her, thus providing further evidence that Defendant did not reasonably accommodate her asthma. “An employee has the initial duty to inform the employer of a disability before ADA liability may be triggered for failure to provide accommodations.” Beck v. Univ. of Wis. Board of Regents, 75 F.3d 1130, 1134 (7th Cir.1996) (emphasis added). Once the employee provides this information, the employer has a responsibility to start the interactive process. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir.1996); see also 29 C.F.R. § 1630.2(o)(3) (“To" }, { "docid": "9891263", "title": "", "text": "extended PIP coverage in compliance with section 10 — 4— 710(2)(a)(II). (Def.’s Br., Statement of Undisputed Material Facts, ¶ 15, Ex. A-4 [6/21/04 Letter to the Carey Law Firm]; admitted by PL’s Br., Resp. to Statement of Undisputed Material Facts, Statement of Undisputed Material Facts ¶ 3, Ex. B [6/21/04 Letter to the Carey Law Firm].) The “trial court has the discretion to ascertain the date of reformation because reformation is an equitable remedy.” Clark II, 292 F.Supp.2d at 1255 (citations omitted). I find that the appropriate date of reformation is the date that Defendant became aware that it was not in compliance with section 10 — 4— 710(2)(a)(II) as to Plaintiffs policy. Defendant notes that it amended its PIP Endorsement with an effective date of January 1, 2001, and the amended endorsement contained an extended PIP coverage option fully compliant with section 10 — 4—710(2)(a)(II). (Def.’s Br. at 9, Statement of Undisputed Material Facts ¶ 14.) Therefore, I deem the policy reformed as of January 1, 2001. 2. $200,000 Aggregate Limit Plaintiff argues that her policy should be reformed to reflect enhanced PIP coverage in compliance with section 10 — 4— 710(2)(a)(II) with unlimited coverage. (Compl. ¶ 33; PL’s Resp. at 11 — 12, 19.) Plaintiff maintains that the automatic incorporation of terms by reformation only includes those terms agreed to by the par ties and any missing statutory coverages, and therefore does not include a $200,000 aggregate limit on coverage. (Pl.’s Resp. at 12.) Plaintiffs arguments are misplaced. At the time Defendant issued Plaintiffs policy, Defendant attached a PIP Endorsement outlining a $200,000 aggregate limit to Plaintiffs policy. (See Def.’s Br., Ex. A-2 [PIP Endorsement].) Plaintiff does not deny receiving the PIP endorsement, and in fact references it in her own arguments. (Pl.’s Resp. at 13— 14; PL’s Br. at 6, Resp. to Statement of Undisputed Material Facts, Statement of Undisputed Material Facts ¶¶ 6, 7.) It is a general contract principle and established Colorado law that “ ‘[a]n insurance policy and an endorsement attached to it must be considered as a single instrument, and they should be" }, { "docid": "7558867", "title": "", "text": "severe safety violations.” Id. The general manager of LB & B agreed with the results of these inspections, admitting that a number of needed repairs and severe safety defects were uncovered. Id.; see also Pl.’s Ex. 9 (Banis depo. tr. pp. 58-59); Def.’s Resp. Pl.’s Proposed Findings 1150. Joint inspections continued, until 236 vehicles had been inspected through November 26, 1996. See Pl.’s Ex. 19; Def.’s Resp. PL’s Proposed Findings H 86. A brief explanation of the identities and roles of some of the Air Force employees involved in this case would aid the appreciation of some of the undisputed facts. Major Karzon was the FAC. Def.’s Resp. PL’s Proposed Findings U 32. Under the Contract, this position is described as the head “of any functional area where contract services manpower is used for some or all of the workload” and as “the government person with overall responsibility for providing the services.” PWS H 2.1.13, PL’s Ex. 5 at 14. As noted above, the FAC was designated in the Contract as the Air Force employee responsible for participating in the joint “vehicle assessment” at the termination of LB & B’s contract. See PWS H 5.5.2, PL’s Ex. 5 at 43; PL’s Ex. 12 at 45 (LB & B Contract PWS H 5.5.2). The Contracting Officer for the Contract, Mr. Larry Ozburn, took leave of this position to work on the bid protest challenge to the award, and from roughly October 23, 1996 through December 24, 1996, these responsibilities were assumed by the Contracting Officer for the expiring LB & B contract, Master Sergeant Banis. See Def.’s Resp. PL’s Proposed Findings 111178, 82-83; PL’s Ex. 6 (Ozburn depo. tr. p. 63). Ms. Bonnie Pavlik headed the Air Force unit administering the Contract. PL’s Ex. 6 (Oz-burn depo. tr. p. 25). Memoranda issued by Karzon and Pavlik demonstrate that at the time the inspections were being performed, the responsible Air Force personnel believed that the November inspections constituted the “assessment” required by the LB & B contract, and that the needed repairs revealed by these inspections were part of the “backlog” that" }, { "docid": "4582719", "title": "", "text": "ECF No. 63-6. Included in this land was at least 36.2 acres of National Food’s property, identified severally as “Myrtle Grove Borrow Pit No. 2” or “Tract P602.” Compare Def.’s Resp. to Pl.’s Mot. (“Def.’s Opp’n”) at 5 n. 5, with Pl.’s Reply Ex. 4, at 20 of 106, ECF No. 74-4, Pl.’s Mot. Ex. 1 (Def.’s Resps. to Pl.’s Req. for Admis.), at 5-6 of 23, ECF No. 63-3, and Def.’s Uneontested Facts at 4. Although signed in late January 2006, the Commandeering Order was not implemented immediately. The Corps’ contractor, Shaw Environmental and Infrastructure, Inc. (“Shaw”), entered plaintiffs property about four months later, on or slightly before June 1, 2006. Pl.’s Reply Ex. 12, at 7 of 8, ECF No. 74-12. Shaw began excavating clay on June 13, 2006, see id. Ex. 12, at 2-3 of 8, ECF No. 74-12, and continued for a period of approximately nine months, see id. Ex. 4, at 10-11 of 106, ECF No. 74-4. Shaw transported the clay to the Buras Levee (approximately 23 miles from plaintiffs property, see Pl.’s Reply at 27), where it was compacted and em-placed by Shaw per its contract with the Corps. Pl.’s Mot. Ex. 5, at 11 of 19, ECF No. 63-4. Shaw removed its equipment and vacated plaintiffs property after July 1, 2007. See Pl.’s Reply Ex. 12, at 4 of 8. The Corps’ use of National Food’s property may have extended into September 2007. See Pl.’s Mot. Ex. 1 (Def.’s Resps. to Pl.’s Req. for Admis.), at 7 of 23, ECF No. 63-3. During this same time period, the Corps also pursued contractor-furnished and supply-contract sources of clay. Pl.’s Mot. Ex. 11, at 23, 41 of 92, ECF No. 63-7. In early 2006, the agency issued solicitations for several Indefinite Delivery Indefinite Quantity contracts for clay. Pl.’s Mot. Ex. 2 (Def.’s Resps. to Pl.’s Interrogs.), at 11 of 23, ECF No. 63-3. Between January 4, 2006, and June 30, 2006, it awarded three contracts for the delivery of clay to sites in Plaquemines Parish. Id. Ex. 2, (Def.’s Resps. to Pl.’s Interrogs.), at 12" }, { "docid": "18055107", "title": "", "text": "S.Ct. 2139, 144 L.Ed.2d 450 (1999). . In her Statement of Additional Facts to Defendant's Motion for Summary Judgment, Ms. Bond also indicates that she has been substantially limited in the major life activities of doing housework, dancing, and \"en-gag[ing] in activities that require physical exertion.” (Pl.’s Resp. ¶ 68.) Because these activities were not specifically included in Plaintiff's Complaint, nor substantively addressed in either party’s briefs, the Court will not determine whether such activities constitute “major life activities” under the ADA. . The record indicates that Dr. Evans prescribed Plaintiff one inhaler ón March 27, 1995 (Pl.’s Resp. Ex. 3, Evans Dep. at 19-26; Pl.’s Resp. ¶ 11), and added a second one on June 12, 1995. (Pl.'s Resp. Ex. 3, Evans Dep. at 28.) Ms. Bond began using the home ne-bulizer on May 9, 1996. (Pl.'s Resp. Ex. 3, Dr. Evans Dep. at 59-61.) By January 8, 1997, Ms. Bond was also using Proventil and Vanceril metered dose inhalers. (Pl.’s Resp. ¶ 11) On May 2, 1997, Dr. Evans prescribed Predisone and Biaxin. (Id.) Therefore, it is clear that Dr. Evans prescribed progressively more treatment for Ms. Bond while she was an employee at the CCDOC. . See, supra, n. 7. . These activities include, for example, dancing, jumping rope, and \"church activities,\" which include volleyball and badminton. (Pl.'s Resp. Ex.1, Bond-Dep. at 99.) This is particularly important because the court in Warren v. Jostens, Inc., No. 99-C8302, 2001 WL 290621, at * 2 (N.D.Ill. March 19, 2001), determined that the plaintiff was not substantially limited in the major life activity of breathing, in part, because she participated in aerobics outside of work — an activity that Ms. Bond presumably could not do. The Warren court also found that the plaintiff’s asthma was adequately \"controlled”. Id. Here, how- ■ ever, as explained supra, there are material facts in. dispute as to whether Ms. Bond’s asthma was adequately controlled while she was an employee at the CCDOC. .As discussed supra, when making its decision as to whether Plaintiff's asthma constitutes a disability under the Act, the factfinder must consider" }, { "docid": "11835519", "title": "", "text": "of these underlying issues. Rather, plaintiffs current claim relates to problems with his right knee. In November 2001 plaintiff tore the meniscus (cartilage) of his right knee. The tear was repaired by outpatient arthroscopic surgery on November 16, 2001. See Def.’s Mot., Ex. 12. Plaintiff retore his meniscus and had a second surgery in March 2002. See id., Ex. 13; Pl.’s Resp., Exs. C-D. The surgeries were performed by Dr. Joseph Walkiewicz. On April 16, 2003, plaintiff met with Dr. Walkiewicz, complaining of swelling and pain in his leg. Dr. Walkiewicz scheduled plaintiff for high tibial valgus osteotomy surgery on May 27, 2003. Plaintiff request FMLA leave to begin on May 20, 2003, and to last for approximately six to eight weeks. Dr. Walkiewicz’s certification anticipated a return to work date of August 2, 2003. Plaintiffs request for leave was granted. See Fritz Dep., at 39-40; Def.’s Mot., Exs. 10, 14; Pl.’s Resp., Exs. E, F. Plaintiff returned to work on August 11, 2003, with a restriction on lifting over 50 pounds and use of the right leg. PSI honored those restrictions. See Fritz Dep., at 47-49; Def.’s Mot., Ex. 16; Pl.’s Resp., Ex. E. Plaintiff took an additional two weeks of leave in September 2003 due to complications from the surgery. See Fritz Dep., at 47-48. Throughout his employment with PSI, plaintiff had attendance issues which resulted in several warnings. See Def.’s Mot., Exs. 18-24. Plaintiffs complaint here involves his absences on May 2-3, 2005, and his subsequent termination. In April, plaintiff visited two new orthopaedic surgeons, Dr. Joseph Finch and Dr. Elie Khoury, complaining of pain in both knees. See Pl.’s Resp., Ex. G. On April 25, 2005, Dr. Khoury determined that plaintiff was temporarily disabled from work from April 18-25. See id. Plaintiff used eight vacation days for this period. See Fritz Dep., at 72; Def.’s Mot., Ex. 25; Pl.’s Resp., Ex. H. Plaintiff admitted in his deposition that he did not inform PSI that this time off was related to any health condition and that he did not seek FMLA leave at this time. See Fritz" }, { "docid": "7558866", "title": "", "text": "November 13 to 16, an additional 65 vehicles were randomly inspected. These inspections were performed jointly by personnel from Fleetpro, LB & B, and the Air Force. Pl.’s Ex. 10 at 18 (Def.’s Resp. to Req. Adm. K18). These inspections also revealed a large number of repairs that were needed, including repairs of safety defects. Major Mark Karzon, the Air Force’s Functional Area Chief (“FAC”) responsible for maintenance at the AFB complex, approved Fleet-pro’s request that work orders be entered into OLVIMS to reflect the discrepancies identified in these inspections. See Pl.’s Ex. 14 (Minutes of November 29, 1996 meeting taken by Contracting Officer Paul E. Banis Jr.). The outgoing contractor, LB & B, asked that the 71 vehicles be reinspected in the presence of officials from the company, and the poor condition of this sample of the fleet was confirmed. Id. The Contracting Officer for the Air Force noted that “[i]t was determined that a good portion of the vehicles inspected had recently been in the shop for maintenance and returned to service with severe safety violations.” Id. The general manager of LB & B agreed with the results of these inspections, admitting that a number of needed repairs and severe safety defects were uncovered. Id.; see also Pl.’s Ex. 9 (Banis depo. tr. pp. 58-59); Def.’s Resp. Pl.’s Proposed Findings 1150. Joint inspections continued, until 236 vehicles had been inspected through November 26, 1996. See Pl.’s Ex. 19; Def.’s Resp. PL’s Proposed Findings H 86. A brief explanation of the identities and roles of some of the Air Force employees involved in this case would aid the appreciation of some of the undisputed facts. Major Karzon was the FAC. Def.’s Resp. PL’s Proposed Findings U 32. Under the Contract, this position is described as the head “of any functional area where contract services manpower is used for some or all of the workload” and as “the government person with overall responsibility for providing the services.” PWS H 2.1.13, PL’s Ex. 5 at 14. As noted above, the FAC was designated in the Contract as the Air Force employee" }, { "docid": "11314848", "title": "", "text": "to Dismiss (plaintiff’s Response or Pl.'s Resp.) and Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion for Summaiy Judgment (plaintiff's Reply or Pl.’s Reply), the court will limit its discussion of jurisdiction to these three statutes. See Pl.'s Resp. 2; Pl.’s Reply 1. . Where applicable, the court has changed quotations from plaintiff’s briefings to conform to conventional capitalization, spelling and grammar. Plaintiff also requests that this court \"rescind the [plea] agreement ... release plaintiff,\" and award \"reasonable monetary compensation” for plaintiff's time spent in prison and punitive damages. Compl. 114, 17. In his Response, plaintiff appears to renounce these requests, noting, \"This action is a breach of contract action requesting specific performance of the release from forfeiture of assets which were seized ... nowhere within this complaint does plaintiff request release of anything with the exception of his seized property.\" Pl.'s Resp. 5. . According to plaintiff, the seized property includes United States currency, jewelry, legal and business documents, a vehicle and a computer. Compl. Exhibit (Ex.) A (Asset Itemization). . Plaintiff is also known as Larry Lam and Phu Phan and is referred to as Larry Lam in plaintiff's Facts Ex. B. See Pl.’s Facts Ex. D (Judgment Document). . Plaintiff also alleges that the United States Attorney's Office (USAO) breached the contract by failing to obtain the prison term agreed upon in the plea agreement and by failing to seek \"a lighter sentence through appellate review.” Compl. ¶11 10, 12, 15. Because plaintiff does not seek relief related to these allegations, this court will not address them. See supra note 3. . That plaintiff and defendant entered a plea agreement is undisputed. Compl. Ex. B; Def.’s Resp. to Pl.’s Facts 2 (\"[D]efendant agrees that it entered a plea agreement with Mr. Phang....”). Because defendant does not contest the authenticity of the plea agreement attached to plaintiff’s complaint (and cites to it without reservation), the court views the content of the plea agreement to be undisputed. . See RCFC 9 Rules Committee Notes (2008) (\"former subdivision (h) ... comprised of paragraphs (1) through (7), has been reorganized as" }, { "docid": "6631710", "title": "", "text": "result of the deliberate and systematic destruction of the Armenian population by the Ottoman Turkish government between 1915 and 1923.” Pl.’s Opp’n at 1. Plaintiff claims that the Armenian genocide \"is the single most important event that defines the identity of the Armenian people, including Armenian-Americans.” Id. . Although Waters Sr. and the Cafesjian Defendants filed separate briefs and separate responses to Plaintiff’s statement of undisputed material facts, their objections and responses are, for the most part, substantively identical. Therefore, the Court shall use \"Defs.’ Resp. Stmt.” to incorporate all Defendants’ responses, and the Court shall use \"Waters Sr.’s Resp. Stmt.” or \"Cafesjian Defs.’ Resp. Stmt.” to refer to each party’s separate responses, where appropriate. . Nearly all of the facts surrounding Cafesjian’s subsequent involvement with the Assembly are disputed by the parties. . Although Ms. Mathevosian had pledged $3.5 million for the Bank Building, she was unable to tender the money at the time of the purchase. To effectuate the purchase, Cafesjian/CFF gave the Assembly a $4 million interest-free bridge loan. When Ms. Mathevosian came through with her pledge, the Assembly repaid Cafesjian $3.5 million and issued a promissory note for the remaining $500,000. See Waters Sr.'s Stmt. ¶ 6; Pl.’s Resp. Stmt. ¶ 6; Cafesjian Defs.’ Br., Ex. 71. . Plaintiff contends that Cafesjian initially intended to use these sites for his own contemporary art museum. See PL's Stmt. ¶ 9. Cafesjian conceded at deposition that he briefly considered creating an art museum as part of the museum project in order to attract more people, but he testified that the purpose of acquiring the properties was to give the museum a larger footprint. See Pl.’s Br., Ex. 5 (G. Cafesjian Dep. Tr.) at 148-52. . There is a dispute in the record as to the origin of the idea for an independent entity came from. Defendants argue that it was Hirair Hovnanian, Chairman of the Assembly’s Board of Trustees, rather than Cafesjian, who proposed that the museum be run by an independent entity. See Waters Sr.’s Resp. Stmt. ¶ 10; Cafesjian Defs.’ Resp. Stmt. ¶ 10. Regardless of" }, { "docid": "20240171", "title": "", "text": "a civil engineer in 1990. Id. During the period relevant to the Complaint, Olatunji worked as a Supervisory Civil Engineer and Project Manager in the DDOT Infrastructure Project Management Administration. See Def.’s Statement of Undisputed Material Facts ¶ 2 (“Def.’s SMF”), Mar. 15, 2012, ECF No. 12; Pl.’s Resp. to Def.’s SMF ¶ 2 (“Pl.’s SMF Resp.”), Apr. 16, 2012, ECF No. 13-2. In that role, Olatunji monitored the day to day operations of DDOT construction projects. See Def.’s SMF ¶ 3; Pl.’s SMF Resp. ¶ 3. Olatunji’s immediate supervisor was Ali Shakeri, a male of Iranian descent. Compl. ¶ 10; Ex. 3 to Def.’s Mot. Summ. J. In February 2008, Olatunji filed a Charge of Discrimination with the D.C. Office of Human Rights and the EEOC, in which he alleged discrimination, retaliation, and a hostile work environment. Def’s SMF ¶ 4; Pl.’s SMF Resp. ¶ 4; Ex. 4 to Def.’s Mot. Summ. J. In that 2008 Charge, Olatunji alleged that Shakeri treated him differently than a similarly-situated colleague, an Iranian female. Ex. 4 to Def.’s Mot. Summ. J. He also claims he received poor performance evaluations as retaliation for filing a January 2007 internal EEO complaint, and was subjected to threats and demeaning comments that constituted a hostile work environment. Id. In March 2008, Olatunji and DDOT entered into a settlement agreement which ended the then-pending 2008 Charge. Def.’s SMF ¶ 5; PL’s SMF Resp. ¶ 5; Ex. 5 to Def.’s Mot. Summ. J. In February 2009, Olatunji filed a second Charge of Discrimination with the EEOC. Def.’s SMF ¶¶6-7; Pl.’s SMF Resp. ¶¶ 6-7; Ex. 6 to Def.’s Mot. Summ. J. In this Charge, Olatunji alleged he suffered verbal abuse, reduction of job responsibilities, and denial of work assistance as a consequence of racial discrimination and retaliation. Ex. 6 to Def.’s Mot. Summ. J. The 2009 Charge also alleged that DDOT unjustly demoted Olatunji from a Supervisory Civil Engineer to a Civil Engineer as retaliation for the March 2008 settlement agreement. Id. On June 28, 2010, the EEOC issued a right-to-sue letter, allowing Olatunji to bring suit in" }, { "docid": "16577992", "title": "", "text": "of retaliation. Such a claim will support at least documentary discovery. Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983). Plaintiff does not offer any details in support of his allegation of retaliation, but rather makes broad and sweeping claims. Accordingly, the Court concludes that plaintiffs claim of retaliation must be dismissed with prejudice. The Article 78 Proceeding Plaintiff alleges that defendant Judge Canfield violated his civil rights in an Article 78 proceeding (currently on appeal). However, it is well settled that judges are absolutely immune from suit for any actions taken within the scope of their judicial responsibilities. See, e.g., Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). Although unfairness and injustice to a litigant may result on occasion, “it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.” Id., at 10, 112 S.Ct. at 287, quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646 (1871). The protection of immunity is not pierced by allegations that the judge acted in bad faith or with malice, Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), even though “unfairness and injustice to a litigant may result on occasion,” Mireles, 502 U.S. at 9, 112 S.Ct. 286. The United States Supreme Court has expressly applied the doctrine of judicial immunity to actions brought pursuant to 42 U.S.C. § 1983. See Pierson, 386 U.S. at 547, 87 S.Ct. 1213. The Supreme Court has developed a two-part test for determining whether a judge is entitled to absolute immunity. See Stump v. Sparkman, 435 U.S. 349, 360, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). First, “[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all" }, { "docid": "11835520", "title": "", "text": "the right leg. PSI honored those restrictions. See Fritz Dep., at 47-49; Def.’s Mot., Ex. 16; Pl.’s Resp., Ex. E. Plaintiff took an additional two weeks of leave in September 2003 due to complications from the surgery. See Fritz Dep., at 47-48. Throughout his employment with PSI, plaintiff had attendance issues which resulted in several warnings. See Def.’s Mot., Exs. 18-24. Plaintiffs complaint here involves his absences on May 2-3, 2005, and his subsequent termination. In April, plaintiff visited two new orthopaedic surgeons, Dr. Joseph Finch and Dr. Elie Khoury, complaining of pain in both knees. See Pl.’s Resp., Ex. G. On April 25, 2005, Dr. Khoury determined that plaintiff was temporarily disabled from work from April 18-25. See id. Plaintiff used eight vacation days for this period. See Fritz Dep., at 72; Def.’s Mot., Ex. 25; Pl.’s Resp., Ex. H. Plaintiff admitted in his deposition that he did not inform PSI that this time off was related to any health condition and that he did not seek FMLA leave at this time. See Fritz Dep., at 72-73. Plaintiff does contend,. however, that in April 2005 he requested medical leave for an impending surgery scheduled for May 24, 2005. See id. at 75-76, 88, 90; Pl.’s Resp., Ex. G. By the end of April, plaintiff had exhausted all of his vacation and personal days for 2005. See Def.’s Mot., Ex. 25. Plaintiff did not report for work on May 2 and May 3, 2005. See Fritz Dep., at 80. On May 2, plaintiff spoke with his supervisor, Bernard Vaughn, and told Vaughn that his knee was swollen and he was in severe pain, and that he had scheduled an appointment with his orthopaedic surgeon. See Fritz Dep., at 80; Pl.’s Resp., Ex. F, response to request for admission No. 11; id., Ex. I, Dep. Tr. of Bernard Vaughn, at 30-32 [hereinafter “Vaughn Dep.”]. Plaintiff contends that he again called Vaughn to report his absence on May 3, but Vaughn disputes this. See Fritz Dep., at 81; Vaughn Dep., at 32. On May 3, plaintiff was seen by Dr. Finch, who" }, { "docid": "11835521", "title": "", "text": "Dep., at 72-73. Plaintiff does contend,. however, that in April 2005 he requested medical leave for an impending surgery scheduled for May 24, 2005. See id. at 75-76, 88, 90; Pl.’s Resp., Ex. G. By the end of April, plaintiff had exhausted all of his vacation and personal days for 2005. See Def.’s Mot., Ex. 25. Plaintiff did not report for work on May 2 and May 3, 2005. See Fritz Dep., at 80. On May 2, plaintiff spoke with his supervisor, Bernard Vaughn, and told Vaughn that his knee was swollen and he was in severe pain, and that he had scheduled an appointment with his orthopaedic surgeon. See Fritz Dep., at 80; Pl.’s Resp., Ex. F, response to request for admission No. 11; id., Ex. I, Dep. Tr. of Bernard Vaughn, at 30-32 [hereinafter “Vaughn Dep.”]. Plaintiff contends that he again called Vaughn to report his absence on May 3, but Vaughn disputes this. See Fritz Dep., at 81; Vaughn Dep., at 32. On May 3, plaintiff was seen by Dr. Finch, who provided a note excusing plaintiff from work on May 2-3. See Pl.’s Resp., Ex. N. Plaintiff reported for work on May 4, 2005. At that time, Vaughn escorted plaintiff to the office of Jason Ratcliffe, who told plaintiff that his employment was being terminated due to his unexcused absences on May 2-3. See Fritz Dep., at 87; Vaughn Dep., at 33; PL’s Resp., Ex. O. At this meeting, plaintiff provided Vaughn and Ratcliffe with a copy of Dr. Finch’s disability note. See Fritz Dep., at 82; Vaughn Dep., at 34, 73; Pl.’s Resp., Ex. K, Dep. Tr. of Jason Ratcliffe, at 20-21 [hereinafter “Ratcliffe Dep.”]. This note was passed along to Jeffrey Tomschin, PSI’s Director of Human Resources. See Ratcliffe Dep., at 22-23. Tomschin testified in his deposition that, if plaintiff had in fact presented a request for FMLA leave with an appropriate doctor’s certification, the leave likely would have been granted. See Pl.’s Resp., Ex. M, Dep. Tr. of Jeffrey Tomschin, at 25-26. This matter is currently before the Court on the parties cross-motions" } ]

[ { "docid": "6938006", "title": "", "text": "award of attorneys’ fees to the landlords’ counsel without regard to the terms of the lease. In re Westworld Community Healthcare, Inc., 95 B.R. 730 (Bankr.C.D.Cal.1989). The respective records in all of the other cases we found considering attorney fees under § 365(b)(1) included lease provisions allowing attorneys’ fees in cir- eumstances established to be present, and the courts limited recovery to the terms of the lease provisions. See In re Diamond Head Emporium, Inc., 69 B.R. 487 (Bankr.D.Haw.1987); In re Westview 74th Street Drug Corp., 59 B.R. 747 (Bankr.S.D.N.Y.1986); In re Ribs of Greenwich Village, 57 B.R. 319 (Bankr.S.D.N.Y.1986); In re Foreign Crating, Inc., 55 B.R. 53 (Bankr.E.D.N.Y.1985); In re J.W. Mays, Inc., 30 B.R. 769 (Bankr.S.D.N.Y.1983). While Foreign Crating seems to suggest that § 365(b)(1)(B) alone requires attorney fees to be reimbursed, the holding actually was “pursuant to a lease provision that provides for attorney’s fees.” 55 B.R. at 54. The results in these latter cases are in keeping with the “American rule” regarding a litigant’s duty to pay even a successful opponent’s attorneys’ fees: each party bears its own costs of litigation, absent a specific contractual or statutory provision to the contrary. See United Nesco, supra, 68 B.R. at 974. Without evidence of a particular lease provision reciting precisely in what circumstances a landlord’s attorneys’ fees are recoverable, it is impossible to ascertain whether a circumstance justifying collection of such fees is in fact present or whether such a clause is unenforceable as an adhesion contract. See Garnett, supra, 99 B.R. at 296-97; and United Nesco, 68 B.R. at 973-74. We join those courts that hold that § 365(b)(1)(B) does not create a statutory right to recover attorney fees, and the record before us (consisting entirely of the Stipulation, per our Order of June 7, 1989) does not include any provisions in the leases justifying such charges. Therefore, we are unable to require the Trustee to pay the attorneys’ fees of the Landlords as a condition of assuming the lease. Even assuming arguendo that such provisions do exist, but were omitted from the record on the assumption" } ]

[ { "docid": "12616611", "title": "", "text": "of a Chapter 11 reorganization, because rejection can release the debtor’s estate from burdensome obligations that can impede a successful reorganization.” NLRB v. Bildisco & Bildisco, 465 U.S. 513, 528, 104 S.Ct. 1188, 79 L.Ed.2d 482 (1984). Likewise, the power to assume and/or assign the lease gives the trustee significant flexibility in managing the estate. A leasehold interest often proves to be the most valuable asset in a small business bankruptcy. When the debtor assumes its unexpired lease, however, it assumes it cum onere — the debtor must accept obligations of the executory contract along with the benefits. See Adventure Resources, Inc. v. Holland, 137 F.3d 786, 798 (4th Cir.), cert. denied, — U.S. -, 119 S.Ct. 404, 142 L.Ed.2d 328 (1998). Because the Bankruptcy Code also recognizes the interest of the landlord in realizing the benefit of the bargain struck with the tenant, albeit under brighter financial circumstances, in order to assume the lease, the trustee must cure any remaining defaults under the contract or lease. See id.; 11 U.S.C.A. § 365(b)(1)(A) (“If there has been a default ... the trustee may not assume such contract or lease unless ... the trustee ... cures, or provides adequate assurance that the trustee will promptly cure, such default.”). Further, prior to assumption of the lease, the trustee must “compensate[ ], or provide[] adequate assurance that the trustee will promptly compensate, a party other than the debtor to such contract or lease, for any actual pecuniary loss to such party resulting from such default.” 11 U.S.C.A. § 365(b)(1)(B) (emphasis added). Attorneys’ fees incurred in attempting to collect sums due from debtors following default may be recovered as pecuniary loss under § 365(b)(1)(B) if such monies were expended as the result of a default under the contract or lease between the parties and are recoverable under the contract and applicable state law. See, e.g., In re F & N Acquisition Corp., 152 B.R. 304, 308 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991). Entitlement to attorneys’ fees, however, is dependent on the terms of the lease and on state law;" }, { "docid": "12616615", "title": "", "text": "Gen.Stat. § 6-21.2(5). In sum, for Three Sisters to recover its postpetition attorneys’ fees through the operation of § 365(b)(1)(B) of the Bankruptcy Code, which incorporates North Carolina law, the lease between Three Sisters and Shangra-La must have a clear contractual provision allocating to Three Sisters the right to collect attorneys’ fees, that provision must be lawful under an express grant of North Carolina statutory authority, and Three Sisters must meet the requirements of the statute to collect its fees. 3. Applying this analysis to Three Sisters’s claim that it was improperly denied postpetition attorneys’ fees, we conclude that remand to the bankruptcy court for further consideration of factual matters is necessary. As to preliminary matters, the lease contains a clear attorneys’ fees provision in paragraph 22.4 of the lease, and, as we just discussed, such fees are recoverable under North Carolina law. Further, the Bankruptcy Code recognizes that a landlord must be compensated for actual pecuniary losses resulting from defaults that occurred under the lease during the course of the debtor’s insolvency. See 11 U.S.C.A. § 365(b)(1)(B). Attorneys’ fees qualify as actual pecuniary losses when state law would recognize them as such. See, e.g., In re Ryan’s Subs, Inc., 165 B.R. 465, 467 (Bankr.W.D. Mo. 1994). The lease in this case permits recovery of fees where the lessor employs an attorney “to collect any sums due under the lease or enforce any obligation of LESSEE hereunder.” Accordingly, the focus of the bankruptcy court on remand as to any disputed item of fees should be on whether the attorney’s action was taken primarily to collect sums due under the lease or to enforce an obligation of the lessee. If so, and if the requested fee is otherwise reasonable, the fact that issues peculiar to federal bankruptcy law were involved will not preclude an award of fees. Accordingly, the focus of the bankruptcy court on remand as to any disputed item of fees should be on whether the attorney’s action was taken primarily to collect sums due under the lease or to enforce an obligation of the lessee and whether state" }, { "docid": "15479549", "title": "", "text": "disputes Service Merchandise’s claim for fees and expenses incurred due to “Debtor’s filing of a Chapter 11 petition [which constituted] a default [under the Lease]” and for the “costs of preparing for and attending the hearing on this [claim] objection.” Consumer Merchandise’s Response at 2-3. Although attorneys’ fees are not independently recoverable under the Bankruptcy Code, section 365(b)(1)(B) allows for such recovery if based upon the existence of a separate agreement between the parties. In re Best Products Co., 148 B.R. 413, 414 (Bankr.S.D.N.Y.1992); In re Hillsborough Holdings Corp., 126 B.R. 895 (Bankr.M.D.Fla.1991); In re Westview 74th Street Drug Corp., 59 B.R. 747 (Bankr.S.D.N.Y.1986). But see In re Westworld Community Health Care, Inc., 95 B.R. 730 (Bankr.C.D.Cal.1989); In re Foreign Crating, Inc., 55 B.R. 53 (Bankr.E.D.N.Y.1985). Paragraph 14.1 of the Lease provided for payment of legal fees as follows: Tenant shall protect [and] indemnify ... Landlord from ... costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) imposed upon or incurred by ... Landlord ... by reason of ... any failure on the part of the Ten ant ... to perform or comply with any of the terms of this Lease.... Ex. 1 at 21. Therefore, if Child World breached any of the covenants contained in the Lease, Service Merchandise is entitled to attorneys’ fees incurred in the enforcement of such covenants. Service Merchandise claims that Child World breached two specific covenants of the Lease by; (i) failing to make timely payments due under the Lease; and by (ii) filing a Chapter 11 petition with this Court. While the first ground for breach put forth by Service Merchandise is not directly admitted to by Child World, it does concede that any reasonable attorneys’ fees incurred by Service Merchandise in enforcing the timely payment of rental, tax and common area maintenance charges under the Lease during the period from the petition date to September 21, 1992 are recoverable as an administrative expense. Child World’s Reply Brief at 7. The second ground for breach, however, is disputed by Child World as being an ipso facto clause and thus void under" }, { "docid": "4736762", "title": "", "text": "second, if section 365(b)(1)(B) does not create such a right, what remedy is available to Subway under the franchise agreement and subleases. Subway cites one case which holds that section 365(b)(1)(B) creates an independent right to attorney’s fees incurred following a default. In re Westworld Community Healthcare, Inc., 95 B.R. 730, 733 (Bankr.C.D.Cal.1989). The court in Westworld found that section 365(b)(1) was designed to limit the trustee’s power to assume executory contracts and unexpired leases. Id. Against that one holding, the vast majority of cases have found that section 365(b)(1)(B) does not provide an independent right of recovery without regard to the terms of the lease or contract. See, e.g., In re Child World, Inc., 161 B.R. 349, 353 (Bankr.S.D.N.Y.1993); In re F & N Acquisition Corp., 152 B.R. 304, 308 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991); In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08 (Bankr.E.D.Penn.1989); In re Westview 74th Street Drug Corp., 59 B.R. 747, 756-57 (Bankr.S.D.N.Y.1986); In re Tech Hifi, Inc., 49 B.R. 876, 881 (Bankr.D.Mass.1985); Andrew v. KMR Corp. (In re Bullock), 17 B.R. 438, 439 (Bankr. 9th Cir.1982). I agree with the majority that section 365(b)(1)(B) does not provide an independent right of recovery of attorney’s fees and expenses. Section 365 does not, and was not intended to, give creditors greater rights than they would have under the contract or lease which gives rise to the debt. See F & N Acquisition at 307 (citing In re Bon Ton Restaurant & Pastry Shop, Inc., 53 B.R. 789, 804 (Bankr.N.D.Ill.1985)). The actual pecuniary loss suffered by a creditor is that amount which could be recovered under state law outside of bankruptcy. Here, that amount is established by the agreement of the parties. Thus, I reach the issue of what right of recovery is provided by the subleases and contracts in this case. I will begin with the franchise agreement which provides: (d) In the event that the Franchisee withholds any monies due under this Agreement ... the Company shall be reimbursed by the Franchisee for all reasonable costs that it incurs" }, { "docid": "9588286", "title": "", "text": "fees from the debtor. Attorneys’ fees incurred in attempting to collect sums due from debtors following default may be recovered as pecuniary loss under § 365(b)(1)(B) if such monies were expended as the result of a default under the contract or lease between the parties and are recoverable under the contract and applicable state law. See, e.g., In re F & N Acquisition Corp., 152 B.R. 304, 308 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991). Entitlement to attorneys’ fees, however, is dependent on the terms of the lease and on state law; § 365(b)(1)(B) does not create an independent right to an award of attorneys’ fees. See, e.g., In re Ryan’s Subs, Inc., 165 B.R. 465, 467 (Bankr.W.D.Mo.1994); In re Child World, Inc., 161 B.R. 349, 353 (Bankr.S.D.N.Y.1993); Inre F & N Acquisition Corp., 152 B.R. at 308; In re Hillsborough Holdings Corp., 126 B.R. at 898; In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08 (Bankr.E.D.Pa.1989); In re Westview 74th Street Drug Corp., 59 B.R. 747, 756-57 (Bankr.S.D.N.Y.1986); In re Tech Hifi, Inc., 49 B.R. 876, 881 (Bankr.D.Mass.1985). While McDonald’s cited some case law allowing landlords to recover attorney fees in connection with enforcement of the covenants of the leases at issue, the leases in those cases specifically provided for such recovery. In this case, the lease allows recovery of attorney fees only in certain, specific instances. The cardinal rule for interpretation of contracts is to ascertain the intention of the parties from the contract as a whole and to give effect to that intention consistent with legal principles. Winfree v. Educators Credit Union, 900 S.W.2d 285, 289 (Tenn.Ct.App.1995); Rainey v. Stansell, 836 S.W.2d 117, 118 (Tenn.Ct.App.1992). The court, in arriving at the intention of the parties to a contract, does not attempt to ascertain the parties’ state of mind at the time the contract was executed, but rather their intentions as actually embodied and expressed in the contract as written. Id. In construing contracts, the words expressing the parties’ intention should be given their usual, natural, and ordinary meaning. Taylor v. White Stores, Inc.," }, { "docid": "17802299", "title": "", "text": "§ 503(b)(4) because of the substantial contribution it made to the case. The trustee and the Bankruptcy Administrator concede that Three Sisters is entitled to some attorneys’ fees and expenses related to Shangra-La’s lease defaults, but maintain that Three Sisters should not recover any fees or expenses for legal services and expenses related to representation of its interests in the bankruptcy case. 11 U.S.C. § 365(b)(1)(B) 11 U.S.C. § 365(b)(1)(B) states that (b)(1) If there has been a default in an executory contract or unexpired lease of the debtor, the trustee may not assume such contract or lease unless, at the time of assumption of such contract or lease, the trustee — ____ (B) compensates, or provides adequate assurance that the trustee will promptly compensate, a party other than the debtor to such contract or lease, for any actual pecuniary loss to such party resulting from such default[.] (emphasis added). This court agrees with the majority of courts that hold that the pecuniary loss language of § 365(b)(1)(B) does not create an independent entitlement to attorney’s fees and that attorney’s fees may be a part of the “pecuniary loss” under § 365(b)(1)(B) only if attorney’s fees are provided for by the specific terms of the lease or executory contract being assumed. Lacey v. Westside Print Works, Inc. (In re Westside Print Works, Inc.), 180 B.R. 557 (9th Cir. BAP 1995) (rejecting In re Westworld Community Healthcare, 95 B.R. 730 (Bankr.C.D.Cal.1989)); In re Child World, Inc., 161 B.R. 349 (Bankr.S.D.N.Y.1993); In re F & N Acquisition Corp., 152 B.R. 304 (Bankr.W.D.Wash.1993). Under the “American Rule,” a prevailing litigant is not entitled to attorney’s fees unless specifically provided for by statute or pursuant to the terms of a contract. Alyeska Pipeline Serv. v. Wilderness Soc., 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). In this case Three Sisters’ lease contains two provisions regarding Shangra-La’s liability for legal expenses. Paragraph 15.1 of the lease provides that The LESSEE expressly agrees to indemnify ... the LESSOR ... from and against any and all ... claims, actions or demands for labor, materials or" }, { "docid": "9588285", "title": "", "text": "the successful party for the reasonable expense of attorney’s fees and disbursements incurred therein by the successful party. Under this provision, McDonald’s argues that it is entitled to the payment of attorney fees because it hired outside counsel to enforce its rights under the Ground Lease. McDonald’s presented two witnesses, Frank Kudia, in house legal counsel, and Carol Wingles, in house accountant, to support its contention that it acted reasonably. Mr. Kudia explained that McDonald’s had to ensure that the debtor was current on its rent, that the debtor had insurance coverage in effect with McDonald’s named as a loss payee, and that the debtor had reimbursed McDonald’s for taxes paid as required by the lease. Further, outside counsel was necessary to negotiate additional protections cash collateral order. The debtor contends that while the hours may have been expended by McDonald’s counsel, the debtor has no liability for attorney fees under the lease. First, as a matter of law, the court finds that the contract’s attorney fee provision does not permit McDonald’s to recover attorney fees from the debtor. Attorneys’ fees incurred in attempting to collect sums due from debtors following default may be recovered as pecuniary loss under § 365(b)(1)(B) if such monies were expended as the result of a default under the contract or lease between the parties and are recoverable under the contract and applicable state law. See, e.g., In re F & N Acquisition Corp., 152 B.R. 304, 308 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991). Entitlement to attorneys’ fees, however, is dependent on the terms of the lease and on state law; § 365(b)(1)(B) does not create an independent right to an award of attorneys’ fees. See, e.g., In re Ryan’s Subs, Inc., 165 B.R. 465, 467 (Bankr.W.D.Mo.1994); In re Child World, Inc., 161 B.R. 349, 353 (Bankr.S.D.N.Y.1993); Inre F & N Acquisition Corp., 152 B.R. at 308; In re Hillsborough Holdings Corp., 126 B.R. at 898; In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08 (Bankr.E.D.Pa.1989); In re Westview 74th Street Drug Corp., 59 B.R. 747, 756-57 (Bankr.S.D.N.Y.1986); In re" }, { "docid": "12616614", "title": "", "text": "120, 123 (N.C.App.1976)) (alteration omitted). “Thus the general rule [in North Carolina is] that a successful litigant may not recover attorneys’ fees, whether as costs or as an item of damages, unless such a recovery is expressly authorized by statute.” Id. “Even in the face of a carefully drafted contractual provision” authorizing payment of attorneys’ fees, the North Carolina courts “have consistently refused to sustain such an award absent statutory authority therefor.” Id. 266 S.E.2d at 814-15. Section 6-21.2 of the North Carolina General Statutes provides the statutory authority for recovering attorneys’ fees when permitted in a lease. See R.C. Assocs. v. Regency Ventures, Inc., 111 N.C.App. 367, 432 S.E.2d 394, 397 (N.C.App.1993) (noting that leases are “other evidence of indebtedness” under N.C. Gen.Stat. § 6-21.2). The statute caps an award of attorneys’ fees at fifteen percent of the outstanding balance owing on the instrument of indebtedness, see N.C. Gen.Stat. § 6- 21.2(1) & (2), and further requires that parties wishing to enforce the provisions of their attorneys’ fee agreements give adequate notice, see N.C. Gen.Stat. § 6-21.2(5). In sum, for Three Sisters to recover its postpetition attorneys’ fees through the operation of § 365(b)(1)(B) of the Bankruptcy Code, which incorporates North Carolina law, the lease between Three Sisters and Shangra-La must have a clear contractual provision allocating to Three Sisters the right to collect attorneys’ fees, that provision must be lawful under an express grant of North Carolina statutory authority, and Three Sisters must meet the requirements of the statute to collect its fees. 3. Applying this analysis to Three Sisters’s claim that it was improperly denied postpetition attorneys’ fees, we conclude that remand to the bankruptcy court for further consideration of factual matters is necessary. As to preliminary matters, the lease contains a clear attorneys’ fees provision in paragraph 22.4 of the lease, and, as we just discussed, such fees are recoverable under North Carolina law. Further, the Bankruptcy Code recognizes that a landlord must be compensated for actual pecuniary losses resulting from defaults that occurred under the lease during the course of the debtor’s insolvency. See 11" }, { "docid": "6850783", "title": "", "text": ". Paragraph 13.2 of the Lease provides in relevant part: \"Remedies. In the event of any such material default or breach by the Lessee, Lessor may at any time thereafter, with or without notice or demand and without limiting Lessor in the exercise of any right or remedy which the Lessor may have by reason of such default or breach. (a) Terminate Lessee’s right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession of the Premises to Lessor. In such event (i.e. default) Lessor shall be entitled to recover from Lessee all damages incurred by Lessor by reason of Lessee’s default including but not limited to, the cost of recovering the Premises, expenses of reletting, including necessary renovation and alteration of the Premises, reasonable attorney's fees, and any real estate commission actually paid.... (b) Maintain Lessee’s right to possession in which case the Lease shall continue in effect whether or not Lessee shall have abandoned the Premises. In such event Lessor shall be entitled to enforce all of Lessor's rights and remedies under this Lease, including the right to recover rent as it becomes due hereunder....” (emphasis added). . See also In re French, 131 B.R. 138, 141 (Bankr.E.D.Mo.1991) (following In re Westworld); In re BAB Enterprises, 100 B.R. 982, 984 (Bankr.W.D.Tenn.1989) (following Westworld and awarding attorney fees pursuant to subsection (B)). . See also In re Child World, Inc., 161 B.R. 349, 353-54 (Bankr.S.D.N.Y.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991) (rejecting In re Westworld; In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08) (Bankr.E.D.Pa.1989) (rejecting In re Westworld Community Healthcare, Inc. and holding subsection (B) does not create an independent right to attorney's fees)." }, { "docid": "10221680", "title": "", "text": "only published case that the Court has found expressly holding that § 365(b)(1) provides a right of recovery without regard to the terms of the lease. In every other case in which attorney’s fees have been awarded, the fees have been authorized by the lease agreement. See In re Hillsborough Holdings Corp., 126 B.R. 895 (Bankr.M.D.Fla.1991); In re Joshua Slocum, Ltd., 103 B.R. 601 (Bankr. E.D.Pa.1989); In re Diamond Head Emporium, Inc., 69 B.R. 487 (Bankr.D.Haw. 1987); In re Westview 74th Street Drug Corp., 59 B.R. 747 (Bankr.S.D.N.Y.1986); In re J.W. Mays, Inc., 30 B.R. 769 (Bankr. S.D.N.Y.1983); In re Bullock, 17 B.R. 438 (9th Cir.B.A.P.1982). The F & N/Titanic lease specifically requires that each party bear its own attorneys’ fees in “enforcing the covenants and agreements of this Lease.” Certainly under these circumstances there is no reason for the Court to depart from the majority view by awarding attorney’s fees as an element of pecuniary loss under § 365(b)(1)(B). This conclusion is buttressed by the Ninth Circuit’s strong adherence to the American rule, as expressed recently in Layman v. Combs, 981 F.2d 1093 (9th Cir.1992). In addition to attorneys’ fees, Titanic requests interest on monetary defaults, citing In re Hillsborough Holdings Corp., supra. While the Hillsborough Holdings court did not authorize attorneys’ fees, it allowed interest at the legal rate provided by state law, stating simply that interest is “an actual pecuniary loss flowing directly from the admitted default of the Debtor.” Likewise in In re Mays, Inc., supra, the court declined to award attorneys’ fees, but it allowed interest because state law required tenants to pay interest on rental installments from the time they are due. The lease under consideration does not provide for interest on monetary defaults. Article XXIX provides that “[n]o action shall be maintained against Tenant by Landlord ... on account of this Lease except (i) for the recovery of the specific sums required to be paid by Tenant by the express terms of this Lease ...” (emphasis added). The Court is not aware of any provision of state law that requires interest to be" }, { "docid": "4736761", "title": "", "text": "powers of a trustee. 11 U.S.C. § 1107(a). The debtors-in-possession (“debtors”) have elected to assume both the franchise agreement and the two subleases, and have cured the defaults. See 11 U.S.C. § 365(b)(1)(A). However, debtors also must compensate Subway for any actual pecuniary loss resulting from the default. 11 U.S.C. § 365(b)(1)(B). Attorney’s fees incurred in attempting to collect sums due from debtors following default are defined as a pecuniary loss. See, e.g., In re F & N Acquisition Corp., 152 B.R. 304 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895 (Bankr.M.D.Fla.1991); In re Westworld Community Healthcare, Inc., 95 B.R. 730 (Bankr.C.D.Cal.1989). Subway claims that it has incurred $12,292.78 in attorney’s fees and expenses since the filing of this bankruptcy, and that such fees resulted from debtors’ default. Therefore, Subway asks that debtors pay that amount to compensate Subway for its actual pecuniary loss. This case raises two issues. First, does section 365(b)(1)(B) create an independent right to attorney’s fees and expenses even if the underlying agreements would not so obligate the debtor. And second, if section 365(b)(1)(B) does not create such a right, what remedy is available to Subway under the franchise agreement and subleases. Subway cites one case which holds that section 365(b)(1)(B) creates an independent right to attorney’s fees incurred following a default. In re Westworld Community Healthcare, Inc., 95 B.R. 730, 733 (Bankr.C.D.Cal.1989). The court in Westworld found that section 365(b)(1) was designed to limit the trustee’s power to assume executory contracts and unexpired leases. Id. Against that one holding, the vast majority of cases have found that section 365(b)(1)(B) does not provide an independent right of recovery without regard to the terms of the lease or contract. See, e.g., In re Child World, Inc., 161 B.R. 349, 353 (Bankr.S.D.N.Y.1993); In re F & N Acquisition Corp., 152 B.R. 304, 308 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991); In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08 (Bankr.E.D.Penn.1989); In re Westview 74th Street Drug Corp., 59 B.R. 747, 756-57 (Bankr.S.D.N.Y.1986); In re Tech Hifi, Inc., 49 B.R. 876, 881 (Bankr.D.Mass.1985); Andrew" }, { "docid": "12616616", "title": "", "text": "U.S.C.A. § 365(b)(1)(B). Attorneys’ fees qualify as actual pecuniary losses when state law would recognize them as such. See, e.g., In re Ryan’s Subs, Inc., 165 B.R. 465, 467 (Bankr.W.D. Mo. 1994). The lease in this case permits recovery of fees where the lessor employs an attorney “to collect any sums due under the lease or enforce any obligation of LESSEE hereunder.” Accordingly, the focus of the bankruptcy court on remand as to any disputed item of fees should be on whether the attorney’s action was taken primarily to collect sums due under the lease or to enforce an obligation of the lessee. If so, and if the requested fee is otherwise reasonable, the fact that issues peculiar to federal bankruptcy law were involved will not preclude an award of fees. Accordingly, the focus of the bankruptcy court on remand as to any disputed item of fees should be on whether the attorney’s action was taken primarily to collect sums due under the lease or to enforce an obligation of the lessee and whether state law would allow recovery for such actions. From our standpoint, reviewing the limited record before us, it is hard to decipher what defaults occurred under the lease and what steps Three Sisters took to cure those defaults. It is also difficult for us to determine whether Three Sisters’s postpetition involvement in Shangra-La’s bankruptcy proceeding had any relationship to defaults under the lease or were undertaken for another purpose. It is equally troublesome for us to determine whether the fees sought by Three Sisters’s attorneys are reasonable. Interpreting the contract and the course of events pre- and postpetition raises myriad factual issues that the lower court must resolve in the first instance. 4. The Trustee and the Bankruptcy Administrator for the Eastern District of North Carolina argue, however, that there is no need for us to remand this matter, because a recovery of attorneys’ fees is foreclosed by operation of North Carolina law. They argue that attorneys’ fees are recoverable under N.C. Gen.Stat. § 6-21.2(5) only if the party seeking the fees gives notice, and the" }, { "docid": "10221679", "title": "", "text": "it all on the anchor tenant. The debtor’s predecessor apparently had sufficient bargaining power to obtain this clause. It is not ambiguous, and it is not inconsistent with any other part of the lease. Hence there is no reason to go beyond the document to ascertain the intent of the parties. SECTION 365(b)(1)(B) AS AN INDEPENDENT COURSE OF DAMAGES Titanic continues to maintain that § 365(b)(1)(B) provides an independent basis for damages beyond those which are authorized by the lease. In support of its position, Titanic cites two cases in which the courts have awarded attorney’s fees as part of a cure or in compensation for actual pecuniary loss under § 365(b)(1). They are In re Westworld Community Healthcare, Inc., 95 B.R. 730 (Bankr.C.D.Cal.1989); In re Foreign Crating, Inc., 55 B.R. 53 (Bankr.E.D.N.Y.1985). In addition, Titanic cites In re Hillsborough Holdings Corp., 126 B.R. 895 (Bankr.M.D.Fla.1991) for the proposition that it is entitled to interest as an element of pecuniary loss. With respect to attorney’s fees, In re Westworld Community Healthcare, Inc., supra, is the only published case that the Court has found expressly holding that § 365(b)(1) provides a right of recovery without regard to the terms of the lease. In every other case in which attorney’s fees have been awarded, the fees have been authorized by the lease agreement. See In re Hillsborough Holdings Corp., 126 B.R. 895 (Bankr.M.D.Fla.1991); In re Joshua Slocum, Ltd., 103 B.R. 601 (Bankr. E.D.Pa.1989); In re Diamond Head Emporium, Inc., 69 B.R. 487 (Bankr.D.Haw. 1987); In re Westview 74th Street Drug Corp., 59 B.R. 747 (Bankr.S.D.N.Y.1986); In re J.W. Mays, Inc., 30 B.R. 769 (Bankr. S.D.N.Y.1983); In re Bullock, 17 B.R. 438 (9th Cir.B.A.P.1982). The F & N/Titanic lease specifically requires that each party bear its own attorneys’ fees in “enforcing the covenants and agreements of this Lease.” Certainly under these circumstances there is no reason for the Court to depart from the majority view by awarding attorney’s fees as an element of pecuniary loss under § 365(b)(1)(B). This conclusion is buttressed by the Ninth Circuit’s strong adherence to the American rule, as" }, { "docid": "9588300", "title": "", "text": "a matter of law, no attorney fees should be awarded McDonald’s, and alternatively, that the proof at trial established no basis in law or fact for the award of attorney fees. The court therefore overrules McDonald’s supplemental objection to the debtor’s motion to assume the lease for Front Runner Market # 1116, and denies all attorney fee requests. It is, THEREFORE, so ordered. . McDonald's cites In re BAB Enterprises, Inc., 100 B.R. 982 (Bankr.W.D.Tenn.1989) for the proposition that section 365(b)(1)(B) does provide a lessor with an independent right to recover attorney fees. In that case, the debt- or, as part of its motion to assume the lease, agreed to pay the landlord $1,000 in attorney fees. The court relied on In re Westworld Community Healthcare, Inc., 95 B.R. 730 (Bankr.C.D.Cal.1989) finding § 365(b)(1)(B) did permit the debtor to pay $1,000 to the lessor as long as such amount was reasonable. The majority of courts have rejected the Westworld Community decision and held that, \"section 365 does not, and was not intended to, give creditors greater rights than they would have had under the contract or lease which gave rise to the debt.” In re Ryan's Subs, Inc., 165 B.R. 465, 468 (Bankr.W.D.Mo.1994); see also In re Child World, Inc., 161 B.R. 349, 353-54 (Bankr.S.D.N.Y.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991) (rejecting In re Westworld); In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08 (Bankr.E.D.Pa.1989) (rejecting In re Westworld Community Healthcare, Inc. and holding subsection (B) does not create an independent right to attorney's fees). These cases rely on the \"American Rule,” that unless otherwise specified in a contract or statute, parties to litigation must bear their own attorney's fees. See Johnson v. Righetti (In re Johnson), 756 F.2d 738, 741 (9th Cir.1985) cert. denied, 474 U.S. 828, 106 S.Ct. 88, 88 L.Ed.2d 72 (1985) (applying American rule to § 362). Further, Congress specifically grants the right to attorney's fees in other provisions of the Code. See 11 U.S.C. § 363(h) (allowing recovery of \"actual damages, including costs and attorney’s fees”); and 11 U.S.C. § 506(b)" }, { "docid": "4736760", "title": "", "text": "the arrearages due Subway. That Stipulated Order left open the issues of the allowability and reasonableness of attorney’s fees claimed by Subway, All arrearages, other than the disputed attorney’s fees, have now been paid by debtors, DISCUSSION As a rule, creditors are not entitled to attorney’s fees in bankruptcy unless a specific provision of the Bankruptcy Code (the “Code”) so allows. See, e.g., 11 U.S.C. §§ 503(b), 506(b). However, section 365(b)(1)(B) of the Code provides: (b)(1) If there has been a default in an executory contract or unexpired lease of the debtor, the trustee may not assume such contract or lease unless, at the time of assumption of such contract or lease, the trustee— (B) compensates, or provides adequate assurance that the trustee will promptly compensate, a party other than the debtor to such contract or lease for any actual pecuniary loss to such party resulting from such default; and 11 U.S.C. § 365(b)(1)(B). In a Chapter 11 case, absent any limitations or conditions that the Court imposes, a debtor-in-possession has all the rights and powers of a trustee. 11 U.S.C. § 1107(a). The debtors-in-possession (“debtors”) have elected to assume both the franchise agreement and the two subleases, and have cured the defaults. See 11 U.S.C. § 365(b)(1)(A). However, debtors also must compensate Subway for any actual pecuniary loss resulting from the default. 11 U.S.C. § 365(b)(1)(B). Attorney’s fees incurred in attempting to collect sums due from debtors following default are defined as a pecuniary loss. See, e.g., In re F & N Acquisition Corp., 152 B.R. 304 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895 (Bankr.M.D.Fla.1991); In re Westworld Community Healthcare, Inc., 95 B.R. 730 (Bankr.C.D.Cal.1989). Subway claims that it has incurred $12,292.78 in attorney’s fees and expenses since the filing of this bankruptcy, and that such fees resulted from debtors’ default. Therefore, Subway asks that debtors pay that amount to compensate Subway for its actual pecuniary loss. This case raises two issues. First, does section 365(b)(1)(B) create an independent right to attorney’s fees and expenses even if the underlying agreements would not so obligate the debtor. And" }, { "docid": "12616613", "title": "", "text": "§ 365(b)(1)(B) does not create an independent right to an award of attorneys’ fees. See, e.g., In re Ryan’s Subs, Inc., 165 B.R. 465, 467 (Bankr.W.D.Mo.1994); In re Child World, Inc., 161 B.R. 349, 353 (Bankr.S.D.N.Y.1993); In re F &N Acquisition Corp., 152 B.R. at 308; In re Hillsborough Holdings Corp., 126 B.R. at 898; In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08 (Bankr.E.D.Penn.1989) ; In re Westview 74th Street Drug Corp., 59 B.R. 747, 756-57 (Bankr.S.D.N.Y.1986); In re Tech Hifi, Inc., 49 B.R. 876, 881 (Bankr.D.Mass.1985). 2. North Carolina law governs the Three Sisters/Shangra-La lease, and therefore we must look to North Carolina law to evaluate Three Sisters’s argument that it is entitled to postpetition attorneys’ fees under state law and, accordingly, also under § 365(b)(1)(B). “‘The jurisprudence of North Carolina traditionally has frowned upon contractual obligations for attorney’s fees as part of the costs of an action.’” Stillwell Enters., Inc. v. Interstate Equip. Co., 300 N.C. 286, 266 S.E.2d 812, 814 (N.C.1980) (quoting Supply, Inc. v. Allen, 30 N.C.App. 272, 227 S.E.2d 120, 123 (N.C.App.1976)) (alteration omitted). “Thus the general rule [in North Carolina is] that a successful litigant may not recover attorneys’ fees, whether as costs or as an item of damages, unless such a recovery is expressly authorized by statute.” Id. “Even in the face of a carefully drafted contractual provision” authorizing payment of attorneys’ fees, the North Carolina courts “have consistently refused to sustain such an award absent statutory authority therefor.” Id. 266 S.E.2d at 814-15. Section 6-21.2 of the North Carolina General Statutes provides the statutory authority for recovering attorneys’ fees when permitted in a lease. See R.C. Assocs. v. Regency Ventures, Inc., 111 N.C.App. 367, 432 S.E.2d 394, 397 (N.C.App.1993) (noting that leases are “other evidence of indebtedness” under N.C. Gen.Stat. § 6-21.2). The statute caps an award of attorneys’ fees at fifteen percent of the outstanding balance owing on the instrument of indebtedness, see N.C. Gen.Stat. § 6- 21.2(1) & (2), and further requires that parties wishing to enforce the provisions of their attorneys’ fee agreements give adequate notice, see N.C." }, { "docid": "9588301", "title": "", "text": "greater rights than they would have had under the contract or lease which gave rise to the debt.” In re Ryan's Subs, Inc., 165 B.R. 465, 468 (Bankr.W.D.Mo.1994); see also In re Child World, Inc., 161 B.R. 349, 353-54 (Bankr.S.D.N.Y.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991) (rejecting In re Westworld); In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08 (Bankr.E.D.Pa.1989) (rejecting In re Westworld Community Healthcare, Inc. and holding subsection (B) does not create an independent right to attorney's fees). These cases rely on the \"American Rule,” that unless otherwise specified in a contract or statute, parties to litigation must bear their own attorney's fees. See Johnson v. Righetti (In re Johnson), 756 F.2d 738, 741 (9th Cir.1985) cert. denied, 474 U.S. 828, 106 S.Ct. 88, 88 L.Ed.2d 72 (1985) (applying American rule to § 362). Further, Congress specifically grants the right to attorney's fees in other provisions of the Code. See 11 U.S.C. § 363(h) (allowing recovery of \"actual damages, including costs and attorney’s fees”); and 11 U.S.C. § 506(b) (allowing fees provided for under a security agreement). Because Congress has specifically provided for fees in some circumstances but not in others, the courts should not imply attorney’s fees where they are not specifically provided for by contract or statute. The Ninth Circuit Bankruptcy Appellate Panel has also rejected In re Westworld upon which the BAB Enterprises decision relied, holding that § 365(b)(1)(B) does not create an independent right to attorney fees, and that not only was Westworld wrongly decided, but that the \"American Rule” prohibits an independent award of attorney fees under subsection (B). In re Westside Print Works, Inc., 180 B.R. 557 (9th Cir. BAP 1995). Accordingly, this court agrees with the majority of courts considering the issue, that section 365(b)(1)(B) does not provide an independent basis for recovery of attorney fees. . Also pending was McDonald's objection to the debtor's motion to use cash collateral. McDonald’s argued that a specific carve-out should be included that allowed for payment of rent, escrow of taxes, and CAM charges. The debtor ultimately agreed to allow" }, { "docid": "15479548", "title": "", "text": "order (the “Order”) allowing for the assumption and assignment of the Lease by Child World to Musicland Group, Inc. under 11 U.S.C. §§ 365 and 363. The Order further provided that Child World’s liability under the Lease would end at midnight on the day prior to the closing of the assignment, namely midnight, September 21, 1993. On April 16, 1993, Service Merchandise filed a claim for post-petition attorneys’ fees and expenses arising from Child World’s purported breach of certain obligations under, the Lease in the amount of $13,573.64. On August 24, 1993, Child World objected to the amount of Service Merchandise’s claim to the extent that such claim reflected attorneys’ fees other than those “incurred in enforcing the rental, tax and common area maintenance provisions of the Lease incurred from the [pjetition [djate through September 21, 1992.” Child World’s Reply Brief at 7. Child World concedes that attorneys’ fees are due and owing for enforcement of the Lease provisions during the underlying period from the petition date to September 21, 1992. Id. However, Child World disputes Service Merchandise’s claim for fees and expenses incurred due to “Debtor’s filing of a Chapter 11 petition [which constituted] a default [under the Lease]” and for the “costs of preparing for and attending the hearing on this [claim] objection.” Consumer Merchandise’s Response at 2-3. Although attorneys’ fees are not independently recoverable under the Bankruptcy Code, section 365(b)(1)(B) allows for such recovery if based upon the existence of a separate agreement between the parties. In re Best Products Co., 148 B.R. 413, 414 (Bankr.S.D.N.Y.1992); In re Hillsborough Holdings Corp., 126 B.R. 895 (Bankr.M.D.Fla.1991); In re Westview 74th Street Drug Corp., 59 B.R. 747 (Bankr.S.D.N.Y.1986). But see In re Westworld Community Health Care, Inc., 95 B.R. 730 (Bankr.C.D.Cal.1989); In re Foreign Crating, Inc., 55 B.R. 53 (Bankr.E.D.N.Y.1985). Paragraph 14.1 of the Lease provided for payment of legal fees as follows: Tenant shall protect [and] indemnify ... Landlord from ... costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) imposed upon or incurred by ... Landlord ... by reason of ... any failure on the" }, { "docid": "17802300", "title": "", "text": "attorney’s fees and that attorney’s fees may be a part of the “pecuniary loss” under § 365(b)(1)(B) only if attorney’s fees are provided for by the specific terms of the lease or executory contract being assumed. Lacey v. Westside Print Works, Inc. (In re Westside Print Works, Inc.), 180 B.R. 557 (9th Cir. BAP 1995) (rejecting In re Westworld Community Healthcare, 95 B.R. 730 (Bankr.C.D.Cal.1989)); In re Child World, Inc., 161 B.R. 349 (Bankr.S.D.N.Y.1993); In re F & N Acquisition Corp., 152 B.R. 304 (Bankr.W.D.Wash.1993). Under the “American Rule,” a prevailing litigant is not entitled to attorney’s fees unless specifically provided for by statute or pursuant to the terms of a contract. Alyeska Pipeline Serv. v. Wilderness Soc., 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). In this case Three Sisters’ lease contains two provisions regarding Shangra-La’s liability for legal expenses. Paragraph 15.1 of the lease provides that The LESSEE expressly agrees to indemnify ... the LESSOR ... from and against any and all ... claims, actions or demands for labor, materials or related services incurred by LESSEE in connection with any work done upon leased Premises by LESSEE or anyone claiming under LESSEE so that the leased Premises shall at all times be free of any liens.... The LESSEE shall repay LESSOR, as additional rent hereunder on demand, all sums disbursed or deposited by LESSOR pursuant to the foregoing provisions of the Lease, including LESSOR’S costs and reasonable attorneys’ fees incurred. Paragraph 22.4 provides that In the event the LESSOR shall employ an attorney to collect any sum due under the Lease or enforce any obligation of the LESSEE hereunder, the LESSEE shall be liable for reasonable attorneys’ fees in the amount of fifteen percent (15%) or the maximum percentage allowed thereunder of the outstanding balance due under the Lease pursuant to N.C.G.S. § 6-21.2 now in effect or as amended. Consequently, attorneys’ fees incurred by Three Sisters in pursuit of its remedies regarding the lease default may be a'part of its pecuniary loss under § 365(b)(1)(B). Prior to bankruptcy Shangra-La allowed liens to be filed against" }, { "docid": "12616612", "title": "", "text": "has been a default ... the trustee may not assume such contract or lease unless ... the trustee ... cures, or provides adequate assurance that the trustee will promptly cure, such default.”). Further, prior to assumption of the lease, the trustee must “compensate[ ], or provide[] adequate assurance that the trustee will promptly compensate, a party other than the debtor to such contract or lease, for any actual pecuniary loss to such party resulting from such default.” 11 U.S.C.A. § 365(b)(1)(B) (emphasis added). Attorneys’ fees incurred in attempting to collect sums due from debtors following default may be recovered as pecuniary loss under § 365(b)(1)(B) if such monies were expended as the result of a default under the contract or lease between the parties and are recoverable under the contract and applicable state law. See, e.g., In re F & N Acquisition Corp., 152 B.R. 304, 308 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991). Entitlement to attorneys’ fees, however, is dependent on the terms of the lease and on state law; § 365(b)(1)(B) does not create an independent right to an award of attorneys’ fees. See, e.g., In re Ryan’s Subs, Inc., 165 B.R. 465, 467 (Bankr.W.D.Mo.1994); In re Child World, Inc., 161 B.R. 349, 353 (Bankr.S.D.N.Y.1993); In re F &N Acquisition Corp., 152 B.R. at 308; In re Hillsborough Holdings Corp., 126 B.R. at 898; In re Joshua Slocum, Ltd., 103 B.R. 601, 607-08 (Bankr.E.D.Penn.1989) ; In re Westview 74th Street Drug Corp., 59 B.R. 747, 756-57 (Bankr.S.D.N.Y.1986); In re Tech Hifi, Inc., 49 B.R. 876, 881 (Bankr.D.Mass.1985). 2. North Carolina law governs the Three Sisters/Shangra-La lease, and therefore we must look to North Carolina law to evaluate Three Sisters’s argument that it is entitled to postpetition attorneys’ fees under state law and, accordingly, also under § 365(b)(1)(B). “‘The jurisprudence of North Carolina traditionally has frowned upon contractual obligations for attorney’s fees as part of the costs of an action.’” Stillwell Enters., Inc. v. Interstate Equip. Co., 300 N.C. 286, 266 S.E.2d 812, 814 (N.C.1980) (quoting Supply, Inc. v. Allen, 30 N.C.App. 272, 227 S.E.2d" } ]

[ { "docid": "6231766", "title": "", "text": "without the latter’s written consent). Notwithstanding the contrary policy language, EmbroidMe argues that it can still prevail on its claim for reimbursement because Travelers failed to timely notify Em-broidMe that Travelers was unwilling to pay these previously-incurred expenses. According to EmbroidMe, because of this untimely notification, Travelers ran afoul of the CAS and, as a result, it cannot enforce those terms of the policy disallowing a demand for reimbursement of uncon-sented-to expenses. We disagree, but to provide some context, we first set out the general principles governing the distinction between an insurer’s duty to defend and its duty to indemnify its insured for damages for which the insured is held liable. B. Florida Standards Governing the Duty to Defend versus the Duty to Indemnify an Insured An insurance policy typically requires an insurer not only to indemnify its insured against any damages award based on a claim covered by the policy but also to defend the insured in any action against it to recover these damages. Thus, it is well-settled under Florida law that an insurer’s duty to defend an insured is separate and distinct from the question whether it has a duty to indemnify the latter against the imposition of damages. Mid-Continent Cas.Co., 601 F.3d at 1148 (citations to supporting Florida case authority omitted). An insurer is required to indemnify its insured only for that conduct or occurrence that is covered by the policy. But its duty to defend its insured is broader because an insurer’s duty to defend under Florida law is determined solely by the allegations of the complaint in which the insured has been sued, and if those allegations identify facts within the scope of the policy’s coverage, the insurer must defend. Lime Tree Vill. Cmty. Club Ass’n, Inc. v. State Farm Gen. Ins. Co., 980 F.2d 1402, 1405 (11th Cir. 1993); Trizec Props., Inc. v. Bitmore Constr. Co., Inc., 767 F.2d 810, 811 (11th Cir. 1985). This is so even if it is uncertain whether coverage of the claim exists under the policy. Mid-Continent Cas. Co., 601 F.3d at 1149. In short, an insurer may" } ]

[ { "docid": "20628136", "title": "", "text": "(citations omitted). That is, interpretation of a contract is governed by the law of the jurisdiction where the contract was executed. See id. at 1091 n. 1. The parties do not dispute that Florida law applies to the interpretation of the insurance contract at issue, as the policy was issued and delivered to 1108, a Florida company, in Florida. B. Count I: Applicability of the Pollution Exclusion Clause 1. The Duty to Defend Nova argues that it is entitled to summary judgment declaring that it has no duty to defend or indemnify the defendants in the underlying suit. The duty to defend is broader than the duty to indemnify, and thus, where the insurer has no duty to defend, it necessarily has no duty to indemnify. Fun Spree Vacations, Inc. v. Orion Ins., 659 So.2d 419, 421 (Fla. 3d DCA 1995); Fed. Ins. v. Applestein, 377 So.2d 229, 231 (Fla. 3d DCA 1979). Because I find that Nova has no duty to defend 1108 or Mr. Waserstein, it has no duty to indemnify them either. In discussing when the duty to defend arises under Florida law, the Eleventh Circuit has stated: The duty to defend depends solely on the facts and legal theories alleged in the pleadings and claims against the insured. The duty arises when the relevant pleadings allege facts that fairly and potentially bring the suit within policy coverage. The actual facts of the situation are not pertinent. Thus, the duty to defend is broader than the duty to indemnify in the sense that the insurer must defend even if facts alleged are actually untrue or legal theories unsound. If an examination of the allegations of the complaint leaves any doubt regarding the insurer’s duty to defend, the issue is resolved in favor of the insured. Lawyers Title Ins. Corp. v. JDC (America) Corp., 52 F.3d 1575, 1580 (11th Cir.1995) (citations and quotation marks omitted). I must therefore determine if the underlying complaints allege facts and legal theories that are covered under the policy. Where a complaint alleges multiple grounds for liability, with at least one claim being" }, { "docid": "23231443", "title": "", "text": "587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The moving party need not support its motion with evidence disproving the non-moving party’s claim, but must only “ ‘show[ ]’—that is, point[ ] out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The pivotal question is whether the party bearing the burden of proof has presented a jury question as to each element of its case. Celo-tex, 477 U.S. at 322, 106 S.Ct. at 2552. The plaintiff must present more than a mere scintilla of evidence in support of his position; the plaintiff must present “evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). “The ‘mere possibility’ of a factual dispute is not enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992) (quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir.1986)). Both parties agree that we apply Michigan law in this diversity action. The Michigan Supreme Court has held that exclusion clauses in insurance policies are to be strictly construed against the insurer and that ambiguous contract provisions also must be construed against the insurer and in favor of the insured. Farm Bureau Mutual Ins., Co. v. Stark, 437 Mich. 175, 468 N.W.2d 498, 501 (1991). Furthermore the duty to defend is broader than the duty to indemnify. Stockdale v. Jamison, 416 Mich. 217, 330 N.W.2d 389 (1982). In fact, the insurer must defend a lawsuit even if there are theories of liability that the policy does not cover, if there are theories of recovery that fall within the policy’s scope. Dochod v. Central Mutual Ins. Co., 81 Mich.App. 63, 264 N.W.2d 122 (1978). Ill Appellees argue, and the district court held, that the CGL policy’s pollution exclusion clause precludes coverage for the contamination of the groundwater as “property damage.” Harrow claimed in the district court, as it does here, that these claims" }, { "docid": "6968427", "title": "", "text": "is well-settled law in New Hampshire that an insurer’s obligation to defend its insured is determined by whether the cause of action against the insured alleges sufficient facts in the pleadings to bring it within the express terms of the policy, even though the suit may eventually be found to be without merit.” United States Fidelity & Guaranty Co., Inc. v. Johnson Shoes, Inc., 123 N.H. 148, 151-52, 461 A.2d 85, 87 (1983) (citing Hersey v. Maryland Casualty Co., 102 N.H. 541, 542-43, 162 A.2d 160, 162 (1960)). If some of the claims against the insured fall within the terms of coverage, and some without, the insured must still defend the entire claim (at least until it is apparent that no recovery under the covered theory can be had) but need only indemnify for liability actually covered. See, e.g., Western Cas. & Sur. v. Intern. Spas of Ariz., 130 Ariz. 76, 79-80, 634 P.2d 3, 6-7 (App.1981); Rimar v. Continental Cas. Co., 50 A.D.2d 169, 376 N.Y.S.2d 309, 312-13 (Ct.App.1975); John Alan Appleman, 7C Insurance Law and Practice, § 4684.01 at 102-07 (Berdal ed. 1979); 41 A.L.R.2d 434 (1980 Supp.). Therefore, the appellees are obligated to defend the entire claim brought by the Meanens, but eventually need only indemnify (under the bodily injury and property damage coverage) for bodily injury and property damage arising from the plant's alleged excessive noise and light. II. After arguing that light and noise do not come within the policy definition of the term “pollutant,” the City claims the entire definition of the term “pollutant” is ambiguous, and should be construed in its favor to provide coverage of liability for all damages alleged by the Meanens, not just for damages caused by excessive light and noise. The City asserts that “[t]he wording of the exclusion is so broad and vague that its literal reading could result in unreasonably excluding coverage for every conceivable incident connected with any plant dealing with pollutants.” Just because the parties dispute the scope of a policy’s coverage does not mean it is ambiguous; the meaning of the language must be" }, { "docid": "8196980", "title": "", "text": "insured. See Walk, 852 A.2d at 106-07 (“If there is any doubt as to whether there is a duty to defend, it is resolved in favor of the insured”). The parties do not dispute that the CGL policy’s affirmative insuring provisions afford coverage in specified circumstances for tort liability assumed in a contract. The policy issued by Harleysville to Cowan insures Cowan’s contractual liability insofar as Cowan assume [d] the tort liability of another party to pay for “bodily injury” or “propex*ty damage” to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. The tort liability alleged in the underlying complaint filed by Shaffer against Linens N Things was Linens N Things’ negligence in failing to remove snow and ice from the mud lot, and the contract assuming this tort liability was the Truckload Transportation Agreement between Linens N Things and Cowan, in which Cowan agreed to indemnify Linens N Things for all claims “resulting from or arising out of’ injury to persons “caused in whole or in part by [Cowan’s] performance of the transportation agreement.” Even though Harleysville agrees that the CGL policy provides Cowan coverage for certain tort liability that Cowan assumed by contract, it argues that the contractual coverage does not insure Cowan’s indemnification of liability to an employee of Cowan. In addition, Harleysville contends that three policy exclusions apply to deny Cowan coverage in this case: (1) the workers’ compensation exclusion; (2) the employer’s liability exclusion; and (3) the auto exclusion. We address Harleysville’s points seriatim. Ill First, Harleysville contends that its policy's contractual coverage does not extend to Cowan’s agreement to indemnify Linens N Things because Linens N Things’ liability arose from the claim of Shaffer, who was Cowan’s employee and therefore not a “third person or organization” whose claim was covered by the contractual coverage provision. We conclude, however, that Harleysville’s contention rests on a misconstruction of who a “third person” is. Under the Truckload Transportation Agreement between Cowan and Linens N Things, Cowan agreed to indemnify Linens N" }, { "docid": "8816101", "title": "", "text": "to the performance of the Work, including, without limitation, all claims, losses and expenses arising out of or relating to injuries to [Canatal]'s employees, and the employees of his subcontractors and suppliers, while on or about the Site whether or not same is caused in part or in whole by a party indemnified hereunder.... The indemnification obligation of [Canatal] under this Subsection 3 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for [Canatal] under Worker's Compensation Acts, disability benefit acts or other employee benefit acts and [Canatal] waives any defenses raised by statutory employer immunity under such acts.” (Id. at PagelD # 13.) . Williams claimed and collected workers’ compensation from CCS in Vermont based on the same injury for which he is seeking compensation in the underlying action. . Canatal moved for summary judgment arguing that Vermont Workers' Compensation law applied to Williams’ claims. In its motion, Canatal claimed that under Vermont law, Pro Con is Williams' statutory employer and immune from suit, and that because Pro Con's claims against Canatal are based on indemnity, no claims would remain against Canatal in the underlying action. . The parties agree that Maine substantive law applies to the issues in this case. Under Maine law, “an insurer’s duty to defend is decided by comparing the allegations in the underlying complaint with the provisions of the insurance policy to determine whether the complaint shows a possibility that the liability claim falls within the insurance coverage.” Wright-Ryan Constr., Inc. v. AIG Commercial Ins. Co., Civ. No. 08-414-P-H, 2009 WL 4508443, at *4 n. 3 (D.Me. Nov. 27, 2009) (citing Gibson v. Farm Family Mut. Ins. Co., 673 A.2d 1350, 1352 (Me.1996)). It is a question of law as to whether an insurer owes its insured a duty to defend. Bucci v. Essex Ins. Co., 393 F.3d 285, 290 (1st Cir.2005) (quoting Elliott v. Hanover Ins. Co., 711 A.2d 1310, 1312 (Me.1998)). . Indeed, as Defendant points out, Article 1.3 of the Canatal/CCS subcontract specifically provides that the subcontract" }, { "docid": "23089312", "title": "", "text": "This was first-party insurance provided by Tokio Marine, and the policy required the insurer to indemnify the insured for loss to the property of the construction project. Paragraph 11.3.6 of the General Conditions of the Contract for Construction added a standard “waiver of subrogation” provision, which provided that Seawinds and Kajima waived all claims against each other and, inter alia, against all subcontractors “to the extent covered by insurance obtained pursuant to this Paragraph 11.3.” Article 9.2 of the contract between Kajima and South Florida includes the subcontractor in the waiver of subrogation. A waiver of subrogation is useful in such projects because it avoids disruption and disputes among the parties to the project. It thus eliminates the need for lawsuits, and yet protects the contracting parties from loss by bringing all property damage under the all risks builder’s property insurance. In contrast, the insurance provided by defendants was liability insurance. This insurance covered damage to third parties arising from the construction project, such as injuries to passersby or damage to adjoining property. These risks were not covered by the first-party insurance, which covered only the project itself. Article 16.7 of the contract between Kajima and South Florida thus required South Florida to obtain liability insurance, and to “furnish the Contractor with a certificate of insurance showing the above coverage and adding the Contractor as an additional insured.” South Florida obtained this insurance, with Employers insuring liability up to the predetermined limits, and Wausau insuring the excess. New York law recognizes the distinction between property and liability insurance in circumstances such as those presented here. In Trump-Equitable Fifth Avenue Co. v. H.R.H. Construction Corp., 106 A.D.2d 242, 485 N.Y.S.2d 65 (1st Dept.1985), aff'd, mem., 66 N.Y.2d 779, 488 N.E.2d 115, 497 N.Y.S.2d 369 (1985), which involved contractual provisions virtually identical to those involved here, the court held that fire damage to a construction project allegedly caused by the negligence of a subcontractor was covered by a builder’s all risks insurance policy, and that the property insurer could not recover in subrogation from the subcontractor’s liability insurer for damage to the" }, { "docid": "22535456", "title": "", "text": "police. Based on the dispute between Ar-pin and Ruiz, an inference is raised that Ruiz summoned the police to confine Ar-pin. Arpin therefore sufficiently states a claim against Ruiz for false imprisonment. Arpin’s complaint also sufficiently states a claim for false imprisonment against the SCVTA under the doctrine of respondeat superior. See Robinson v. Solano County, 218 F.3d 1030, 1037-38 (9th Cir.2000) (recognizing that California public employers can be liable under the doctrine of respondeat superior for employees’ acts of false imprisonment); Scannell v. County of Riverside, 152 Cal.App.3d 596, 605, 199 Cal.Rptr. 644, 648 (1984) (noting that a California public employer is responsible for the tort of false imprisonment based on the conduct of an employee acting within the course and scope of his employment). Arpin’s complaint alleges that Ruiz was working as a bus driver for the SCVTA at the time Arpin was placed under false arrest, indicating that Ruiz was in the course of his employment. Ruiz was also at least in part motivated to serve the SCVTA, as Arpin’s complaint alleges that the false arrest resulted from Arpin and Ruiz’s dispute as to whether Arpin had proper identification to ride the bus as a disabled senior. Allegations in Arpin’s complaint that “each Defendant was acting as the agent of each other,” and that “Defendants,” which includes the SCVTA, falsely arrested and imprisoned Arpin are also consistent with a theory that the SCVTA is vicariously liable under a theory of respondeat superior. Even though Arpin did not specifically state she was basing her claim against the SCVTA on the doctrine of “re-spondeat superior,” under the federal liberal pleading standards, Arpin’s allegations establish a sufficient basis to assert a claim that the SCVTA is liable under that doctrine. See Pelletier v. Fed. Home Bank of San Francisco, 968 F.2d 865, 876-77 (9th Cir.1992) (noting that under California law, respondeat superior liability does not depend on whether employee’s act was authorized but whether the act was committed in the course of carrying out the employer’s business, with at least a partial intent to serve the employer); see also AlliedSignal," }, { "docid": "20005473", "title": "", "text": "the insurance policy at issue. Under Southeast’s insurance policy, Transportation had the duty to indemnify and defend claims that fell under an “advertising injury” provision covering an “injury arising out of ... [o]ral or written publication of material that violates a person’s right of privacy.” (Record Excerpts Tab 1 (Ex. C), Business Liability Coverage Form (“Policy”) at 10.) Penzer alleged that the claims against Southeast were covered by this provision because the transmission of an unsolicited facsimile advertisement constituted the publication of written material. Transportation filed a counterclaim seeking a declaration that Southeast was not covered under the provision, because it was unambiguous and did not encompass Penzer’s claims, or in the alternative, because coverage was not required due to several policy exclusions. The district court granted a stay of proceedings pending the disposition of the appeal in Hooters of Augusta, Inc. v. American Global Insurance Co., a case involving coverage under the same policy provision for an identical TCPA violation. In a non-precedential decision, and applying Georgia law, we held that the insurer was obligated to defend and indemnify its insured against TCPA claims. Hooters, 157 Fed.Appx. 201, 210 (11th Cir.2005). Following the decision, the district court lifted the stay, and both Penzer and Transportation filed cross-motions for partial summary judgment on the issue of coverage under the policy. The district court granted summary judgment in favor of Transportation, finding Hooters unpersuasive and instead finding that the holding of State Farm Fire & Casualty Co. v. Compupay, Inc., 654 So.2d 944 (Fla.Dist.Ct. App.1995), set forth the applicable Florida law. Penzer, 509 F.Supp.2d at 1284-86. Specifically, the district court determined that the phrase “ ‘oral or written publication of material that violates a person’s right of privacy’ is unambiguous, and that advertising injury coverage under this provision exists only when the content of the material published violates a person’s right to privacy.” Id. at 1286 (emphasis added). Penzer timely appealed. II. DISCUSSION A. General Florida Insurance Law Principles The parties agree that Florida law governs this case, but the Supreme Court of Florida has not construed the particular policy language" }, { "docid": "3802859", "title": "", "text": "9 F.3d 913, 918 (11th Cir.1993). A mere scintilla of evidence in support of the non-moving party’s position will not suffice to demonstrate a genuine issue of material fact and thereby preclude summary judgment. See Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). If the adverse party fails to show a genuine issue of material fact, summary judgment, if appropriate, may be entered against the non-moving party. B. Establishing Loss Pursuant to SFIP Requirements In the event of a flood loss, an insured whose property is covered by an SFIP must satisfy certain requirements to be compensated for the loss. 44 C.F.R. Pt. 61, App. A(l), Art. VII(J) (2003) (“Article VII(J)” or “Art. VII(J)”); see Gowland v. Aetna, 143 F.3d 951, 953-54 (5th Cir. 1998). First, the insured must give the insurer “prompt written notice” of his flood loss. Art. VII(J)(1). The insured must then “separate the damaged and undamaged property” as soon as reasonably possible and “[p]repare an inventory of damaged property showing the quantity, description, actual cash value, and amount of loss.” Art. VII(J) (2) and (3). In preparing this inventory, the insured must “[ajttach all bills, receipts, and related documents.” Art. VII(J) (3). Insureds are also required to send the insurer a proof of loss within sixty days of the flood loss. Art. VH(J)(4). The proof of loss is the insured’s “statement of the amount [he is] claiming under the policy.” Id. It must be signed and sworn to by the insured and must furnish the insurer with certain information. Specifically, Article VII(J)(4) requires the insured to: 4. Within 60 days after the loss, send us a proof of loss, which is your statement of the amount you are claiming under the policy signed and sworn to by you, and which furnishes us with the following information: a. The date and time of loss; b. A brief explanation of how the loss happened; c. Your interest (for example, “owner”) and the interest, if any, of others in the damaged property; d. Details of any other insurance that may cover the loss; e. Changes in title or" }, { "docid": "5453767", "title": "", "text": "plenary review over a District Court’s interpretation of state law, see Chemical Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 89 F.3d 976, 983 (3d Cir.1996), as well as its conclusion as to the legal operation of an insurance policy. New Castle County v. Hartford Accident & Indem. Co., 933 F.2d 1162, 1183 (3d Cir.1991). The District Court determined, and the parties do not dispute, that Pennsylvania law applies to this case. As such, we must apply the substantive law of Pennsylvania. See Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 613 (3d Cir.1992). III. Discussion We will first address Jacobs’ requested declarations against NPS Energy. For purposes of this appeal, Jacobs claims that NPS Energy has an interim duty to de fend it in the Texas declaratory judgment action with Pennzoil, and that NPS Energy has an obligation to list it as an additional insured on the National Union Insurance Policy. Then, we will consider Jacobs’ claim that National Union has an obligation to indemnify and defend it in the Texas action. A. NPS Energy’s Duty to Defend Jacobs’ demand for NPS Energy to defend it in the Texas declaratory judgment action against Pennzoil is premised on indemnity provisions found in sections 9A and 9C of its subcontract with NPS Energy. Sections 9A and 9C state in pertinent part: A. To the fullest extent permitted by law with respect to the work covered by the Subcontract, Subcontractor agrees to defend, indemnify, save and hold harmless, the Owner and Contractor, and all their affiliates, parents, subsidiaries, divisions, directors, officers, agents, heirs, assigns, successors-in-interest, representatives and employees (“Indemnitees”), from and against the following: All claims, liabilities, demands, damages, losses, costs and expenses, including reasonable attorneys’ fees, awards, fines and judgments, in law or in equity, of every kind and nature whatsoever (“Claims”), arising by reason of personal injury, the death of or bodily injury to persons (including employees of the subcontractor), design defects (if design originated from subcontractor), damages or destruction of property or the loss of use thereof, arising out of or alleged to have arisen out" }, { "docid": "8196983", "title": "", "text": "under the indemnity provisions of their “Truckload Transportation Agreement.” This is just the circumstance under which the contractual coverage provides insurance to Cowan. IV Harleysville next contends that the policy’s workers’ compensation exclusion applies to deny coverage in this case because Shaffer was an employee who received workers’ compensation by reason of his employment with Cowan. The CGL policy excludes coverage for “[a]ny obligation of the insured [Cowan] under a workers’ compensation, disability benefits, or unemployment compensation law or any similar law.” Harleysville contends that this provision applies to bar coverage, reasoning that “Shaffer’s compensation from Cowan related to an on-the-job injury, as contemplated by the policy, [and] is limited to that which he would receive vis-á-vis the State’s statutory workers’ compensation scheme.” It argues that permitting Shaffer to recover through his employer’s insurance would enable him to obtain du- plicative recovery' — one from workers’ compensation and one from Harleysville. This contention, however, ignores the fact that Cowan was not seeking coverage from Harleysville for a “workers’ compensation, disability benefits, or unemployment compensation” claim made against it. Rather, it was seeking coverage for a contractual obligation in which it undertook to indemnify Linens N Things. And Linens N Things was not seeking to pass on to Cowan any workers’ compensation liability. It was seeking indemnification from Co-wan for its premises liability. In short, no obligation for workers’ compensation was involved directly or indirectly, and for that reason, the exclusion is inapplicable. V Harleysville also contends that its policy’s employer’s liability exclusion applies to deny Cowan coverage. The CGL policy excludes coverage for “bodily injury” to an employee that “arisfes] out of and in the course of employment by the insured,” and the exclusion applies “(1) whether the insured may be hable as an employer or in any other capacity; and (2) to any obligation to share damages with or repay someone else who must pay damages because of the injury.” Because Shaffer was employed by Cowan at the time of his accident, Harleysville contends that this exclusion applies. This argument might be persuasive but for the fact that the" }, { "docid": "3802858", "title": "", "text": "that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). A dispute about a material fact is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. A fact is “material” if it may affect the outcome of the case under the applicable substantive law. See id. When a motion for summary judgment is made and properly supported by affidavits, depositions, or answers to interrogatories, the adverse party may not rest on the mere allegations or denials of the moving party’s pleadings. Instead, the non-moving party must respond by affidavits or otherwise and present specific allegations showing that there is a genuine issue of disputed fact for trial. Fed.R.Civ.P. 56(e). When assessing the sufficiency of the evidence, the court must view all the evidence, and all factual inferences reasonably drawn therefrom, in the light most favorable to the nonmoving party. See Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 918 (11th Cir.1993). A mere scintilla of evidence in support of the non-moving party’s position will not suffice to demonstrate a genuine issue of material fact and thereby preclude summary judgment. See Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). If the adverse party fails to show a genuine issue of material fact, summary judgment, if appropriate, may be entered against the non-moving party. B. Establishing Loss Pursuant to SFIP Requirements In the event of a flood loss, an insured whose property is covered by an SFIP must satisfy certain requirements to be compensated for the loss. 44 C.F.R. Pt. 61, App. A(l), Art. VII(J) (2003) (“Article VII(J)” or “Art. VII(J)”); see Gowland v. Aetna, 143 F.3d 951, 953-54 (5th Cir. 1998). First, the insured must give the insurer “prompt written notice” of his flood loss. Art. VII(J)(1). The insured must then “separate the damaged and undamaged property” as soon as reasonably possible and “[p]repare an inventory of damaged property showing the quantity, description, actual cash value, and amount of loss.”" }, { "docid": "14179534", "title": "", "text": "106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Wingate v. Gage Cnty. Sch. Dist., No. 34, 528 F.3d 1074, 1078-79 (8th Cir.2008). Where, as here, the Court confronts cross-motions for summary judgment, this approach is only slightly modified. When considering FMM’s Motion, the Court views the record in the light most favorable to Scottsdale, and, when considering Scottsdale’s Motion, the Court views the record in the light most favorable to FMM. “Either way, summary judgment is proper if the record demonstrates that there is no genuine issue as to any material fact.” Seaworth v. Messerli, Civ. No. 09-3437, 2010 WL 3613821, at *3 (D.Minn. Sept. 7, 2010) (Kyle, J.), aff'd, 414 Fed.Appx. 882 (8th Cir.2011). ANALYSIS I. Duty to defend/indemnify In Minnesota , an insurer has both a duty to defend and a duty to indemnify its insured. Meadowbrook, Inc. v. Tower Ins. Co., Inc., 559 N.W.2d 411, 415 (Minn.1997). The duty to defend is broader than the duty to indemnify. Id. An insurer must defend its insured against any cause of action arguably within the scope of the policy. Id To determine whether this obligation has been triggered, a court compares the allegations in the underlying complaint with the relevant policy language. Prahm v. Rupp Constr. Co., 277 N.W.2d 389, 390 (Minn.1979). The insurer bears the burden of showing all claims are clearly outside the policy’s coverage to avoid defending the insured. Id. By contrast, an insurer must indemnify its insured only “when it is established that the insured’s liability ... is within the scope of the insurance policy.” Remodeling Dimensions, Inc. v. Integrity Mut. Ins. Co., 819 N.W.2d 602, 616 (Minn.2012). “The insured bears the initial burden of proving prima facie coverage of a third-party claim under a liability insurance policy.” Id. Again, the language of the particular insurance policy controls. Id. II. Notice Here, Scottsdale argues that FMM was entitled to neither defense nor indemnification because FMM failed to timely notify it of the Spinner Litigation. As set forth above, the Policy required FMM, “as a condition precedent to coverage,” to notify Scottsdale it had been sued “as" }, { "docid": "6231762", "title": "", "text": "refusal to reimburse EmbroidMe for pretender defense fees the company chose to incur. We agree that Travelers relied on an exclusion, not a coverage defense, in its refusal to pay EmbroidMe’s pre-tender legal expenses, and therefore the CAS does not control. Although there is no Florida case squarely addressing the facts of this case, we are guided by the interpretation that Florida law has given to these two terms in other disputes involving their definition. Based on that review, we conclude that the policy here excludes from coverage legal expenses incurred by an insured without the approval of the insurer. Travelers’ reliance on this policy provision constitutes the assertion of a policy exclusion, not a defense to coverage. Further, Em-broidMe’s contrary position tends to conflate the concepts of an insurer’s duty to defend and its duty to timely convey a coverage defense. A. The Terms of the Insurance Policy Precluded EmbroidMe From Reimbursement of Attorney’s Fees That It Incurred Without First Obtaining Travelers’ Consent EmbroidMe argues that it is entitled to reimbursement of the almost half million dollars in attorney’s fees that it incurred prior to ever advising Travelers that it wanted Travelers to defend it in the litigation and to indemnify it for any damages imposed on it as a result of the covered claims. The clear language of the policy, however, contradicts EmbroidMe’s assertion that it is entitled to reimbursement of these pre-tender legal fees. The commercial liability policy entered into by Travelers and EmbroidMe is fairly straight-forward. It provides, subject to specified monetary caps, that Travelers will pay those sums that EmbroidMe becomes legally obligated to pay as damages because of bodily injury, property damage, and personal and advertising injuries, including web-site injuries. In short, Travelers promises to indemnify EmbroidMe for damages for which it becomes liable. Further, Travelers has a “right and duty to defend” the company in suits seeking damages that are covered by the policy. Beyond imposing on Travelers a duty to indemnify EmbroidMe against damages assessed against it, the policy also addresses responsibility for the payment of any expenses arising from defense of" }, { "docid": "20005474", "title": "", "text": "obligated to defend and indemnify its insured against TCPA claims. Hooters, 157 Fed.Appx. 201, 210 (11th Cir.2005). Following the decision, the district court lifted the stay, and both Penzer and Transportation filed cross-motions for partial summary judgment on the issue of coverage under the policy. The district court granted summary judgment in favor of Transportation, finding Hooters unpersuasive and instead finding that the holding of State Farm Fire & Casualty Co. v. Compupay, Inc., 654 So.2d 944 (Fla.Dist.Ct. App.1995), set forth the applicable Florida law. Penzer, 509 F.Supp.2d at 1284-86. Specifically, the district court determined that the phrase “ ‘oral or written publication of material that violates a person’s right of privacy’ is unambiguous, and that advertising injury coverage under this provision exists only when the content of the material published violates a person’s right to privacy.” Id. at 1286 (emphasis added). Penzer timely appealed. II. DISCUSSION A. General Florida Insurance Law Principles The parties agree that Florida law governs this case, but the Supreme Court of Florida has not construed the particular policy language at issue. Generally, under Florida law, “in construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.” Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000); see also Fla. Stat. § 627.419(1) (“Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy.”). Policy terms are given their plain and ordinary meaning and read in light of the skill and experience of ordinary people. Bethel v. Sec. Nat’l Ins. Co., 949 So.2d 219, 222 (Fla.Dist. Ct.App.2006); see also Vencor Hosps., Inc. v. Blue Cross Blue Shield of R.I., 284 F.3d 1174, 1180-81 (11th Cir.2002). Undefined terms and complex terms requiring analysis are “not automatically rendered ambiguous,” Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003), however, “[i]f the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the [other] limiting coverage, the insurance policy is considered ambiguous.” Auto-Owners, 756 So.2d at 34." }, { "docid": "22822913", "title": "", "text": "doctrine. Indemnity Insurance Company v. California Stevedore & Ballast Company, 9th Cir. 1962, 307 F.2d 513, upon which Yo-Ro relies, is not apposite, since the policy language in that case was significantly different from the language in question in this case. The applicability of Larson Construction Company v. Oregon Automobile Insurance Company, 9th Cir. 1971, 450 F.2d 1193, is doubtful because only brief fragments of the insuring and exclusionary language are quoted in that opinion. We are, of course, aware of the rule that ambiguities in an insurance policy must be construed against the insurer, but we can discover no ambiguities or inconsistencies in the Travelers policy as applied to the facts of this case. The plain language of the policy shows that it does not cover liability originating in injuries to the insured’s employees. Accordingly, we must reverse that portion of the district court’s judgment holding that the Travelers policy covered Yo-Ro’s obligation to indemnify Jahncke. ILL Coverage Under the Policy of Home Indemnity Company In its “Standard Workmen’s Compensation and Employers’ Liability Policy” Home agreed: 1. Coverage A — Workmen’s Compensation : To pay promptly when due all compensation and other benefits required of the insured by the workmen’s compensation law. 2. Coverage B — Employers’ Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease, including death at any time resulting therefrom, sustained . by any employee of the insured arising out of and in the course of his employment by the insured The policy limit of liability is $25,000. As was true of the Travelers policy, the insuring language in the Home policy is broad enough to cover both direct liability to the injury victim and indirect liability under the Ryan doctrine on account of bodily injury. This breadth of coverage is made explicit in condition 9 of the policy: The words “damages because of bodily injury by accident or disease, including death at any time resulting therefrom,” in coverage B include damages for care and loss" }, { "docid": "15698587", "title": "", "text": "Assurance Co. v. Hartford Ins. Co., 29 Colo.App. 548, 488 P.2d 206 (1971) (same). In cases involving employee exclusions, this interpretation of separation of insureds clauses is logical because it avoids duplication with workers compensation schemes. Consider, for example, the facts of Erdo, in which a subcontractor’s employee sued the general contractor. In that ease, the New Jersey Superior Court held that the employee exclusion was inapplicable to situations where there was no employer-employee relationship between the person bringing suit and the party seeking coverage. Therefore, the employee exclusion did not apply when an employee of the subcontractor sued the general contractor. If, in contrast, an employee of the general contractor had sued the general contractor, the employee exclusion would have applied, and the CGL insurer would not have had to indemnify the general contractor. This makes sense because the employee’s claim would be covered by a typical workers compensation scheme, which provides an exclusive remedy in a suit against an employer. The suit by the employee of the subcontractor, however, falls outside of the workers compensation system. Firms need to protect themselves from such liabilities, which is one of the reasons they purchase commercial general liability policies. Cf. Float-Away Door Co. v. Continental Casualty Co., 372 F.2d 701, 708 (5th Cir.), cert. denied, 389 U.S. 823, 88 S.Ct. 58, 19 L.Ed.2d 76 (1967), (stating that “the primary objective of [employee exclusions] is to avoid duplication of coverage with respect to compensation insurance”); Phoenix Assurance Co., 488 P.2d at 208. This insight is significant since the bulk of the cases which elaborate on the impact of severability clauses on ex- elusions do so in the context of employee exclusions contained in either automobile or commercial general liability policies. Taken together, Erdo, Maryland Casualty, and other similar cases stand for three propositions. First, a separation of insureds clause may alter the meaning of exclusions contained within a policy. Second, the impact of the clause depends upon a pedantic reading of the exact wording of the exclusion as applied to each separate insured. See, e.g., American Nat'l Fire Ins. Co. v. Estate" }, { "docid": "5026238", "title": "", "text": "had hired counsel for ACI. C&F did not consult with ACI concerning its choice of counsel. Nor did C&F reimburse ACI for the attorney’s fees and costs it had incurred prior to C&F’s retention of counsel. On August 21, 2013, ACI filed this lawsuit against C&F. In Count I, ACI sought a declaration that C&F owed it a duty to indemnify and a duty to defend and to cover the claims asserted against ACI by the condominium in the Chapter 558 notices; In Count II, ACI asserted a breach of 'contract claim based on C&F’s initial refusal to defend ACI in the Chapter 558 process. . The parties filed competipg motions for summary judgment. As on appeal, the determinative issue was whethfer the Chapter 558 process constitutes a “suit” under the CGL policies’ language. The district court, applying Florida law, found the policies’ language unambiguous and determined the Chapter 558 process was not a “suit.” This appeal by ACI followed. Ill We review a district court’s grant or denial of a motion for summary judgment de novo, and apply the same legal standards that governed the district court. See Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1293 (11th Cir. 2013). Summary judgment is properly granted when the movant shows there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. See id. at 1293-94; Fed. R. Civ. P. 56(a). Contract interpretation and statutory construction present questions of law subject to plenary review. See Hegel v. First Liberty Ins. Corp., 778 F.3d 1214, 1219 (11th Cir. 2015). Federal jurisdiction in this case is based on diversity, and the parties agree that Florida law controls. See State Farm Fire and Cas. Co. v. Steinberg, 393 F.3d 1226, 1230 (11th Cir. 2004); State Farm Mut. Auto. Ins. Co. v. Roach, 945 So.2d 1160, 1163 (Fla. 2006). Under Florida law, we look at an insurance policy “as a whole and give every provision its full meaning and operative effect.” Hyman v. Nationwide Mut. Fire Ins. Co., 304 F.3d" }, { "docid": "23089313", "title": "", "text": "were not covered by the first-party insurance, which covered only the project itself. Article 16.7 of the contract between Kajima and South Florida thus required South Florida to obtain liability insurance, and to “furnish the Contractor with a certificate of insurance showing the above coverage and adding the Contractor as an additional insured.” South Florida obtained this insurance, with Employers insuring liability up to the predetermined limits, and Wausau insuring the excess. New York law recognizes the distinction between property and liability insurance in circumstances such as those presented here. In Trump-Equitable Fifth Avenue Co. v. H.R.H. Construction Corp., 106 A.D.2d 242, 485 N.Y.S.2d 65 (1st Dept.1985), aff'd, mem., 66 N.Y.2d 779, 488 N.E.2d 115, 497 N.Y.S.2d 369 (1985), which involved contractual provisions virtually identical to those involved here, the court held that fire damage to a construction project allegedly caused by the negligence of a subcontractor was covered by a builder’s all risks insurance policy, and that the property insurer could not recover in subrogation from the subcontractor’s liability insurer for damage to the construction project. In that case, a clause in the contract between the owner and the contractor stated that the contractor would hold the owner harmless “ ‘against all liability, claims, loss, costs, damages and expenses ... on account of injury or death to any person ... or damage to property ... ’ not caused by the sole negligence of the owner.” Id. 106 A.D.2d at 244, 485 N.Y.S.2d at 67. Similarly, in the contract between Kajima and South Florida, Article 16.6 pre vides that South Florida shall indemnify and hold Kajima harmless “from and against all claims, damages, liability or expenses arising out of or in connection with the acts or omissions of the Subcontractor, its officers, employees, agents or subcontractors.” As in Trump-Equitable, this promise extends only as far as the scope of the liability insurance. To rule otherwise would ignore the purpose of a waiver of subrogation provision, which “in effect simply require[s] one of the parties to the contract to provide [property] insurance for all of the parties.” Board of Education v." }, { "docid": "22822914", "title": "", "text": "Home agreed: 1. Coverage A — Workmen’s Compensation : To pay promptly when due all compensation and other benefits required of the insured by the workmen’s compensation law. 2. Coverage B — Employers’ Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease, including death at any time resulting therefrom, sustained . by any employee of the insured arising out of and in the course of his employment by the insured The policy limit of liability is $25,000. As was true of the Travelers policy, the insuring language in the Home policy is broad enough to cover both direct liability to the injury victim and indirect liability under the Ryan doctrine on account of bodily injury. This breadth of coverage is made explicit in condition 9 of the policy: The words “damages because of bodily injury by accident or disease, including death at any time resulting therefrom,” in coverage B include damages for care and loss of services and damages for which the insured is liable by reason of suits or claims brought against the insured by others to recover the damages obtained from such others because of such bodily injury sustained by employees of the insured arising out of and in the course of their employment. Consistently, exclusion (c), relating to liability assumed by the insured under a contract, expressly exempts from its scope liability to indemnify under the Ryan doctrine. Unlike the Travelers policy, the Home policy is aimed specifically at liability resulting from employees’ injuries. In denying coverage, Home relies on the “Exclusion of Maritime Liability Endorsement,” which reads: It is agreed that the policy does not apply to injury, including death resulting therefrom, sustained by a master or a member of the crew of any vessel or by any person in the course of an employment subject to the United States Longshoremen’s and Harbor Workers’ Compensation Act, U.S.Code (1946) Title 33, Sections 901-949. Home argues that this exclusion excludes both direct liability to employees covered by the" } ]

[ { "docid": "23146923", "title": "", "text": "two the number of witnesses he could call to testify, and (3) the principles of res judicata should apply to the question of whether he had suffered past persecution, since he had been admitted to the United States as a refugee in 1996. The BIA dismissed his appeal, holding that Mr. Romanishyn had asserted no grounds for relief. On April 5, 2005, Mr. Romanishyn challenged his final order of removal by filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the District Court for the Middle District of Pennsylvania. The District Court granted a stay of removal pending decision on the habeas petition. On June 21, 2005, the District Court transferred the habeas petition to this court pursuant to Section 106(c) of the REAL ID Act. See Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir.2005) (noting that pursuant to Section 106(c), “all habeas petitions brought by aliens that were pending in the district courts on the date the REAL ID Act became effective (May 11, 2005) are to be converted to petitions for review and transferred to the appropriate court of appeals”). In his converted petition for review, Mr. Romanishyn renews the arguments that he may not be removed because he maintains his protective refugee status, and that the IJ violated his due process rights by limiting to two the number of witnesses he could call at his hearing. II. A. The BIA exercised jurisdiction pursuant to 8 C.F.R. § 1003.1(b)(3). We exercise jurisdiction over this converted petition for review pursuant to 8 U.S.C. § 1252(a)(1). Our jurisdiction extends only to constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir.2005). Whether an alien who entered the country as a refugee and subsequently acquired LPR status may be placed in removal proceedings even though his refugee status was never terminated under 8 U.S.C. § 1157(c)(4), is a question of law. Whether the IJ violated the requirements of due process when he limited the number of witnesses that Mr. Romanishyn could call at the immigration hearing," } ]

[ { "docid": "16453484", "title": "", "text": "to Appear,” charging him with inadmissibility by virtue of his federal conviction under the Immigration and Nationality Act 8 U.S.C., § 1182(a)(2)(A)(i)(I). On January 21, 2010, Hanif conceded his inadmissibility as charged. Hanif then sought a waiver of inadmissibility under 8 U.S.C. 1182(h) and submitted the corresponding 1-601 Application for Waiver on Ground of Excludability on February 17, 2010, claiming that removal would cause extreme hardship to his wife and children. On January 11, 2011, an IJ denied Han-ifs application, finding him ineligible for a waiver under 8 U.S.C. 1182(h), pursuant to the BIA’s decision in Matter of Koljenovic. Specifically, the IJ noted that “the Board of Immigration Appeals held [in Matter of Koljenovic ] that an alien who entered the United States without inspection and later obtained lawful permanent residence [sic] status through adjustment [of] status has previously been ‘admitted as a lawful permanent resident, and therefore, must satisfy the seven year continuous residence requirement at Section 212(h).’” (Admin. R. 53-54.) On May 27, 2011, the BIA adopted and affirmed the IJ’s order. On June 17, 2011, Hanif petitioned this Court for review of the BIA’s decision. II. Jurisdiction The BIA has jurisdiction to review the IJ’s decision under 8 C.F.R. § 1003.1(b)(3). In general, “courts of appeals ... have no jurisdiction to review [the BIA’s] discretionary and factual determinations presented in petitions for review.” Jarbough v. Att’y Gen., 483 F.3d 184, 188 (3d Cir.2007). However, this Court has jurisdiction, pursuant to 8 U.S.C. § 1252(a)(2)(D), to review the BIA’s final order for constitutional claims and questions of law. See Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006) (“By virtue of § 1252(a)(2)(D), constitutional claims or questions of law raised in a petition for review elude the jurisdiction-stripping provisions of the INA”). Petitioner challenges the BIA’s statutory interpretation of 8 U.S.C. § 1182(h), thus raising a question of law within the meaning of § 1252(a)(2)(D). Accordingly, we can exercise jurisdiction over this petition for review. III. Standard of Review When the BIA issues its own decision on the merits, rather than a summary affirmance, we review its decision," }, { "docid": "6523363", "title": "", "text": "“[a] determination by the Attorney General as to whether the status of any alien should be adjusted under this section is final and shall not be subject to review by any court.” NACARA § 202(f); Centeno v. U.S. Att’y Gen., 441 F.3d 904, 905 (11th Cir.2006); Ortega v. U.S. Att’y Gen., 416 F.3d 1348, 1350 (11th Cir.2005). Accordingly, we lack jurisdiction to review a determination as to whether an applicant’s status should be adjusted under NACARA. Nevertheless, as the Government concedes, we retain jurisdiction to review constitutional claims arising from the denial of relief under NACARA because nothing in § 202(f) expressly precludes it. See Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (“where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear”) (citation omitted). In Alexis v. U.S. Att’y Gen., 431 F.3d 1291 (11th Cir.2005), we held that although an identical jurisdiction-limiting provision in the Haitian Refugee Immigration Fairness Act of 1998, Pub.L. No. 105-277, 112 Stat. 2681, precluded review of the adjustment decision under that statute, we nevertheless retained jurisdiction to review “substantial constitutional challenges” to it. 431 F.3d at 1294-95 (citing Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1338 (11th Cir.2003)). Thus, we have jurisdiction to consider constitutional claims arising under NACARA. We also retain jurisdiction to consider constitutional claims and questions of law under the INA, including those arising from the denial of waivers of inadmissibility. See 8 U.S.C. § 1252(a)(2)(D) (courts retain jurisdiction to review “constitutional claims or questions of law” under INA); Camacho-Salinas v. U.S. Att’y Gen., 460 F.3d 1343, 1347 (11th Cir.2006) (court retains jurisdiction to review constitutional claims and questions of law related to the denial of waiver of inadmissibility). In this petition, Freeh asserts a substantial constitutional challenge: that the refusal to change venue violated his constitutional right to due process, including the right to counsel and the ability to present evidence on his behalf. Freeh also raises a question of law: whether the IJ applied the wrong legal standard in evaluating his application for waivers" }, { "docid": "23502657", "title": "", "text": "8 U.S.C. § 1231(a)(5) is vacated. Although we cannot determine whether Chay is entitled to a grant of asylum relief, we can and do decide that he is entitled to an adjudication of his asylum application— pending now for eighteen years — on its merits. See St. Cyr, 533 U.S. at 307, 121 S.Ct. 2271 (“Traditionally, courts recognized a distinction between eligibility for discretionary relief, on the one hand, and the favorable exercise of discretion, on the other hand.”); see also, e.g., Arevalo, 344 F.3d at 15 (“A right to seek relief is analytically separate and distinct from a right to the relief itself. Consequently, an alien is not precluded from having a vested right in a form of relief merely because the relief itself is ultimately at the discretion of the Executive Branch.” (citations omitted)). III. Chay additionally argues that he has a right to have his eligibility for NA-CARA relief adjudicated on the merits before he may be removed. The government responds that, because DHS determined that Chay did not register for the so-called “ABC benefits” as required to be eligible for “special rule cancellation of removal” under NACARA § 203, see 8 C.F.R. § 1240.61, this court lacks jurisdiction over Chay’s NACARA claim. We agree. IIRIRA expressly precludes federal courts from reviewing the agency’s factual determination that an immigrant is ineligible for ABC benefits or special rule cancellation of removal under NACARA § 203. See, e.g., Lanuza v. Holder, 597 F.3d 970, 971 (9th Cir.2010) (per curiam) (“Section 309(c)(5)(C)(ii) [of IIRIRA] provides that ‘[a] determination by the Attorney General as to whether an alien satisfies the requirements of clause (i) is final and shall not be subject to review by any court.’ Therefore, we lack jurisdiction to determine [petitioner’s] statutory eligibility for NACARA § 203 relief.” (citation omitted)); Molina Jerez, 625 F.3d at 1069 (“Whether [petitioner] registered for ABC benefits in a timely manner is a purely factual issue over which this court lacks jurisdiction.” (citation omitted)). Accordingly, we deny Chay’s petition for review to the extent that he asks us to remand to DHS to reevaluate" }, { "docid": "23272367", "title": "", "text": "Judge (“U”) found all witnesses — Ladislao, Oscar, and Agent Warner — credible. The IJ also found that “[bjoth sides” — the deputy sheriff, Agent Warner, and Petitioners — understood the questions about green cards to mean: “are you here legally or illegally.” The IJ concluded “the initial discussion” between the deputy sheriff and Agent Warner “did not constitute any stop or seizure.” However, the IJ concluded the encounter became a seizure after the deputy sheriff asked Petitioners about their immigration status (i.e., whether they had green cards). The IJ concluded the seizure did not violate the Fourth Amendment because the deputy sheriff had probable cause to believe Petitioners were unlawfully present in the United States. Thus, the IJ denied Petitioners’ motion to suppress, found Petitioners removable as charged, and granted Petitioners’ request for voluntary departure. The BIA affirmed the decision of the IJ and cited Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). The BIA concluded Petitioners were seized only after they admitted they were aliens and failed to provide documents to show they were lawfully present in the United States. Thus, the BIA concluded Petitioners suffered no Fourth Amendment violation, “much less an ‘egregious’ violation.” Petitioners timely filed a petition for review. II. Standard of Review “We review de novo the denial of a motion to suppress.” United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir.2004) (en banc). We also review de novo claims of constitutional violations. Lanuza v. Holder, 597 F.3d 970, 972 (9th Cir.2010). An IJ’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). III. Discussion. The general rule in criminal proceedings is that evidence obtained in violation of a defendant’s Fourth Amendment rights may not be introduced to prove the defendant’s guilt. INS v. Lopez-Mendoza, 468 U.S. 1032, 1040-41, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). We refer to this rule as the exclusionary rule. Id. at 1041, 104 S.Ct. 3479." }, { "docid": "20319120", "title": "", "text": "of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), among other things, to allow “qualified aliens from certain countries placed in [deportation] proceedings before, on, or after April 1, 1997, to apply for ‘special rule’ protection from deportation” based on “the more generous pre-IIRIRA suspension of deportation remedy.” Tanov v. INS, 443 F.3d 195, 199 (2d Cir.2006) (alteration in original) (quoting Simeonov v. Ashcroft, 371 F.3d 532, 536 (9th Cir.2004)). Specifically, NA-CARA amended IIRIRA § 309 by adding a subsection (f) entitled “Special Rule for Cancellation of Removal.” NACARA § 203, 111 Stat. 2160, 2198 (codified at 8 U.S.C. § 1101 note). That subsection provides that the “Attorney General may, under section [8 U.S.C. § 1229b] of [the Immigration and Nationality] Act, cancel removal of ... an alien who is inadmissible or deportable from the United States” if the alien meets certain statutory requirements. Id. These requirements are set forth in the margin. The applicant for special cancellation of removal bears the burden of “establishing] by a preponderance of the evidence that he or she is eligible for ... special rule cancellation of removal and that discretion should be exercised to grant relief.” 8 C.F.R. § 1240.64(a) (emphasis added). The special rule cancellation of removal under NACARA is “[s]ubject to the provisions of the Immigration and Nationality Act” as modified by IIRIRA, including section 242(a)(2)(B) of the Act, codified at 8 U.S.C. § 1252(a)(2)(B), which places limitations on judicial review. NACARA, § 203(f)(1). Under 8 U.S.C. § 1252(a)(2)(B), “no court ... [has] jurisdiction to review ... any judgment regarding the granting of relief under ... [8 U.S.C. § 1229b],” which includes cancella tion of removal. This provision divests us of authority to review the IJ’s discretionary determinations concerning cancellation of removal. See Mendez v. Holder, 566 F.3d 316, 319-20 (2d Cir.2009); Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir.2006). Pursuant to the amendments of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, however, we retain jurisdiction to review all “constitutional claims or questions of law raised upon a petition for review.” 8" }, { "docid": "22460775", "title": "", "text": "Her application rested on her status as a derivative beneficiary of Ebelio Rosa, however, and she was therefore entitled to relief under NACARA only if Ebelio’s application was granted. Their affirmative applications were denied. At this point, Sola was placed into removal proceedings. But Ebelio Sola Rosa was not placed into removal proceedings because he was granted TPS under 8 U.S.C. § 1254a. If Ebelio Sola Rosa is ever placed in removal proceedings, he will have the opportunity to have his NACARA and asylum claims re-adjudicated before an IJ. Petitioner Sola argues that she was denied due process when the government placed her in removal proceedings without her husband because she is unable to assert her claims to derivative relief on the basis of her husband’s NACARA and asylum claims. If she were placed in removal proceedings at the same time as her husband, he would be able to pursue those claims again and she could then pursue her derivative claims as well. Sola did not raise this due process argument before the IJ or the BIA. This court may review a final order of removal only if “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). A petitioner’s failure to raise an issue before the BIA generally constitutes a failure to exhaust, thus depriving this court of jurisdiction to consider the issue. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). However, “[a]n exception to the exhaustion requirement has been carved for constitutional challenges to the Immigration and Naturalization Act and INS procedures,” Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994), because “[t]he BIA does not have jurisdiction to determine the constitutionality of the statutes it administers,” Padilla-Padilla v. Gonzales, 463 F.3d 972, 977 (9th Cir.2006). Not all due process claims fall within this exhaustion exception. “The key is to distinguish the procedural errors, constitutional or otherwise, that are correctable by the administrative tribunal from those that lie outside the BIA’s ken.” Liu v. Waters, 55 F.3d 421, 426 (9th Cir.1995). In other words, “[c]hallenges to procedural errors" }, { "docid": "6523362", "title": "", "text": "under NACARA, but denied relief after concluding that the hardship to Freeh and his wife did not “rise to the level of extreme hardship required by the statute to overcome the serious misrepresentations made to the Court and to [sic] the serious nature of [Freeh’s] criminal history.” The IJ’s determination included the observation that in addition to the hardships both Mr. and Mrs. Freeh would face if Mr. Freeh were denied relief, Mrs. Freeh (an Israeli national) did not have any relatives in Nicaragua and did not speak Spanish fluently. The BIA affirmed. In this petition for review, Freeh claims that he was denied due process as a result of the denial of a change in venue, and that the IJ failed to apply the correct legal standard in adjudicating his application for waivers of inadmissibility. The Attorney General asserts that the petition is due to be dismissed for lack of jurisdiction. We review subject matter jurisdiction de novo. Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir.2002). 2. Jurisdiction NACARA § 202(f) provides that “[a] determination by the Attorney General as to whether the status of any alien should be adjusted under this section is final and shall not be subject to review by any court.” NACARA § 202(f); Centeno v. U.S. Att’y Gen., 441 F.3d 904, 905 (11th Cir.2006); Ortega v. U.S. Att’y Gen., 416 F.3d 1348, 1350 (11th Cir.2005). Accordingly, we lack jurisdiction to review a determination as to whether an applicant’s status should be adjusted under NACARA. Nevertheless, as the Government concedes, we retain jurisdiction to review constitutional claims arising from the denial of relief under NACARA because nothing in § 202(f) expressly precludes it. See Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (“where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear”) (citation omitted). In Alexis v. U.S. Att’y Gen., 431 F.3d 1291 (11th Cir.2005), we held that although an identical jurisdiction-limiting provision in the Haitian Refugee Immigration Fairness Act of 1998, Pub.L. No. 105-277, 112 Stat. 2681, precluded review" }, { "docid": "23344090", "title": "", "text": "PER CURIAM: Elsa Emilia Samayoa Lanuza (“Samayoa”) and her daughter, Elsa Lopez Samayoa (“Lopez”), are natives and citizens of Guatemala. They petition for review of the Board of Immigration Appeals’ (“BIA”) affirmance of an Immigration Judge’s (“IJ”) decision pretermitting their applications for special rule cancellation of removal under Section 203 of the Nicaraguan and Central American Relief Act of 1997 (NACARA), Pub.L. No. 105-100, 111 Stat. 2160, 2193-2201 (Nov. 19, 1997), amended by Pub.L. No. 105-139, 111 Stat. 2644, 2644-45 (Dec. 2, 1997). To the extent that we have jurisdiction, it is pursuant to 8 U.S.C. § 1252. We review claims of constitutional violations de novo. Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001). We dismiss in part and deny in part. The government argues, and Samayoa does not contest, that we lack jurisdiction to consider Samayoa’s application for relief. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, § 309(c)(5)(C)(ii), 110 Stat. 3009 (1996), expressly precludes us from reviewing the BIA’s determination of eligibility for NA-CARA § 203 relief. Section 309(c)(5)(C)(ii) provides that “[a] determination by the Attorney General as to whether an alien satisfies the requirements of clause (i) is final and shall not be subject to review by any court.” IIRIRA § 309(c)(5)(C)(ii), as amended by NA-CARA, Pub.L. No. 105-100 (1997). Therefore, we lack jurisdiction to determine Samayoa’s statutory eligibility for NACARA § 203 relief. Samayoa also argues that she was denied due process because the IJ determined that she was ineligible for NA-CARA § 203 relief before she began to testify. The record, however, belies this contention. The IJ reviewed all the record evidence, heard counsel’s arguments and Samayoa’s testimony, allowed cross-examination, and directly questioned Samayoa over the course of four hearings before making the ineligibility determination. Therefore, the IJ did not violate Samayoa’s constitutional right to due process by depriving her of a full and fair hearing and a reasonable opportunity to present evidence on her behalf. We dismiss the appeal for lack of jurisdiction in part, and deny in part. DISMISSED; DENIED. . The IJ and the BIA" }, { "docid": "16453485", "title": "", "text": "June 17, 2011, Hanif petitioned this Court for review of the BIA’s decision. II. Jurisdiction The BIA has jurisdiction to review the IJ’s decision under 8 C.F.R. § 1003.1(b)(3). In general, “courts of appeals ... have no jurisdiction to review [the BIA’s] discretionary and factual determinations presented in petitions for review.” Jarbough v. Att’y Gen., 483 F.3d 184, 188 (3d Cir.2007). However, this Court has jurisdiction, pursuant to 8 U.S.C. § 1252(a)(2)(D), to review the BIA’s final order for constitutional claims and questions of law. See Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006) (“By virtue of § 1252(a)(2)(D), constitutional claims or questions of law raised in a petition for review elude the jurisdiction-stripping provisions of the INA”). Petitioner challenges the BIA’s statutory interpretation of 8 U.S.C. § 1182(h), thus raising a question of law within the meaning of § 1252(a)(2)(D). Accordingly, we can exercise jurisdiction over this petition for review. III. Standard of Review When the BIA issues its own decision on the merits, rather than a summary affirmance, we review its decision, not that of the IJ. Sheriff v. Att’y Gen., 587 F.3d 584, 588 (3d Cir.2009). When, however, the Board adopts and affirms the IJ’s decision, as it did here, we have authority to review both decisions. See Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir.2009) (“Inasmuch as the BIA deferred to the IJ’s credibility determinations and adopted the reasons the IJ set forth, we have authority to review both determinations.”) (quoting Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004)). “The BIA’s factual findings are reviewed for substantial evidence.” Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007) (citing 8 U.S.C. § 1252(b)(4)(B)). We review legal determinations de novo, subject to the principles of deference articulated in Chevron v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Id. at 228. IY. Analysis When considering the propriety of an agency’s interpretation of a statute, we must turn to the analytical structure set forth by the Supreme Court in Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778." }, { "docid": "22250082", "title": "", "text": "The exhaustion requirement attaches to each particular issue raised by the petitioner. Lin v. Att’y Gen., 543 F.3d 114, 120 & n. 6 (3d Cir. 2008). A petitioner’s failure to exhaust an issue by presenting it to the BIA deprives us of jurisdiction to consider that issue. Id. at 120-21; Hua Wu v. Att’y Gen., 571 F.3d 314, 317 (3d Cir.2009). We agree that exhaustion presents a barrier to reviewing one issue that Castro raises for the first time in his briefing to this court: namely, that the arrest report and jail arrest card generated after his arrest should not have been admitted in his removal proceedings because the loitering law under which he was arrested was unconstitutional. Castro never presented that issue to the IJ or to the BIA. It is unexhausted, and we lack jurisdiction to consider it. Castro duly exhausted his administrative remedies for the other two issues for which he now seeks judicial review. He challenged the applicability of 8 U.S.C. § 1182(a)(6)(C)(ii) throughout the administrative proceedings. As to his due process argument, described below, Castro attached Trommelen’s letter to his notice of appeal, and his motion to reconsider framed DHS’s alleged failure to disclose Trommelen’s letter as a due process violation. That was sufficient to “place the Board on notice” of the issue, which is all that is required for exhaustion. Lin, 543 F.3d at 121 (quoting Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir.2006)). III. Discussion A. Due Process In the removal context, due process requires that “an alien be provided with a full and fair hearing and a reasonable opportunity to present evidence.” Romanishyn v. Att’y Gen., 455 F.3d 175, 185 (3d Cir.2006). Castro claims that this due process requirement was violated because DHS failed to produce Sergeant Trommelen’s letter. In the letter, Trommelen stated that Palomino, the officer who arrested Castro, told Trommelen that “it was possible Castro could have said Costa Rico [sic] as apposed [sic] to Puerto Rico” when Palomino was filling out the arrest report generated after Castro’s 2004 prostitution arrest. The impeachment value of the letter" }, { "docid": "23358353", "title": "", "text": "was not statutorily eligible for voluntary departure based on a legal interpretation of “physically present” under § 1229c(b). Before the Real ID Act of 2005, § 1229c(f) barred judicial review of denials of voluntary departure based on both discretionary rulings and statutory ineligibility. See Gomez-Lopez v. Ashcroft, 393 F.3d 882, 884 (9th Cir.2004). After passage of the Real ID Act, we addressed a similar statute, 8 U.S.C. § 1158(a)(3), that prohibited review of any determination relating to the one-year bar for asylum claims. Ramadan v. Gonzales, 479 F.3d 646, 649-50 (9th Cir.2007). We concluded that “Section 106 of the Real ID Act of 2005 restores our jurisdiction over ‘constitutional claims or questions of law.’ ” Id. at 650 (citation omitted). We now confirm, as we previously held in Gil, 651 F.3d at 1003, that the Real ID Act also restores appellate jurisdiction over constitutional claims or questions of law in challenges to denials of voluntary departure under § 1229c. Other circuits are in accord with this holding. See, e.g., Serrato-Soto v. Holder, 570 F.3d 686, 688 (6th Cir.2009) (reviewing denial of relief under § 1229c because the petitioner raised a question of law regarding whether a certain crime was a crime of moral turpitude); Garcia v. Holder, 584 F.3d 1288, 1289 n. 2 (10th Cir.2009) (concluding that, notwithstanding the jurisdiction-stripping provisions of the INA, “this court always retains jurisdiction to review constitutional claims and questions of law”). II. DENIAL OF VOLUNTARY DEPARTURE We review de novo the interpretation of “physically present” under § 1229c(b) by looking first to the plain meaning of the statute. See Federiso v. Holder, 605 F.3d 695, 697 (9th Cir.2010) (citation omitted). We conclude that § 1229c(b) is unambiguous and join the Eleventh Circuit in holding that the statute requires uninterrupted physical presence in the United States for one year for an alien to be eligible for voluntary departure at the conclusion of removal proceedings. See Medina Tovar v. U.S. Att’y Gen., 646 F.3d 1300, 1306 (11th Cir.2011). 1. Statutory Background of § 1229c The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) replaced" }, { "docid": "20319121", "title": "", "text": "he or she is eligible for ... special rule cancellation of removal and that discretion should be exercised to grant relief.” 8 C.F.R. § 1240.64(a) (emphasis added). The special rule cancellation of removal under NACARA is “[s]ubject to the provisions of the Immigration and Nationality Act” as modified by IIRIRA, including section 242(a)(2)(B) of the Act, codified at 8 U.S.C. § 1252(a)(2)(B), which places limitations on judicial review. NACARA, § 203(f)(1). Under 8 U.S.C. § 1252(a)(2)(B), “no court ... [has] jurisdiction to review ... any judgment regarding the granting of relief under ... [8 U.S.C. § 1229b],” which includes cancella tion of removal. This provision divests us of authority to review the IJ’s discretionary determinations concerning cancellation of removal. See Mendez v. Holder, 566 F.3d 316, 319-20 (2d Cir.2009); Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir.2006). Pursuant to the amendments of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, however, we retain jurisdiction to review all “constitutional claims or questions of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D); see also Sumbundu v. Holder, 602 F.3d 47, 52 (2d Cir.2010). “Questions of law” encompass “the same types of issues that courts traditionally exercised in habeas review over Executive detentions.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 324, 326-27 (2d Cir.2006). We have not defined the “precise outer limits” of this category, but we have indicated that a question of law arises, inter alia, “where a discretionary decision is argued to be an abuse of discretion because it was based on a legally erroneous standard.” Khan v. Gonzales, 495 F.3d 31, 34 (2d Cir.2007) (internal quotation marks and alterations omitted). To determine whether we have jurisdiction to consider a petition for review, we must “study the arguments asserted.” Id. at 35 (internal quotation marks omitted). “We do not rely solely on a petitioner’s description of his claims, but scrutinize a petitioner’s arguments to determine whether they raise reviewable questions.” Id. We retain jurisdiction to determine our own jurisdiction. See James v. Mukasey, 522 F.3d 250, 253 (2d Cir.2008)." }, { "docid": "9977307", "title": "", "text": "8 U.S.C. § 1252b(e)(2)(A). The BIA relied heavily on its prior decision in Matter of Shaar, 21 I & N Dec. 541 (BIA 1996), aff'd, 141 F.3d 953 (9th Cir.1998), which held that the pendency of a request for relief-in that case, a motion to reopen deportation proceedings filed just prior to the departure date-failed to constitute an “exceptional circumstance” justifying a failure to timely depart. This Petition for Review followed. II. Because Barrios was placed in deportation proceedings prior to April 1,1997, and his final order of deportation was entered by the BIA after October 31, 1996, we have jurisdiction pursuant to 8 U.S.C. § 1105a(a), as amended by the transitional rules established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) (“IIRIRA”). See Sandoval v. Reno, 166 F.3d 225, 229-31 (3d Cir.1999) (applying IIRIRA’s transitional rules to jurisdiction). We review the BIA’s denial of a motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). We review the BIA’s legal conclusions de novo, with appropriate deference to the agency’s interpretation of the underlying statute in accordance with administrative law principles. Abdulai v. Ashcroft, 239 F.3d 542, 551-52 (3d Cir.2001). We are also mindful of “ ‘the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.’ ” INS v. St. Cyr, 533 U.S. 289, 320, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (quoting INS v. Cardoza — Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). III. Barrios argues that he is eligible for an adjustment of status based on his marriage to a United States citizen. He further argues that he filed the motion to reopen with the BIA in a timely manner, prior to his voluntary departure date, and that the administrative delay of the BIA in adjudicating his motion should not deprive him of the relief to which he is entitled. Insofar as Matter of Shaar compels a contrary conclusion, he argues that it should" }, { "docid": "22731797", "title": "", "text": "also contends that NACARA’s imposition of the April 1, 1990 asylum-filing deadline as a pre-condition to special-rule cancellation of removal violates due process. To sustain a due process challenge, Hernandez-Mezquita must show that his ability to apply for special-rule cancellation of removal is a qualifying liberty interest of which he was deprived. Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The difficulty with Hernandez-Mezqui-ta’s contention is that the very liberty interest he asserts to have been taken away by NACARA was granted by that same statute. It is true that NACARA § 203 made special-rule cancellation of removal available to certain categories of Salvadoran refugees, and that Hernandez-Mezquita is not in one of those categories. But until the passage of NACARA, there was no special-rule cancellation of removal for anyone (including Hernandez-Mezqui-ta). Hernandez-Mezquita cannot contend that NACARA § 203 violated due process by depriving him of a right he never had. IV. Voluntary Departure Finally, Hernandez-Mezquita claims that the BIA abused its discretion by dismissing his appeal without extending the Immigration Judge’s grant of voluntary departure. We lack jurisdiction to review that decision. See 8 U.S.C. § 1252(a)(2)(B) (“Notwithstanding any other provision of law, no court shall have jurisdiction to review — (i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c [voluntary departure], or 1255[.]”) (brackets added); 8 U.S.C. § 1229c(f) (“No court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure under subsection (b) of this section, nor shall any court order a stay of an alien’s removal pending consideration of any claim with respect to voluntary departure.”). PETITION DENIED. . The revised ABC settlement deadline for Salvadoran class members — all Salvadorans physically present in the United States on or before September 19, 1990 — to have registered for ABC benefits, by either submitting an ABC registration form or applying for Temporary Protected Status (TPS), is October 31, 1991. The revised ABC settlement deadline for Salvadoran class members to have filed an asylum application is January 31, 1996." }, { "docid": "22626577", "title": "", "text": "he is ineligible for NA-CARA relief on the grounds that (1) special rule cancellation of removal (“special rule cancellation”) requires seven years of continuous physical presence for the minor children of NACARA beneficiaries; and (2) Ramos’s father’s physical presence cannot be imputed to him to satisfy this requirement. We agree with the BIA. 1. Section 203 of NACARA On November 19, 1997, President Clinton signed into law NACARA, Pub.L. No. 105-100, 111 Stat. 2160, 2193-2201 (1997), amended by Pub.L. No. 105-139, 111 Stat. 2644, 2644-45 (1997). NACARA provides various forms of immigration benefits and relief from removal to certain Guatemalans and nationals of other Central American and former Soviet Bloc countries. Section 203 of NACARA allows qualified individuals to apply for special rule cancellation under the more lenient standards that existed before the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009. See Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1093 (9th Cir.2005); Munoz v. Ashcroft, 339 F.3d 950, 955-56 (9th Cir.2003). Agency regulations interpreting special rule cancellation closely track the text of IIRIRA and NACARA. See 8 C.F.R. §§ 1240.61, .66. 2. Whether Ramos Satisfies One of the Threshold Requirements To qualify for special rule cancellation, an applicant first must show that he falls into one of the five groups identified in 8 C.F.R. § 1240.61(a). As an initial matter, we must briefly address whether we have jurisdiction to consider the BIA’s ruling that Ramos failed to satisfy one of these threshold requirements. We hold that we do. Section 309(c)(5)(C)(ii) of IIR-IRA, as amended by section 203(b) of NA-CARA, appears to limit our jurisdiction to review an agency’s determination that an applicant failed to satisfy one of the threshold requirements set forth in section 309(e)(5)(C)(i). However, “section 106 of the Real ID Act of 2005 restored our jurisdiction over ‘constitutional claims or questions of law’ raised in a petition for review.” Dhital v. Mukasey, 532 F.3d 1044, 1049 (9th Cir.2008) (per curiam). In Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.2007) (per curiam), we held that such questions of" }, { "docid": "22138617", "title": "", "text": "Cyr, is whether a statute — § 2242(d) — has explicitly excluded a particular claim from the jurisdictional statutory grant of § 2241. . See Calcano-Martinez v. INS, 533 U.S. 348, 351, 121 S.Ct. 2268, 2270, 150 L.Ed.2d 392 (2001) (concluding that \"leaving aliens without a forum ... would raise serious constitutional questions”); St. Cyr, 533 U.S. at 300, 121 S.Ct. at 2279 (stating that \"[a] construction of [AEDPA and IIRIRA] that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions”). As discussed earlier, FARRA § 2242(d) permits review of CAT claims only \"as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U.S.C. [§ ] 1252).” INA § 242 permits aliens subject to final removal orders by the BIA to petition federal courts of appeal for review of their removal orders. See 8 U.S.C. § 1252. Except for substantial constitutional challenges to removal, § 242(a)(2)(C) strips this Court of jurisdiction to review removal orders of certain criminal aliens, including those like Cadet, who have been convicted of an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C). See, e.g., Balogun v. United. States Att’y Gen., 304 F.3d 1303, 1310 (11th Cir.2002) (\"We are without jurisdiction to review a removal order if the petitioner is (1) an alien (2) who is removable (3) because he committed a criminal offense enumerated in the statute.”); Fernandez-Bernal v. Att’y Gen., 257 F.3d 1304, 1308 (11th Cir.2001); Galindo-Del Valle, 213 F.3d at 597 (11th Cir.2000). Accordingly, absent § 2241 habeas review, aggravated felons like Cadet would have no opportunity to seek review in federal court of INS decisions denying them CAT relief. . In St. Cyr, the Supreme Court even noted the distinction between eligibility for discretionary relief, which it held is a pure matter of law reviewable on habeas, and the favorable exercise of discretion, which is \" 'a matter of grace.' ” 533 U.S. at 308, 121 S.Ct. at 2283 (citation omitted). . Cadet's new evidence consisted of certain exhibits attached" }, { "docid": "23502659", "title": "", "text": "his eligibility for special rule cancellation of removal under NACARA § 203. IV. Following our sister circuits, we hold that the application of INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), is impermissibly retroactive when applied to immigrants who were deported but reentered and filed for immigration relief prior to IIRIRA’s effective date. We therefore grant Chay’s petition for review in part and vacate the reinstatement order entered against him. As we lack jurisdiction over the factual predicate of Chay’s NACARA § 203 claim, we deny the petition for review in part. This panel retains jurisdiction over all further appeals in this matter. Petition GRANTED in part, DENIED in part and REMANDED. . NACARA, which is not codified in the U.S.Code, was signed into law on November 19, 1997. See Pub.L. No. 105-100, 111 Stat. 2160, 2193-2201 (1997), amended by Pub.L. No. 105-139, 111 Stat. 2644, 2644-45 (1997). . The INS ceased to exist in 2003, and most of its functions were transferred to the Department of Homeland Security. See, e.g., Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489 n. 7 (9th Cir.2007) (en banc). . IIRIRA \"replaced all references to ‘deportation’ with 'removal.' ” Morales-Izquierdo, 486 F.3d at 488 n. 3; see also, e.g., Mariscal-Sandoval v. Ashcroft, 370 F.3d 851, 854 n. 6 (9th Cir.2004) (\"The IIRIRA merged deportation and exclusion proceedings into the broader category of ‘removal’ proceedings.\"). . Since his deportation hearings, Chay has claimed consistently on official documents that his year of birth is 1967, which would mean that he was twenty-one years old, not sixteen, when he appeared before the IJ in 1989. . Chay's wife now also resides in the United States. They have three children. One is a citizen of Guatemala; the other two are U.S. citizens. . To be eligible for “special rule cancellation of removal” under NACARA § 203, an alien, inter alia, must have registered as an ABC class member. See 8 C.F.R. § 1240.61. As relevant here, a registered ABC class member is any Guatemalan national who: (1) first entered the United States on or before October 1, 1990 and (2)" }, { "docid": "9977306", "title": "", "text": "with the United States Bureau of Citizenship and Immigration Services, seeking to secure him permanent resident status as the spouse of a United States citizen. Thereafter, on April 18, 2003, eight days before his voluntary departure period expired, Barrios filed a motion to reopen his deportation proceedings with the BIA to allow for consideration (by the IJ) of his application for adjustment of status based upon his recent marriage. When the BIA finally considered the motion to reopen on June 30, 2003, it denied the motion based on section 242B(e) of the INA, 8 U.S.C. § 1252b(e). That section prohibits an alien who has remained in the United States past the relevant period of voluntary departure from applying for an adjustment of status for a period of five years, absent a showing of exceptional circumstances for failing to depart. Inasmuch as Barrios remained in the United States beyond his voluntary departure date, the BIA determined that he was statutorily ineligible for an adjustment of status, notwithstanding his then-recent marriage to a United States citizen. See 8 U.S.C. § 1252b(e)(2)(A). The BIA relied heavily on its prior decision in Matter of Shaar, 21 I & N Dec. 541 (BIA 1996), aff'd, 141 F.3d 953 (9th Cir.1998), which held that the pendency of a request for relief-in that case, a motion to reopen deportation proceedings filed just prior to the departure date-failed to constitute an “exceptional circumstance” justifying a failure to timely depart. This Petition for Review followed. II. Because Barrios was placed in deportation proceedings prior to April 1,1997, and his final order of deportation was entered by the BIA after October 31, 1996, we have jurisdiction pursuant to 8 U.S.C. § 1105a(a), as amended by the transitional rules established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) (“IIRIRA”). See Sandoval v. Reno, 166 F.3d 225, 229-31 (3d Cir.1999) (applying IIRIRA’s transitional rules to jurisdiction). We review the BIA’s denial of a motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719," }, { "docid": "23502658", "title": "", "text": "so-called “ABC benefits” as required to be eligible for “special rule cancellation of removal” under NACARA § 203, see 8 C.F.R. § 1240.61, this court lacks jurisdiction over Chay’s NACARA claim. We agree. IIRIRA expressly precludes federal courts from reviewing the agency’s factual determination that an immigrant is ineligible for ABC benefits or special rule cancellation of removal under NACARA § 203. See, e.g., Lanuza v. Holder, 597 F.3d 970, 971 (9th Cir.2010) (per curiam) (“Section 309(c)(5)(C)(ii) [of IIRIRA] provides that ‘[a] determination by the Attorney General as to whether an alien satisfies the requirements of clause (i) is final and shall not be subject to review by any court.’ Therefore, we lack jurisdiction to determine [petitioner’s] statutory eligibility for NACARA § 203 relief.” (citation omitted)); Molina Jerez, 625 F.3d at 1069 (“Whether [petitioner] registered for ABC benefits in a timely manner is a purely factual issue over which this court lacks jurisdiction.” (citation omitted)). Accordingly, we deny Chay’s petition for review to the extent that he asks us to remand to DHS to reevaluate his eligibility for special rule cancellation of removal under NACARA § 203. IV. Following our sister circuits, we hold that the application of INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), is impermissibly retroactive when applied to immigrants who were deported but reentered and filed for immigration relief prior to IIRIRA’s effective date. We therefore grant Chay’s petition for review in part and vacate the reinstatement order entered against him. As we lack jurisdiction over the factual predicate of Chay’s NACARA § 203 claim, we deny the petition for review in part. This panel retains jurisdiction over all further appeals in this matter. Petition GRANTED in part, DENIED in part and REMANDED. . NACARA, which is not codified in the U.S.Code, was signed into law on November 19, 1997. See Pub.L. No. 105-100, 111 Stat. 2160, 2193-2201 (1997), amended by Pub.L. No. 105-139, 111 Stat. 2644, 2644-45 (1997). . The INS ceased to exist in 2003, and most of its functions were transferred to the Department of Homeland Security. See, e.g., Morales-Izquierdo v. Gonzales, 486 F.3d" }, { "docid": "22453585", "title": "", "text": "Khan “largely reiterate[d] the same arguments that he presented on” direct appeal. The Board was “not persuaded that [it] committed an error of fact or law in [its] prior decision by affirming the Immigration Judge’s discretionary denial of relief.” Finally, the BIA held that “[t]o the extent that [Khan’s motion] raises new arguments, they essentially assert that his case should not have been affirmed without opinion by a single Board Member,” and such arguments were “barred by regulation.” DISCUSSION 1. Jurisdiction The government argues that we lack jurisdiction to review Khan’s petition for review because we are precluded from reviewing a challenge brought by “an alien who is removable by reason of having committed” an aggravated felony, 8 U.S.C. § 1252(a)(2)(C), or a challenge to the agency’s denial of discretionary relief, see 8 U.S.C. § 1252(a)(2)(B)(ii). See also Martinez-Maldonado v. Gonzales, 437 F.3d 679, 683 (7th Cir.2006) (“[W]e lack jurisdiction over motions to reopen and reconsider in cases where we lack jurisdiction to review the underlying order.”); Patel v. U.S. Att’y Gen., 334 F.3d 1259, 1262 (11th Cir.2003) (When a jurisdiction-stripping provision deprives the court of jurisdiction over the underlying order, “it strips us of jurisdiction to entertain an attack on that order mounted through filing of a motion to reopen.”); Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir.1997) (“[W]here Congress explicitly withdraws our jurisdiction to review a final order of deportation, our authority to review motions to reconsider or to reopen deportation proceedings is thereby likewise withdrawn.”). However, the jurisdiction-stripping provisions on which the government relies are both subject to the exception set forth in 8 U.S.C. § 1252(a)(2)(D), which restores our jurisdiction to review “constitutional claims or questions of law.” See, e.g., Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 324 (2d Cir.2006). As we explained in Xiao Ji Chen, we have “not determined] the precise outer limits of the term ‘questions of law.’ ” Id. at 328. We have, however, suggested that a question of law arises “where a discretionary decision is argued to be an abuse of discretion because it was ..." } ]

[ { "docid": "23383020", "title": "", "text": "competition in the boys’ program. The answer must depend on whether it is permissible for the defendants to structure their athletic programs by using sex as one criterion for eligibility. If the classification is reasonable in substantially all of its applications, I do not believe that the general rule can be said to be unconstitutional simply because it appears arbitrary in an individual case. O’Connor v. Board of Education,-U.S. at-, 101 S.Ct. at 75. Karen has failed to show a reasonable likelihood of success on the merits of her equal protection claim. The same answer must obtain as to her remaining claims. The total exclusion of boys from a girls-only sport does not violate the Illinois Constitution, which has been interpreted to regard sex as a suspect classification. Ill. Const, art. I, § 18; Petrie v. Illinois High School Ass’n, 75 Ill.App.3d 980, 31 Ill.Dec. 653, 394 N.E.2d 855 (Ill.App.1979); People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98 (Ill. 1974). It is highly unlikely, therefore, that Karen could demonstrate that the provision of separate teams for boys and girls violates the Illinois Constitution. Nor can plaintiff establish a violation of Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq. Title IX aims to provide equal opportunity in educational programs without discrimination on the basis of sex. The MacArthur program appears to be in complete compliance with Title IX and the regulations promulgated thereunder. 45 C.F.R. § 86.41(b). Plaintiff’s major challenge under this statute is the validity of the regulations, which expressly permit separate-sex teams and permit exclusion of girls from contact sports, including basketball. Plaintiff, however, presented no evidence at the hearing to support her claim that the regulations violate Title IX. Justice Stevens, in fact, stated that defendants’ compliance with the regulations “indicate[s] a strong probability that the gender-based classification can be adequately justified.” O'Connor v. Board of Education,-U.S. at-, 101 S.Ct. at 76. Here, too, plaintiff has failed to demonstrate a reasonable likelihood of success on the merits. Plaintiff’s final claim is that she has been denied due process. She claims" } ]

[ { "docid": "15206996", "title": "", "text": "1, 55, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). . Mr. Justice Powell stated in concurrence that “I find no negative implication in the opinion with respect to a liberty interest within the Fourteenth Amendment as to matters of personal appearance.” 425 U.S. at 249, 96 S.Ct. at 1447. Cases in this circuit have uniformly held that in a public school the student’s right to control personal appearance is an ingredient of personal freedom protected by the Fourteenth Amendment. Holsapple v. Woods, 500 F.2d 49 (7th Cir. 1974); Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1970); Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969). . This opinion has been circulated among all the judges of this court in regular active service. A majority did not favor a rehearing in banc on the question of withdrawing the categorical holding of Miller. PELL, Circuit Judge, concurring in part, dissenting in part. In this case, the same public employer terminated employment of the plaintiff as a school bus driver because of his wearing a moustache but took no similar action concerning his employment as a school teacher. In the posture of the case as presented to us by way of summary judgment, the respective actions are so obviously inconsonant that they “may be branded ‘arbitrary,’ and therefore a deprivation of [the appellant’s] ‘liberty’ interest in freedom to choose his own [manner of appearance.]” Kelley v. Johnson, 425 U.S. 238, 248, 96 S.Ct. 1440, 1446, 47 L.Ed.2d 708 (1976). I therefore concur in the result reached in the majority opinion. I do not, however, deem it necessary to retreat from what I regard as the salutary guidelines laid down in Miller v. School District No. 167, 495 F.2d 658 (7th Cir. 1974), and I therefore respectfully dissent from that portion of the majority opinion. The line of distinction between the two cases is certainly a fine one but nevertheless one which has discernible status. As I read Miller, its actual holding is that in cases of the present type, involving a claim by" }, { "docid": "15206989", "title": "", "text": "how neatly trimmed, to drive a school bus lacks any rational relationship with a proper school purpose. It is so irrational as to be arbitrary. Its irrationality is emphasized by the fact that defendants have no such policy with respect to teachers. The only justification even attempted is set forth in an affidavit that the policy is of long standing and acceptable to a community that is “religious, and . conservative in their attitudes toward tradition, heritage, morals, ethics, and their attitude toward work.” There is not even a suggestion that plaintiff’s mustache negatively affected his driving skills, or relationship with his passengers, nor that it tended to generate any kind of problem which endangered their health or safety. Far from justifying the policy, the fact that the community attitudes were the only justification offered makes it even more clear, so far as the present record goes, that the presumption in favor of the validity of a rule has been overcome. In terms of substantive due process, i. e., whether existence of such a policy deprives present or prospective bus drivers of liberty without due process, the test is whether the challenger can demonstrate that there is no rational connection between the policy and accomplishment of a public purpose. Kelley v. Johnson, 425 U.S. 238, 247, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976). Put another way, it is whether the choice of policy is so irrational that it may be branded arbitrary and therefore a deprivation of the challenger’s liberty interest in freedom to choose his own hairstyle. 425 U.S. at 248, 96 S.Ct. 1440. Viewing the claim as a denial of equal protection, i. e., classification of persons with mustaches as ineligible for employment, the test is the same. Our difficulty with this ease arises out of the holding, relied on by the district court, Miller v. School District Number 167, Cook County, Ill, 495 F.2d 658, 668 (7th Cir. 1974), that the liberty exercised in choice of style of appearance is of such minor significance that “the denial of public employment because the employer considers the applicant’s appearance" }, { "docid": "220888", "title": "", "text": "refusal to continue to employ plaintiffs solely because of their noncompliance with arbitrary and discriminatory grooming regulations violates plaintiffs’ constitutional rights to privacy, due process and equal protection under the First, Fifth and Fourteenth Amendments. On September 22, 1972, the court conducted an evidentiary hearing on plaintiffs’ motion for a preliminary injunction. The evidence adduced disclosed that on July 31, 1972, the School Board adopted a code of conduct effective for the 1972-73 school year, part II of which delineated personal appearance regulations for both boy and girl students. Although the personal appearance section of the code was specifically directed to students, at the hearing defendants insisted that the Board had contemplated the applicability of the code to students and teachers alike, and that certain language in part IV of the code entitled “Discipline Policy” had been inserted to insure that teachers would be equally subject to the grooming restrictions in part II during the 1972-73 academic year. The pertinent portions of part II of the code, which specifically relate to boy students, contained sections governing beards, mustaches, and sideburns, as follows: “(b) Boys: 1. Beards are prohibited. 2. A moustache may be worn provided it is neatly trimmed, does not extend below the bottom of the top lip and does not extend beyond the corners of the mouth. * * * * -» 4. Sideburns may be worn to a length not below the bottom of the ear lobe, must be neatly trimmed, and cannot be bushy.” Each of the named plaintiffs has taught in the Columbus schools for the past six years. W. James Conard, 29 years, is a mathematics and algebra teacher in S. D. Lee High School, and currently wears a moustache slightly extending below the corners of the mouth, a small beard or goatee, and sideburns which do not extend below the bottom of the ear lobe. Ezra Baker, 28 years, and a civics teacher in Lee High School, has a moustache slightly extending below the corners of the mouth, a faint growth of hair below the bottom lip, and sideburns protruding just below the" }, { "docid": "2531340", "title": "", "text": "transmit the basic values of the community. Id. at 573. See also Miller v. School District, 495 F.2d 658, 664 (7th Cir.) (Stevens, J.), reh. denied, 500 F.2d 711 (1974) (“desire to encourage respect for tradition” sufficient to uphold a dress code for teachers). The majority is inconsistent when it credits Mr. Brimley’s notion that tielessness carries a message to his students, but belittles the board’s conclusion that wearing a tie is equally expressive. Professor Cox was far more sympathetic to the board’s point of view. As the majority observes, he noted Mr. Brimley’s sincerity, but further stated: The School Board feels no less deeply and strongly that the atmosphere of the classroom and attitude of the students are sufficiently affected by teacher’s clothing for it to require a necktie and jacket. The majority goes to great lengths to argue on policy grounds against the board’s decision. Our function as a court is not to endorse the “better” or more “progressive” policy. Rather, as Kelley v. Johnson, 425 U.S. 238, 248, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976), makes clear, we are to assess the regulations and strike down only those which are so “arbitrary as to be branded irrational.” There is a world of difference between “unwise” and “irrational.” My dissent is not based on my belief in the efficacy of ties, but rather on my firm conviction that it is no part of judicial business to express any opinion at all on such questions. The argument made by appellant, and adopted by the majority, was properly addressed to the board, which considered and rejected it. I can see no reason to create a constitutional preference for the decision of an individual teacher in these matters over that of his employers. III. Academic Freedom in the Public Schools. In the public high school, as elsewhere, the concept of academic freedom is a meaningful limitation on the power of those in command to stifle dissent and control thought. Eisner v. Stamford Board of Education, 440 F.2d 803 (2d Cir. 1971). At the same time, however, the First Amendment leaves undisturbed" }, { "docid": "2531348", "title": "", "text": "policy arguments in favor of and against a rule regulating hairstyles as a part of regulations governing a uniformed civilian service. The constitutional issue to be decided by these courts is whether petitioner’s determination that such regulations should be enacted is so irrational that it may be branded “arbitrary,” and therefore a deprivation of respondent’s “liberty” interest in freedom to choose his own hairstyle. Williamson v. Lee Optical Co., 348 U.S. 483, 487-88 [75 S.Ct. 461, 464-465, 99 L.Ed.2d 563, 571-572] (1955). Kelley v. Johnson, 425 U.S. 238, 247-48, 96 S.Ct. 1440, 1446, 47 L.Ed.2d 708 (1976). The majority opinion, ignoring controlling precedent, returns to the discredited reasoning of Dwen v. Barry, and explicitly places the burden of justifying the dress code upon the board. In distinguishing Kelley, the majority relies on the truism that policemen are different from teachers. This is a distinction without a difference for constitutional purposes. Kelley determines that the right of public employees to dress as they please is not “fundamental” in the constitutional sense. Accordingly, the state carries no burden of justification in this case. Rather, the plaintiff must demonstrate that the dress code is so arbitrary that it serves no legitimate interest of the board. It goes without saying that the result which we might reach for a police department will often differ from that for a school district. I would happily join in striking down a requirement that teachers all wear blue uniforms with insignia of rank; I take it that the majority would join me in upholding such a regulation for a police department. However, the fact that the results of two challenges to the same regulation might differ in no way implies that a different constitutional test is called for. There is no authority for the position that teachers are entitled to a stricter constitutional test than are other government employees. See Garrity v. New Jersey, 385 U.S. 493, 499-500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). VI. The “Liberty” Claim. The majority also agrees with the appellant that the substantive “liberty” protected by the due process clause is a" }, { "docid": "21069791", "title": "", "text": "vague, overarching view of cultural tradition. 2. Comprehensibility of Message. Second, it is difficult to see how Zalewska’s broad message would be readily understood by those viewing her since no .particularized communication can be divined simply from a woman wearing a skirt. Essential to deciding whether an activity carries a perceptible message entitled to protection is an examination of the context in which the activity was conducted. See Johnson, 491 U.S. at 405, 109 S.Ct. 2533. The Supreme Court has been careful to distinguish between communicative activity with a clear contextual message, such as the wearing of a black armband in protest during the Vietnam War, compared with other types of activity, like choosing what to wear in the ordinary course of employment. See Tinker v. Des Moines Sch. Dist., 393 U.S. 503, 507-08, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The statement in Tinker — that regulation of “length of skirts or type of clothing, ... hair style, or deportment” is different from that sort of regulation .that “involves direct, primary First Amendment rights akin to ‘pure speech’ ” — suggests that a person’s choice of dress or appearance in an ordinary context does not possess the communicative elements necessary to be considered speech-like conduct entitled to First Amendment protection. 393 U.S. at 507-08, 89 S.Ct. 733. See also Kelley, Comm’r, Suffolk County Police Dep’t v. Johnson, 425 U.S. 238, 245, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976) (discussing Supreme Court First Amendment precedents). Of course, there may exist contexts in which a particular style of dress may be a sufficient proxy for speech to enjoy full constitutional protection. A state court in Massachusetts, for example, found in Doe ex rel. Doe v. Yunits, 2000 WL 33162199 (Mass.Super.Oct.11, 2000), that a male high school student’s decision to wear traditionally female clothes to school as an expression of female gender identity was protected speech. Although not binding on us, this case illustrates the point. In Yunits, the plaintiffs dress was an expression of his clinically verified gender identity. This message was readily understood by others in his high school context," }, { "docid": "15206990", "title": "", "text": "deprives present or prospective bus drivers of liberty without due process, the test is whether the challenger can demonstrate that there is no rational connection between the policy and accomplishment of a public purpose. Kelley v. Johnson, 425 U.S. 238, 247, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976). Put another way, it is whether the choice of policy is so irrational that it may be branded arbitrary and therefore a deprivation of the challenger’s liberty interest in freedom to choose his own hairstyle. 425 U.S. at 248, 96 S.Ct. 1440. Viewing the claim as a denial of equal protection, i. e., classification of persons with mustaches as ineligible for employment, the test is the same. Our difficulty with this ease arises out of the holding, relied on by the district court, Miller v. School District Number 167, Cook County, Ill, 495 F.2d 658, 668 (7th Cir. 1974), that the liberty exercised in choice of style of appearance is of such minor significance that “the denial of public employment because the employer considers the applicant’s appearance inappropriate for the position in question, does not in and of itself represent a deprivation that is forbidden by the Due Process Clause.” With all respect, this seems to us to be too sweeping a declaration. The Supreme Court did not go so far in deciding Kelley. There the Court assumed, but found it unnecessary to decide, that “the citizenry at large has some sort of ‘liberty’ interest within the Fourteenth Amendment in matters of personal appearance.” Whatever the liberty interest of the citizenry at large, the Court deemed “highly significant” the fact that plaintiff in a case of this sort makes his challenge as a government employee and not as a member of the citizenry at large. Listing a number of presumably acceptable restrictions to which the employee is subject, the opinion suggests that the governmental interest in accomplishing its proper purposes often outweighs the employee’s interest in freedom of action. In the case of the policeman before it, the Court took into consideration the choice of organization of the police force, made by" }, { "docid": "3548801", "title": "", "text": "is taken. In this case, Stephenson underwent medical treatment, incurred expense and suffered physical injury solely on the basis of the subjective opinion of school administrators and local police who had no other evidence Stephenson was involved in gang activity. See id. at 77 (“[I]t can often be difficult to verify gang membership except through continual observation.”). Thus, the essentially unfettered discretion of these individuals placed a high school student in the unenviable position of removing her tattoo by scarring her body or suffering suspension from her educational pursuits for ten days and facing possible expulsion. The District regulation, therefore, violates a central purpose of the vagueness doctrine that “if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.” Grayned, 408 U.S. at 108, 92 S.Ct. at 2299. 3. Sadly, gang activity is not relegated to signs and symbols otherwise indecipherable to the uninitiated. In fact, gang symbols include common, seemingly benign jewelry, words and clothing. For example, color combinations frequently represent gang symbols. Gaut, 214 Ill.Dec. 68, 660 N.E.2d at 261 (police officers testified that the “best-known gang ‘colors’ were black and gold (Latin Kings and other People Nation affiliates) and blue and black (Folk Nation affiliates)”). Indeed, the colors red and blue are the colors of our flag and the colors of two prominent gangs: the Bloods and Crips. Baseball caps, gloves and bandannas are deemed gang related attire by high schools around the country, Paul D. Murphy, Restricting Gang Clothing in Public Schools: Does a Dress Code Violate a Student’s Right of Free Expression?, 64 S.Cal.L.Rev. 1321, 1328 (July 1991), as well as collegiate logos. Gaut, 214 Ill.Dec. 68, 660 N.E.2d at 261 (Duke University baseball cap is a Folk Nation emblem). A male student wearing an earring, Olesen v. Board of Educ. of Sch. Dist. No. 228, 676 F.Supp. 820, 821 (N.D.Ill.1987), or allowing a shoelace to go untied, Gaut, 214 Ill.Dec. 68, 660 N.E.2d at 261, is engaging in actions considered gang related. Even a student who innocently refers to classmates as “folks” or “people” is" }, { "docid": "15291540", "title": "", "text": "that a hunter hears quacking next door does not tell him that callers are in use there. The same is true of bait; standing crops attract game quite as well as bait does, and hunting over standing crops is expressly permitted by another portion of the regulations not quoted. If the hunter cannot tell which is the means next door that is pulling birds over him, he cannot justly be penalized. Any other interpretation would simply render criminal convic tion an unavoidable occasional consequence of duck hunting and deny the sport to those such as, say, judges who might find such a consequence unacceptable. On the other hand, to require a higher form of scienter— actual guilty knowledge — would render the regulations very hard to enforce and would remove all incentive for the hunter to clear the area, a precaution which can reasonably be required. Such a reading is unnecessary to the regulations’ constitutionality, and we reject it. Given the magistrate’s findings and conclusions, these observations dispose of appellants’ major attacks, that on “area” as vague and that on “should have known” as the standard of scienter. Appellants next contend, relying on the case of United States v. Olesen, 196 F.Supp. 688 (S.D.Cal.1961), that to save the regulation from being too vague we should read a 200-yard limit into the word “area.” Olesen did indeed read in such a limitation but did so under circumstances which have no applicability here. The State of California, where Olesen transpired, had its own game laws which prohibited hunting within 200 yards of a feeding area. The district court held that the Secretary of the Interior should be held to have accepted the state law and thus, the court reasoned, the federal and state regulations should be read together as preventing hunting only within 200 yards of bait. Appellants have cited no Louisiana statute regulating duck hunting, and if there were such a statute we would not be inclined to follow the Olesen reasoning. The regulation is a national one, founded on a treaty, and should not mean one thing in one state" }, { "docid": "22593324", "title": "", "text": "e. g., Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). The question before this court is where on the spectrum lies the asserted right of a high school student to wear hair in school at the length that suits him. It is our firm belief that this asserted freedom does not pise to the level of fundamental significance which would warrant our recognition of such a substantive constitutional right. We are influenced in this decision by numerous factors. First, the interference with liberty is a temporary and relatively inconsequential one. The regulation in question does, after all, leave these students a rather wide range of personal choice in their dress and grooming. We do not have here “a nation bent on turning out robots * * * insist [ing] that every male have a crew cut and every female wear pigtails”. Secondly, we feel compelled to recognize and give weight to the very strong policy considerations in favor of giving local school boards the widest possible latitude in the management of school affairs. School administrators must daily make innumerable decisions which restrict student liberty. The briefs in this.case afford an interesting sampling of the kinds of restrictions which have been held valid in the Texas state courts. Examples are regulations requiring students to park automobiles in a designated parking lot and not move them until a designated hour; forbidding students from leaving school grounds during recess and noon hour; prohibiting membership in high school fraternities and sororities; forbidding students from taking lunch except from the school cafeteria. Each of these regulations imposes restrictions on student liberty at least as substantial as the regulation here in question. It would require little imagination to formulate an equally plausible due process attack on the validity of each restriction. Does it follow that school officials should be called into federal court and given the burden of demonstrating “factually” that these restrictions serve “compelling” interests and that no “alternatives less restrictive of liberty” are available ? We think not. Federal courts, and particularly those in this circuit, have unflinchingly intervened" }, { "docid": "6699972", "title": "", "text": "the areas described above. But in the case before us, no evidence was presented which demonstrated that the Black students of Southside High School were being denied access to any of the school’s facilities because of the use of the offensive symbols. Thus, the plaintiffs have failed to establish the necessary connection between the general policy of the school board of allowing students to choose their school symbols and the discrimination allegedly practiced against the Black students. Unless such nexus can be drawn, the adoption of symbols by the majority of the students is merely the exercise of their first amendment right of free speech and the state has not insinuated itself into private acts of discrimination. We find no merit in the plaintiffs’ argument that the holding in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), precludes a school from compelling minority pupils “to endure [offensive] official symbols at a tax supported institution which they are compelled to attend.” Tinker held that a school could not prohibit students from wearing black armbands, as symbols of dissent, while attending school since the constitutional right of free speech and expression is not shed at the schoolhouse gate. We fail to find any evidence in the record that the Black students’ right of free speech and expression is being abridged by use of the Confederate symbols. Plaintiffs’ reliance on School District of Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), and Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), is also misplaced since those cases based their prohibition of religious activities in public schools on the establishment clause of the first amendment. In conclusion, although we agree that the symbols complained of are offensive and that good policy would dictate their removal, we find no evidence in the record before us that a constitutional violation has occurred. Should such evidence become available in the future, we see nothing which bars an appropriate action at that time. The judgment of the district court" }, { "docid": "22536994", "title": "", "text": "views, Piphus and his mother, as guardian ad litem, filed suit against petitioners in Federal District Court under 42 U. S. C. § 1983 and its jurisdictional counterpart, 28 U. S. C. § 1343, charging that Piphus had been suspended without due process of law in violation of the Fourteenth Amendment. The complaint sought declaratory and injunctive relief, together with actual and punitive damages in the amount of $3,000. Piphus was readmitted to school under a temporary restraining order after eight days of his suspension. Respondent Silas Brisco was in the sixth grade at Clara Barton Elementary School in Chicago during the 1973-1974 school year. On September 11, 1973, Brisco came to school wearing one small earring. The previous school year the school principal had issued a rule against the wearing of earrings by male students because he believed that this practice denoted membership in certain street gangs and increased the likelihood that gang members would terrorize other students. Brisco was reminded of this rule, but he refused to remove the earring, asserting that it was a symbol of black pride, not of gang membership. The assistant principal talked to Brisco’s mother, advising her that her son would be suspended for 20 days if he did not remove the earring. Brisco’s mother supported her son’s position, and a 20-day suspension was imposed. Brisco and his mother, as guardian ad litem, filed suit in Federal District Court under 42 U. S. C. § 1983 and 28 U. S. C. § 1343, charging that Brisco had been suspended without due process of law in violation of the Fourteenth Amendment. The complaint sought declaratory and injunctive relief, together with actual and punitive damages in the amount of $5,000. Brisco was readmitted to school during the pendency of proceedings for a preliminary injunction after 17 days of his suspension. Piphus’ and Brisco’s cases were consolidated for trial and submitted on stipulated records. The District Court held that both students had been suspended without procedural due process. It also held that petitioners were not entitled to qualified immunity from damages under the second branch of" }, { "docid": "5659040", "title": "", "text": "or not they could point to anything similar in the past. The Foxworthy T-shirt, however, is clearly not in this category. It is essentially harmless on its face. . Plaintiffs maintain that even if the words and symbols were signifiers of the Hicks, there is no direct evidence that their wearing the T-shirt had or would cause any disruption. Such a showing, they argue, is required to justify a ban. In support of this position, plaintiffs cite Chalifoux v. New Caney Independent School District, 976 F.Supp. 659 (S.D.Tex.1997), a case discussed favorably by this court in Saxe, 240 F.3d at 211-12. In Chalifoux, the school banned rosary beads as gang symbols. Two students neither affiliated with nor identified as members of the gang in question wore rosaries for religious purposes, but were disciplined. The court found the students could not be prevented from wearing the rosaries under those circumstances. 976 F.Supp. at 667. The facts here are somewhat different. First, the rosaries at issue in Chalifoux implicated the religious freedom of the plaintiffs. Id. at 665. Second, in Chalifoux, it was clear that plaintiffs were not gang members, and there was no reason for anyone to think otherwise. Id. at 663. The record here does not reveal a similarly clear disassociation. See supra, at 4. . Both “hick” and \"redneck” can be used disparagingly, of course. But when they are used in this way, they offend the people labeled “hick” or “redneck.” . While the harassment policy may be said to regulate conduct, it clearly regulates speech, insofar as it specifically targets certain expression. . The Supreme Court has recognized that schools have a \"compelling interest in having an undisrupted school session conducive to the students' learning.” Grayned v. City of Rockford, 408 U.S. 104, 119, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). . As we discuss, even in the public school context, mere offensiveness does not qualify as \"disruptive” speech. . Here again is the relevant portion of the harassment policy: District employees and student(s) shall not racially harass or intimidate other students) or employee(s) by name calling, using" }, { "docid": "15312131", "title": "", "text": "the administrators of public colleges to classify students with respect to dress, appearance and behavior must be respected and preserved by the courts. However, the equal protection clause of the fourteenth amendment prohibits classification upon an unreasonable basis. This court is of the firm opinion that the classification of male students attending Jefferson State Junior College by their hair style is unreasonable and fails to pass constitutional muster. “It needs to be emphasized that the defendants have not sought to justify such classification for moral and social reasons. The only reason stated upon the hearing of this case was their understandable personal dislike of long hair on men students. The requirement that these plaintiffs cut their hair to conform to normal and conventional styles is just as unreasonable as would palpably be a requirement that all male students of the college wear their hair down over their ears and collars.” 299 F.Supp. at 1362. In Breen v. Kahl, supra, the Federal District Court struck down a rule governing the length of hair as violative of the due process clause of the Fourteenth Amendment. The court pointed to the lack of any direct evidence that the long hair distracted other students or in any way disrupted the learning process. In Griffin v. Tatum, supra, the court rejected the numerous reasons given by school authorities to justify a haircut rule. In holding that the haircut rule violated the Fourteenth Amendment, the court pointed out that school authorities could accomplish their purposes by methods other than having the students’ heads shorn. “The school authorities’ ‘justification,’ or the reasons they advance for the necessity for such a haircut rule, completely fail. If combing hair or passing combs in classes is distracting, the teachers, in the exercise of their authority, may stop this without requiring that the head be shorn. If there is congestion at the girl’s mirrors, or if the boys are late for classes because they linger in the restrooms grooming their hair, appropriate disciplinary measures may be taken to stop this without requiring a particular hair style. If there is any hygienic" }, { "docid": "15312130", "title": "", "text": "observed that long hair and beards are the “badge of hippies.” So they adopted a rule which would keep “these people” cf. their campus. It is interesting to note that none of the reasons given in justification of the rule relate to any disruptions on the San Jacinto Junior College campus. And, in fact, this record is completely devoid of evidence that any type of disruption has been occasioned by the wearing of beards on campus. Thus, the present case is distinguishable from Ferrell v. Dallas Independent School Dist., supra, which upheld a school regulation banning “Beatle”- type haircuts. Ferrell is replete with testimony of campus disruptions. Whereas in Zaehry v. Brown, supra, there was no testimony that the offending hair style had any effect upon the health, discipline, or decorum of the institution. The district judge found that the regulation in question was promulgated solely because the school administrators disliked what they considered exotic hair styles. In holding the regulation unconstitutional, the court said: “The wide latitude permitted legislatures of the states and therefore the administrators of public colleges to classify students with respect to dress, appearance and behavior must be respected and preserved by the courts. However, the equal protection clause of the fourteenth amendment prohibits classification upon an unreasonable basis. This court is of the firm opinion that the classification of male students attending Jefferson State Junior College by their hair style is unreasonable and fails to pass constitutional muster. “It needs to be emphasized that the defendants have not sought to justify such classification for moral and social reasons. The only reason stated upon the hearing of this case was their understandable personal dislike of long hair on men students. The requirement that these plaintiffs cut their hair to conform to normal and conventional styles is just as unreasonable as would palpably be a requirement that all male students of the college wear their hair down over their ears and collars.” 299 F.Supp. at 1362. In Breen v. Kahl, supra, the Federal District Court struck down a rule governing the length of hair as violative of" }, { "docid": "21069792", "title": "", "text": "akin to ‘pure speech’ ” — suggests that a person’s choice of dress or appearance in an ordinary context does not possess the communicative elements necessary to be considered speech-like conduct entitled to First Amendment protection. 393 U.S. at 507-08, 89 S.Ct. 733. See also Kelley, Comm’r, Suffolk County Police Dep’t v. Johnson, 425 U.S. 238, 245, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976) (discussing Supreme Court First Amendment precedents). Of course, there may exist contexts in which a particular style of dress may be a sufficient proxy for speech to enjoy full constitutional protection. A state court in Massachusetts, for example, found in Doe ex rel. Doe v. Yunits, 2000 WL 33162199 (Mass.Super.Oct.11, 2000), that a male high school student’s decision to wear traditionally female clothes to school as an expression of female gender identity was protected speech. Although not binding on us, this case illustrates the point. In Yunits, the plaintiffs dress was an expression of his clinically verified gender identity. This message was readily understood by others in his high school context, because it was such a break from the norm. It sent a clear and particular message about the plaintiffs gender identity. By contrast, a woman today wearing a dress or a skirt on the job does not automatically signal any particularized message about her culture or beliefs. Although appellant’s activity is expressive, it does not constitute the type of expressive conduct which would allow her to invoke the First Amendment in challenging the county’s regulation because the ordinary viewer would, glean no particularized message from appellant’s wearing of a skirt rather than pants as part of her uniform. Given that Zalewska’s conduct does not constitute expressive conduct entitled to First Amendment protection, we need not discuss whether the county impermissibly denied her that protection. See Johnson, 491 U.S. at 403, 109 S.Ct. 2533. Accordingly, the district court properly dismissed appellant’s First Amendment claim. B. Due Process 1. Liberty Interest in Appearance Zalewska further maintains that Sullivan County’s dress code deprived her of her liberty interest in personal appearance without due process of law in violation" }, { "docid": "3548802", "title": "", "text": "Ill.Dec. 68, 660 N.E.2d at 261 (police officers testified that the “best-known gang ‘colors’ were black and gold (Latin Kings and other People Nation affiliates) and blue and black (Folk Nation affiliates)”). Indeed, the colors red and blue are the colors of our flag and the colors of two prominent gangs: the Bloods and Crips. Baseball caps, gloves and bandannas are deemed gang related attire by high schools around the country, Paul D. Murphy, Restricting Gang Clothing in Public Schools: Does a Dress Code Violate a Student’s Right of Free Expression?, 64 S.Cal.L.Rev. 1321, 1328 (July 1991), as well as collegiate logos. Gaut, 214 Ill.Dec. 68, 660 N.E.2d at 261 (Duke University baseball cap is a Folk Nation emblem). A male student wearing an earring, Olesen v. Board of Educ. of Sch. Dist. No. 228, 676 F.Supp. 820, 821 (N.D.Ill.1987), or allowing a shoelace to go untied, Gaut, 214 Ill.Dec. 68, 660 N.E.2d at 261, is engaging in actions considered gang related. Even a student who innocently refers to classmates as “folks” or “people” is unwittingly speaking in the parlance of the Midwestern gangs “Vice Lords” and “Black Gangster Disciples.” Jt. App. at 86. In short, a male student walking the halls of a District school with untied shoelaces, a Duke University baseball cap and a cross earring potentially violates the District regulation in four ways. Accordingly, the District regulation violates the central purposes of the vagueness doctrine because it fails to provide adequate notice regarding unacceptable conduct and fails to offer clear guidance for those who apply it. A person of common intelligence must necessarily guess at the undefined meaning of “gang related activities.” See, e.g., Murphy, supra at 1356 (citing examples of high school gang regulations that offer “very specific” guidelines for proscribed behavior). The District regulation is void-for-vagueness. C. OVERBREADTH Stephenson also argues that the District regulation is overbroad. We need not address the merits of this claim, however, because we agree with Appellees, albeit for different reasons, that this issue is moot. Stephenson challenges the District regulation as facially overbroad. Appellant’s Br. at 22-23. “The First" }, { "docid": "7652240", "title": "", "text": "order affects such a right and, therefore, intermediate scrutiny is applicable. As noted previously, the plaintiffs concede that their spider web tattoos are not conveying any speech or message, but merely are related to personal appearance. The plaintiffs contend that their right to personal appearance is an “important, but not constitutional right.” However, having a visible tattoo devoid of any intended meaning while on-duty as a police officer cannot be said to be the exercise of an “important, but not constitutional, right,” as courts consistently have upheld the ability of public employers to regulate the appearance of their employees. See e.g., Kelley, Commissioner Suffolk County Police Dep’t v. Johnson, 425 U.S. 238, 245, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976) (“we have sustained comprehensive and substantial restrictions upon activities of both federal and state employees lying at the core of the First Amendment”); Lowman v. Davies, 704 F.2d 1044, 1046 (8th Cir.1983)(Lay, C.J., dissenting) (“It is well established that the state may regulate the personal appearance of its employees if the state has rational, nonarbitrary reasons for doing so”); see also Blau v. Fort Thomas Public School District, 401 F.3d 381 (6th Cir.2005) (rejecting a student’s challenge to the school dress code because “she does not wish to convey any particular message, but wishes only to wear clothes that she thinks ‘looks nice on her’ and that ‘she feels good in’ ”). This latitude has been recognized many times with clothing and appearance issues involving police officers. See e.g., Kelley, 425 U.S. at 245, 96 S.Ct. 1440 (1976) (noting that it was “highly significant” that the plaintiff subject to the restriction on personal appearance was a police officer and not a member of the public; police department’s regulations “infringe[d] on respondent’s freedom of choice in personal matters”); Riggs v. City of Fort Worth, 229 F.Supp.2d 572, 581 (N.D.Tex.2002) (“Courts have long held that ‘the city though its police chief has the right to promote a disciplined, identifiable, and impartial police force by maintaining its police uniform as a symbol of neutral government authority, free from expressions of personal bent or" }, { "docid": "13093863", "title": "", "text": "other students to be secure and left alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the school or the rights of other students. Id. at 504, 89 S.Ct. 733. Significantly, the Court emphasized that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Id. at 508, 89 S.Ct. 733. Under Tinker, then, regulation of student speech is generally permissible only when the speech would substantially disrupt or interfere with the work of the school or the rights of other students. As subsequent federal cases have made clear, Tinker requires á specific and significant fear of disruption, not just some remote apprehension of disturbance. In Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir.1992), for example, a middle school punished students who wore “SCAB” buttons to protest replacement teachers during a strike. Because the school had failed to present any evidence that the buttons were “inherently disruptive” to school activities, the court held that students could proceed with their First Amendment claim. In Chalifoux v. New Caney Independent School District, 976 F.Supp. 659 (S.D.Tex.1997), a high school student challenged his school’s policy against gang-related apparel. The school applied the ban to prohibit the plaintiff, a devout Catholic, from wearing a rosary to school on the ground that some gangs had adopted the rosary as then-identifying symbol. The court held that the ban failed to satisfy Tinker's substantial disruption test: [Although Plaintiffs wore them rosaries outside their shirts-for several months, they were never misidentified as gang members nor approached by gang members. There also was no evidence that they attracted the attention of other students because of their rosaries.... Accordingly, the Court finds that there was insufficient evidence of actual disruption at New Caney High School, or that there was substantial reason for NCISD to anticipate a disruption, to justify the infringement on Plaintiffs’ religiously-motivated speech. Chalifoux, 976 F.Supp. at 667. Finally, in Clark v. Dallas Independent School District, 806 F.Supp. 116, 120 (N.D.Tex.1992), the court held that a high school could not prohibit its" }, { "docid": "3548803", "title": "", "text": "unwittingly speaking in the parlance of the Midwestern gangs “Vice Lords” and “Black Gangster Disciples.” Jt. App. at 86. In short, a male student walking the halls of a District school with untied shoelaces, a Duke University baseball cap and a cross earring potentially violates the District regulation in four ways. Accordingly, the District regulation violates the central purposes of the vagueness doctrine because it fails to provide adequate notice regarding unacceptable conduct and fails to offer clear guidance for those who apply it. A person of common intelligence must necessarily guess at the undefined meaning of “gang related activities.” See, e.g., Murphy, supra at 1356 (citing examples of high school gang regulations that offer “very specific” guidelines for proscribed behavior). The District regulation is void-for-vagueness. C. OVERBREADTH Stephenson also argues that the District regulation is overbroad. We need not address the merits of this claim, however, because we agree with Appellees, albeit for different reasons, that this issue is moot. Stephenson challenges the District regulation as facially overbroad. Appellant’s Br. at 22-23. “The First Amendment doctrine of substantial overbreadth is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others.” Massachusetts v. Oakes, 491 U.S. 576, 581, 109 S.Ct. 2633, 2637, 105 L.Ed.2d 493 (1989). This exception protects the first amendment freedoms of other individuals, not before the court, whose speech may be chilled as a result of the regulation. Id. Stephenson argues that even if her tattoo does not represent speech protected by the first amendment, this exception to traditional standing requirements allows us to consider her over-breadth challenge. We disagree. As we noted, supra at 1307, the District amended the regulation. The Supreme Court holds that “overbreadth analysis is inappropriate if the statute being challenged has been amended or repealed.” Oakes, 491 U.S. at 582, 109 S.Ct. at 2637. Accordingly, Stephenson’s facial overbreadth challenge to the District regulation is moot. We also decline to hold the regulation over-broad as applied to Stephenson because her tattoo" } ]

[ { "docid": "9838757", "title": "", "text": "FTDA must fail because the FTDA does not apply retroactively; (3) Enterprise met its burden of proof on dilution and/or likelihood of dilution; or (4) Enterprise met its burden of proof by clear and convincing evidence that Advantage abandoned its rights in its slogan. The district court dismissed Advantage’s pending motions for summary judgment as moot. Enterprise then filed a motion under FRCP 52 and 59, in which it requested that the district court: (1) amend its conclusions of law and reach new conclusions by applying the statutory factors on fame under the FTDA and (2) enter judgment in favor of Enterprise on the “fame” requirements of the FTDA and the Arkansas and New Mexico anti-dilution statutes, and on the less stringent “distinctiveness” standard of the Texas and Louisiana anti-dilution statutes. The district court denied Enterprise’s post-judgment motion, and Enterprise appealed. DISCUSSION To prevail on its federal dilution claim, Enterprise must prove that its slogan is “famous and distinctive;” that Advantage adopted its mark after Enterprise’s had become “famous and distinctive;” and that Advantage caused dilution of Enterprise’s mark. Westchester Me dia v. PRL USA Holdings, Inc., 214 F.3d 658, 670 (5th Cir.2000). Enterprise must prove actual economic harm. See id. The New Mexico and Arkansas anti-dilution statutes also require that the mark be famous. See AR ST § 4-71-213 and NM ST § 57-3B-15. The district court disposed of the federal dilution claim on the ground that Enterprise’s slogan was insufficiently famous for the states’ or the FTDA’s anti-dilution protections to attach. It conducted an impressive review of dilution law and noted that the FTDA provides a nonexclusive list of factors that courts may consider in deciding whether a mark is distinctive and famous for dilution purposes. To the extent that the district court’s opinion can be read to suggest that Enterprise needed to prove fame beyond its market, we disagree. Rather, we agree with the Seventh Circuit, which has rejected this reading of the statute. See Syndicate Sales Inc. v. Hampshire Paper Corp., 192 F.3d 633, 640 (7th Cir.1999). See also Restatement (Third) Of Unfair Competition § 25" } ]

[ { "docid": "13677722", "title": "", "text": "magazines, and tradeshow promotions”). This evidence supported an inference the mark was recognized by the general public. Id. The court noted that the “at-issue marks ultimately may be found [at trial] to possess only a degree of ‘niche fame’ ” was insufficient to support a federal claim for trademark dilution. Id. at 450. But it concluded the “[p]laintiff has shown ‘more than a mere scintilla of evidence’ of fame, which is a sufficient quantum of proof to submit the question to the finder of fact.” Id. The plaintiffs in TCPIP failed to produce sufficient evidence their mark THE CHILDREN’S PLACE was famous. 244 F.3d at 98 (vacating a preliminary injunction, but “express[ing] no view whether TCPIP may be capable of showing at trial that its mark is ‘famous’ within the meaning of the statute, if it submits appropriate evidence”). The Second Circuit found a mere accounting of $280 million in revenue and “tens of thousands” of dollars spent in advertising was insufficient to show fame because there was no evidence of “how many millions, when expended or how effectively” and no press accounts, consumer surveys or other evidence of fame. Id. at 99. The complaint alleges the mark has been used for more than 60 years with “some of the most famous designs of the 20th century.” Complaint at ¶41. Appended to the complaint is a copy of Plaintiffs website showing images of GEORGE NELSON furnishings on the cover of Life magazine, in the 1984 World’s Fair, and in the 1959 American National Exhibition in Moscow. (ECF No. 1-5). The complaint also alleges fame through numerous awards recognizing the designs, and numerous books about the GEORGE NELSON designs. Complaint at ¶¶ 10-11. The complaint appends a copy of Defendant’s website which claims “the George Nelson Bubble Lamp ... is a tried-and-true standard of the modern vocabulary.” (ECF No. 1-5). As in Savin, publication in well-known national magazines supports a showing the mark is famous. Unlike TCPIP, the complaint points to specific publications and alleges the national, and even global, renown of the marks. In addition, the corn-plaint alleges the mark" }, { "docid": "10067257", "title": "", "text": "the domain name to Panavision. Id. On appeal from the district court’s award of summary judgment in Panavision’s favor, the Ninth Circuit affirmed, focusing on the FTDA’s “commercial use” and “dilution” elements. (a) “Commercial use” With regard to the commercial use requirement, the court concluded that “[i]t does not matter that [Toeppen] did not attach the marks to a product. [His] commercial use was his attempt to sell the trademarks themselves.” Id. at 1325. A later case addressing more innocuous facts, elaborated on this holding. In Avery Dennison Corporation v. Sumpton, 189 F.3d 868 (9th Cir.1999), the defendant Jerry Sumpton registered thousands of domain name combinations — including “avery.net” and “dennison.net” — • for use in his business of providing vanity email addresses to Internet users. Id. at 872. The plaintiff, Avery Dennison Corporation (“Avery Dennison”), sold office products and industrial fasteners under the trademarks AVERY and DENNISON, respectively, and desired the domain names for its own use. Id. at 873. When Avery Dennison brought suit for trademark dilution, the district court — following the Panavision analysis — granted summary judgment in Avery Dennison’s favor. Avery Dennison Corp. v. Sumpton, 999 F.Supp. 1337, 1340 (C.D.Cal.1998). On appeal, the Ninth Circuit reversed, distinguishing Sumpton’s “commercial use” from that in Panavision: Commercial use under the Federal Trademark Dilution Act requires the defendant to be using the trademark as a trademark, capitalizing on its trademark status. Courts have phrased this requirement in various ways.... In our Panavision decision, we considered the defendant’s “attempt to sell the trademarks themselves.” All evidence in the record indicates that [Sumpton] register[s] common surnames in domain-name combinations and license[s] e-mail addresses using those surnames, with the consequent intent to capitalize on the surname status of “Avery” and “Dennison.” [Sumpton] do[es] not use trademarks qua trademarks as required by the caselaw to establish commercial use. Rather, [he] use[s] words that happen to be trademarks for their non-trademark value. Avery Dennison, 189 F.3d at 880. Because Sumpton had a legitimate, non- ■ trademark use for the words “Avery” and “Dennison,” the court concluded that he, not Avery Dennison, was entitled" }, { "docid": "9912685", "title": "", "text": "in dismissing the FTDA claim because Plaintiff had “failed to tender admissible evidence to prima facie prove any of [the requisite] elements” of a claim under the FTDA. The FTDA “permits the owner of a qualified, famous mark to enjoin junior uses throughout commerce, regardless of the absence of competition or confusion.” TCPIP Holding Co. v. Haar Communications Inc., 244 F.3d 88, 95 (2d Cir.2001); see 15 U.S.C. § 1127. Indeed, “[o]ne circuit has characterized the Dilution Act as coming ‘very close to granting rights in gross in a trademark.’ ” TCPIP Holding Co., 244 F.3d at 95 (quoting Avery Dennison Corp. v. Sumpton, 189 F.3d 868, 875 (9th Cir.1999)). Specifically, the FTDA provides that “[t]he owner of a famous mark shall be entitled.... to an injunction against another person’s commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark.” 15 U.S.C. § 1125(c)(1). Thus, to establish a violation of the FTDA, a plaintiff must show that: (1) its mark is famous; (2) the defendant is making commercial use of the mark in commerce; (3) the defendant's use began after the mark became famous; and (4) the defendant's use of the mark dilutes the quality of the mark by diminishing the capacity of the mark to identity and distinguish goods and services. Pinehurst Inc. v. Wick, 256 F.Supp.2d 424, 431 (M.D.N.C.2003); see 15 U.S.C. § 1125(c); Ringling Bros. v. Utah Div. of Travel Dev., 170 F.3d 449, 452 (4th Cir.1999); Panavision Int'l L.P. v. Toeppe, 141 F.3d 1316, 1324 (9th Cir.1998). The Supreme Court has made clear that a plaintiff seeking to take advantage of the broad rights afforded under the FTDA must show, as an essential element of an FTDA claim, \"actual dilution, rather than a likelihood of dilution.\" Moseley v. V. Secret Catalogue, Inc., 537 U.S. 418, 433, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003). The theory of \"dilution by blurring,\" the form of dilution particularly relevant to the case at bar, has been described by Professor McCarthy" }, { "docid": "9912690", "title": "", "text": "WL 22451731, at *14. Although Defendants chose not to cross-appeal this conclusion, they nonetheless contend that the lack of inherent distinctiveness and fame in Plaintiffs marks provides an alternate basis upon which this Court should affirm the summary judgment granted by the District Court. Of course, “we may affirm the [District [Cjourt’s order of summary judgment on any ground that finds adequate support in the record.” Eichelberg v. Nat’l R.R. Passenger Corp., 57 F.3d 1179, 1186 n. 6 (2d Cir.1995). We need not exercise that power here, however, as we see no error in the District ■ Court’s conclusion that Plaintiff has raised genuine issues of fact with regard to the fame and distinctiveness of its marks. With respect to fame, or acquired distinctiveness, we recognize that the at-issue marks ultimately may be found to possess only a degree of “niche ’ fame.” Nevertheless, we agree with the District Court’s conclusion that Plaintiff has shown “more than a mere scintilla of evidence” of fame, which is a sufficient quantum of proof to submit the question to the finder of fact. 2003 WL 22451731, at *14. In particular, the court found that: [Plaintiff] spent over $20 million on advertising in 2002 and has achieved annual revenues of $675 million. Further, [Plaintiff’s products and services are regularly featured in print advertisements, trade magazines[,] and tradesh-ow promotions. Plaintiffs advertisements have appeared in well known magazines such as Newsweek, Time, and Business Week. Id. (citations omitted). These are sufficient indicators of fame to withstand a summary judgment challenge to a claim under the FTDA. Cf. Nabisco, Inc. v. PF Brands, Inc., 50 F.Supp.2d 188, 202 (S.D.N.Y.1999) (finding top ranking sales dollars and advertising expenses of more than $120 million in a three-year period to be significant indicators of the fame of the mark), aff'd, 191 F.3d 208 (2d Cir.1999). With regard to inherent distinctiveness, the District Court was correct to conclude that Plaintiffs marks are entitled to a presumption of inherent distinctiveness by virtue of them incontestability. See Sporty’s Farm, 202 F.3d at 497; Equine Techs., Inc. v. Equitechnology, Inc., 68 F.3d 542, 545" }, { "docid": "5535807", "title": "", "text": "intended to confer on marks that have enjoyed only brief fame in a small part of the country, or among a small segment of the population, the power to enjoin all other users throughout the nation in all realms of commerce.” TCPIP Holding Co., Inc. v. Haar Communications, Inc., 244 F.3d 88, 99 (2d. Cir.2001). The House Report accompanying the FTDA cited Dupont, Buick and Kodak as marks with sufficient fame among consumers to be eligible for protection under the FTDA, see-H.R.Rep. No. 104-374, at 3 (1995). The well-known Pepperidge Farm Goldfish cracker has received dilution protection under the FTDA, see Nabisco, 191 F.3d 208, and the widely-recognized Victoria’s Secret national chain of lingerie stores has recently been the subject of an FTDA case before the Supreme Court. See Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003). While Best Cellars has demonstrated the inherent distinctiveness of its trade dress under the summary judgment standard and thus meets the first factor of the FTDA’s fame test, it has not demonstrated a degree of consumer awareness of the trade dress sufficient to establish its fame for purposes of the Nabisco test. Best Cellars provides no marketing studies or other indicia of consumer awareness of its trade dress. There is no evidence of a nationwide advertising campaign emphasizing the trade dress, and as elaborated in the previous section discussing strength of the trade dress, there is little evidence that the interior decor is widely known or associated by consumers with Best Cellars, beyond a relatively narrow group of professionals in the wine and interior design industries. Best Cellars has used its mark for some 6 years, in an area geographically limited principally to certain parts of New York, Boston and Seattle. There is no simply no evidence in the record to support plaintiffs claim of the “wide, national consumer acceptance .of its stores’ look.” (Pl.’s Mem. Supp. Summ. J. at 38). Examining all evidence on the record, and resolving any ambiguitiés in favor of plaintiff, it is fatuous to claim that the distinctive look of" }, { "docid": "23501082", "title": "", "text": "difficulty of answering all questions prospectively, legislatures at times deliberately use a vague term, like “combination in restraint of trade,” or “famous,” knowing full well that its meaning is not precisely communicated, but counting on courts to understand the legislature’s intentions and to interpret the word or phrase in a sensible manner to carry out those intentions. It seems most unlikely that Congress intended to confer on marks that have enjoyed only brief fame in a small part of the country, or among a small segment of the population, the power to enjoin all other users throughout the nation in all realms of commerce. The examples of eligible “famous marks” given in the House Report — Dupont, Buick, and Kodak, see H.R.Rep. No. 104-374, at 3 (1995), reprinted in 1995 U.S.C.C.A.N. 1029, 1030 — are marks that for the major part of the century have been household words throughout the United States. They are representative of the best known marks in commerce. Once again, we recognize that examples in a legislative report cannot be taken as defining the limits of a statute’s coverage. Putting together the extraordinary power the Act confers on a “famous” mark and the improbability that Congress intended to grant such outright exclusivity to marks that are famous in only a small area or segment of the nation, with the hints to be gleaned from the House Report, we think Congress envisioned that marks would qualify as “famous” only if they carried a substantial degree of fame. We do not believe TCPIP’s submissions to the district court demonstrated the degree of fame necessary to qualify. The submissions were quite sketchy. According to TCPIP’s affidavit, in 1999 it operated 228 retail stores in 27 states under the mark “The Children’s Place,” and achieved sales in 1998 of $280 million, having grown from $100 million in sales though 87 stores in 1994. Over the past decade, the affidavit asserts, TCPIP spent “tens of millions of dollars” advertising its mark, but does not tell how many millions, when expended, or how effectively. Nor did TCPIP submit consumer surveys, press accounts," }, { "docid": "10067256", "title": "", "text": "and (2) because the EFF Defendants use of the Ford marks is in connection with Ford’s own goods and services. For the following reasons, both theories must be rejected. a. Selling the trademarks themselves Ford first argues that the “goods or services” requirement is satisfied because the EFF Defendants are selling the trademarks themselves. In support of this proposition, Ford cites two cases: (1) Panavision International, L.P. v. Toeppen, 141 F.3d 1316 (9th Cir.1998) and (2) Boston Professional Hockey Association, Inc. v. Dallas Cap & Emblem Manufacturing, Inc., 510 F.2d 1004 (5th Cir.1975). Each is addressed in turn below. (i) Panavision Panavision was one of the earliest cases to apply the FTDA’s anti-dilution provisions against domain name cybersquatting. The defendant in that case — Dennis Toep-pen of Intermatic fame — was sued by Panavision International, L.P. (“Panavision”) for trademark dilution after he registered the PANAVISION mark as a domain name and used it to display online photographs of the city Pana, Illinois. Id. at 1319. “Incidentally,” Toeppen also sought $13,000.00 as an incentive to release the domain name to Panavision. Id. On appeal from the district court’s award of summary judgment in Panavision’s favor, the Ninth Circuit affirmed, focusing on the FTDA’s “commercial use” and “dilution” elements. (a) “Commercial use” With regard to the commercial use requirement, the court concluded that “[i]t does not matter that [Toeppen] did not attach the marks to a product. [His] commercial use was his attempt to sell the trademarks themselves.” Id. at 1325. A later case addressing more innocuous facts, elaborated on this holding. In Avery Dennison Corporation v. Sumpton, 189 F.3d 868 (9th Cir.1999), the defendant Jerry Sumpton registered thousands of domain name combinations — including “avery.net” and “dennison.net” — • for use in his business of providing vanity email addresses to Internet users. Id. at 872. The plaintiff, Avery Dennison Corporation (“Avery Dennison”), sold office products and industrial fasteners under the trademarks AVERY and DENNISON, respectively, and desired the domain names for its own use. Id. at 873. When Avery Dennison brought suit for trademark dilution, the district court — following the" }, { "docid": "9912691", "title": "", "text": "to the finder of fact. 2003 WL 22451731, at *14. In particular, the court found that: [Plaintiff] spent over $20 million on advertising in 2002 and has achieved annual revenues of $675 million. Further, [Plaintiff’s products and services are regularly featured in print advertisements, trade magazines[,] and tradesh-ow promotions. Plaintiffs advertisements have appeared in well known magazines such as Newsweek, Time, and Business Week. Id. (citations omitted). These are sufficient indicators of fame to withstand a summary judgment challenge to a claim under the FTDA. Cf. Nabisco, Inc. v. PF Brands, Inc., 50 F.Supp.2d 188, 202 (S.D.N.Y.1999) (finding top ranking sales dollars and advertising expenses of more than $120 million in a three-year period to be significant indicators of the fame of the mark), aff'd, 191 F.3d 208 (2d Cir.1999). With regard to inherent distinctiveness, the District Court was correct to conclude that Plaintiffs marks are entitled to a presumption of inherent distinctiveness by virtue of them incontestability. See Sporty’s Farm, 202 F.3d at 497; Equine Techs., Inc. v. Equitechnology, Inc., 68 F.3d 542, 545 (1st Cir.1995). Defendants assert that this presumption should not apply to the marks at issue because they are “merely descriptive” marks, which can never possess inherent distinctiveness. See TCPIP Holding Co., 244 F.3d at 96 (“[Djescriptive marks, which possess no distinctive quality, or at best a minimal degree, do not qualify for the [Dilution] Act’s protection.”). Defendants’ argument is unavailing, however, because Plaintiffs marks are not, as a matter of law, merely descriptive marks. While it is true that “Savin” is a surname and that Savin Corp. was named after Robert Savin, the brother-in-law of Plaintiffs founder, the word “savin” also has a dictionary meaning. Admittedly, the “Savin” mark is not as obviously distinctive as, for example, “Honda” or “Acu-ra.” But it is still entirely possible for a reasonable fact-finder to determine that the “Savin” mark possesses a sufficient degree of distinctiveness to sustain a finding of dilution, especially given that Plaintiffs marks are “not patently used as a surname.” Lane Capital Mgmt., Inc. v. Lane Capital Mgmt., Inc., 192 F.3d 337, 347 (2d Cir.1999);" }, { "docid": "23501053", "title": "", "text": "LEVAL, Circuit Judge: Defendants Haar Communications Inc.' and Richard Haar appeal from the order of the United States District Court for the Southern District of New York (Richard Conway Casey, District Judge), preliminarily enjoining them from using 81 internet domain names consisting of variations of the words “The Children’s Place.” The district court held that these names were likely to dilute plaintiff TCPIP Holding Company’s trademark and service mark, “The Children’s Place,” in violation of the Federal Trademark Anti Dilution Act (“Dilution Act” or “FTDA”), 15 U.S.C. § 1125(c), and to infringe plaintiffs mark in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). To the extent the court’s ruling was on the basis of the Dilution Act, it is vacated. Because plaintiffs mark, “The Children’s Place,” for a store selling children’s clothes, is descriptive and lacks inherent distinctiveness, it does not qualify for the protection of the Act; in addition, plaintiff failed to show that its mark is “famous,” as required by the Act. To the extent the injunction was granted under the Lanham Act on the basis of likelihood of confusion, we affirm as to a number of the defendants’ domain names that are confusingly similar to plaintiffs mark. However, some of the defendants’ domain names are sufficiently different from plaintiffs mark, especially given its weak, descriptive character, that no infringement is properly found. BACKGROUND 1. Facts Plaintiff, TCPIP Holding Company, Inc. (“TCPIP”), operates a chain of stores, primarily in the eastern half of the United States, selling children’s clothing and accessories. Plaintiffs stores operate under the registered mark, “The Children’s Place.” The articles sold in the stores are also labeled “The Children’s Place.” Plaintiff has conducted this activity under its mark for about thirty years. Its has grown from 87 stores in 1994 to 228 in 1998, and its sales volume has increased during this same period from approximately $100 million to $280 million. In August 1996, TCPIP registered two internet domain names, “tcpkids.com” and “childrensplace.com,” which can be used to gain access to its web site, though which it sells goods bearing the" }, { "docid": "3910980", "title": "", "text": "and causes dilution of the distinctive quality of the mark. 15 U.S.C. § 1125(c)(1). In an action under this statute, the plaintiff has the burden of proof to show (1) that it owns a famous mark, (2) that the defendant is making commercial use of the mark in commerce, (3) that the defendant adopted its mark after the plaintiffs mark became famous, and (4) that the defendant’s mark dilutes the plaintiffs famous mark. Avery Dennison Corp. v. Sumpton, 189 F.3d 868 (9th Cir.1999). Here, defendant does not contest factors 2 or 3, because Clue Computing clearly chose the “clue.com” domain name for commercial use in commerce after Hasbro’s mark had risen to whatever level of fame it has acquired. Nor does defendant contest Hasbro’s ownership of the CLUE ® mark. As a result, I will focus on the questions whether Hasbro’s mark is a “famous mark” within the meaning of the statute and whether Clue Computing’s use of the “clue.com” domain name dilutes the distinctiveness of the mark. I will also briefly examine an additional element established by the statute, whether “the principles of equity” entitle Hasbro to an injunction. 15 U.S.C. § 1125(c)(1); see Avery Dennison Corp. v. Sumpton, 999 F.Supp. 1337, 1339 (C.D.Cal.1998), rev’d on other grounds, 189 F.3d 868 (9th Cir.1999). a. Fame of the Mark The FTDA provides a non-exhaustive list of factors to consider in order to determine whether a mark is “distinctive and famous”: (A) the degree of inherent or acquired distinctiveness of the mark; (B) the duration and extent of use of the mark in connection with the goods or services with which the mark is used; (C) the duration and extent of advertising and publicity of the mark; (D) the geographical extent of the trading area in which the mark is used; (E) the channels of trade for the goods or services with which the mark is used; (F) the degree of recognition of the mark in the trading areas and channels of trade used by the mark’s owner and the person against whom the injunction is sought; (G) the nature and" }, { "docid": "9912684", "title": "", "text": "find that actual dilution had occurred. Id. at *14. The court did find, however, that Plaintiff had produced sufficient evidence to create a triable issue of fact on the other contested elements of an FTDA claim — the distinctiveness and fame of the senior mark. Id. Finally, with respect to the state-law dilution claim, the court found that “[t]he standards for dilution under Section 360-1 [were] essentially the same as that under [the FTDA]”; that Plaintiff had “failed to produce sufficient evidence to create a triable issue under the FTDA”; and, thus, that “the Section 360-1 claim also fail[ed].” Id. at *16 (internal quotation marks omitted). Final judgment was entered on October 31, 2003, dismissing the Complaint, and this timely appeal followed. DISCUSSION I. The FTDA Claim Plaintiff argues that the District Court “erred in holding. that, even though the marks at issue are identical, [Plaintiff] was required to demonstrate circumstantial evidence of actual dilution ... to maintain its claim under the [FTDA].” Defendants, on the other hand, argue that the District Court was correct in dismissing the FTDA claim because Plaintiff had “failed to tender admissible evidence to prima facie prove any of [the requisite] elements” of a claim under the FTDA. The FTDA “permits the owner of a qualified, famous mark to enjoin junior uses throughout commerce, regardless of the absence of competition or confusion.” TCPIP Holding Co. v. Haar Communications Inc., 244 F.3d 88, 95 (2d Cir.2001); see 15 U.S.C. § 1127. Indeed, “[o]ne circuit has characterized the Dilution Act as coming ‘very close to granting rights in gross in a trademark.’ ” TCPIP Holding Co., 244 F.3d at 95 (quoting Avery Dennison Corp. v. Sumpton, 189 F.3d 868, 875 (9th Cir.1999)). Specifically, the FTDA provides that “[t]he owner of a famous mark shall be entitled.... to an injunction against another person’s commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark.” 15 U.S.C. § 1125(c)(1). Thus, to establish a violation of the FTDA, a plaintiff must" }, { "docid": "3910981", "title": "", "text": "element established by the statute, whether “the principles of equity” entitle Hasbro to an injunction. 15 U.S.C. § 1125(c)(1); see Avery Dennison Corp. v. Sumpton, 999 F.Supp. 1337, 1339 (C.D.Cal.1998), rev’d on other grounds, 189 F.3d 868 (9th Cir.1999). a. Fame of the Mark The FTDA provides a non-exhaustive list of factors to consider in order to determine whether a mark is “distinctive and famous”: (A) the degree of inherent or acquired distinctiveness of the mark; (B) the duration and extent of use of the mark in connection with the goods or services with which the mark is used; (C) the duration and extent of advertising and publicity of the mark; (D) the geographical extent of the trading area in which the mark is used; (E) the channels of trade for the goods or services with which the mark is used; (F) the degree of recognition of the mark in the trading areas and channels of trade used by the mark’s owner and the person against whom the injunction is sought; (G) the nature and extent of use of the same or similar marks by third parties; and (H) whether the mark was registered .... 15 U.S.C. § 1125(c)(1). Review of this list reveals that the “determination whether a mark is famous and distinctive under Section 43(c) [of the Lanham Act, 15 U.S.C. § 1125(c) ] is similar to the analysis for strength of the mark for trademark infringement purposes.” Trustees of Columbia Univ. v. Columbia/HCA Healthcare Corp., 964 F.Supp. 733, 749 (S.D.N.Y.1997). However, the First Circuit has made clear that “a great deal more” is required to show fame of the mark than to show the secondary meaning required for infringement protection. See Lund, 163 F.3d at 47 (citation omitted). As noted above, Hasbro has used the CLUE ® mark for many years and has spent millions of dollars advertising the CLUE game, which has gained widespread recognition in the United States and abroad. (Riehl Deel. ¶¶ 3-12, Exs. A-D.) In addition, the CLUE ® mark was federally registered on the principal register in 1950, (McCann Deck, Ex. A)," }, { "docid": "2855783", "title": "", "text": "$103 million in annual sales derived from goods bearing slogan and over $19 million in annual advertising expenditures); American Exp. Co. v. CFK, Inc., 947 F.Supp. 310, 312 (E.D.Mich.1996)(finding slogan “Don’t Leave Home Without It” famous; over $600 million in marketing expenditures 'over six years). . See, e.g., Avery Dennison Corp. v. Sumpton, 189 F.3d 868 (9th Cir.1999); Carnival Corp. v. SeaEscape Casino Cruises, Inc., 74 F.Supp.2d 1261, 1271 (S.D.Fla.1999)(\"the word ‘fun’ is used by many other businesses in the travel, gaming, and entertainment industries ... cut[ting] against Carnival’s dilution claim”); Michael Caruso & Co., Inc. v. Estefan Enterprises, Inc., 994 F.Supp. 1454, 1463 (S.D.Fla.1998)(extensive third party use of word \"bongo” undermines inherent distinctiveness of mark), aff'd without opinion, 166 F.3d 353 (11th Cir.1998); Hershey, 998 F.Supp. at 517 (finding trade dress not sufficiently famous and noting several examples of third party’s trade dress in food industry similar to plaintiff's color combination and lettering); Sports Authority v. Abercrombie & Fitch, Inc., 965 F.Supp. 925, 941 (E.D.Mich.1997)(third-party use of \"authority,” whether or not in the relevant market, diminishes any distinctive 'or famous aspects of mark rendering it \"not so famous as to deserve protection” under the FTDA); Trustees of Columbia University v. Columbia/HCA Healthcare Corp., 964 F.Supp. 733, 744 & 750 (S.D.N.Y.1997)(fame of mark \"Columbia” for healthcare services \"has been seriously undermined by third party use of the same or similar marks” both within the health care industry and in other industries); Star Markets, 950 F.Supp. at 1035 (noting multiple third party uses of \"Star” and \"Star Markets” in food industry and unrelated industries); Golden Bear Int’l, Inc. v. Bear U.S.A., Inc., 969 F.Supp. 742, 749 (N.D.Ga.1996)(third parties extensively used both the word \"bear” and a bear design in connection with the sale of sporting goods and clothes). . My disagreement with the majority rests primarily on my conclusion that Times Mirror has not come close to satisfying the threshold requirement of fame to qualify for protection under the FTDA. It goes without saying, therefore, that I would also disagree that Times Mirror was likely to prevail on its dilution claim." }, { "docid": "23501083", "title": "", "text": "as defining the limits of a statute’s coverage. Putting together the extraordinary power the Act confers on a “famous” mark and the improbability that Congress intended to grant such outright exclusivity to marks that are famous in only a small area or segment of the nation, with the hints to be gleaned from the House Report, we think Congress envisioned that marks would qualify as “famous” only if they carried a substantial degree of fame. We do not believe TCPIP’s submissions to the district court demonstrated the degree of fame necessary to qualify. The submissions were quite sketchy. According to TCPIP’s affidavit, in 1999 it operated 228 retail stores in 27 states under the mark “The Children’s Place,” and achieved sales in 1998 of $280 million, having grown from $100 million in sales though 87 stores in 1994. Over the past decade, the affidavit asserts, TCPIP spent “tens of millions of dollars” advertising its mark, but does not tell how many millions, when expended, or how effectively. Nor did TCPIP submit consumer surveys, press accounts, or other evidence of fame. The affidavit gives no statistics of any kind pertaining to any year earlier than 1994. While it asserts that the plaintiff (and its. predecessors) have used the mark continuously and exclusively for thirty years, it gives no further information — apart from unsubstantiated conelusory phrases like “the mark The Children’s Place has been widely recognized by American consumers”— that would enable a court to determine the extent or dimension of public recognition of the mark and whether it has fame sufficient to meet the requirement of the Act. While the information given undoubtedly shows considerable commercial success and growth, the aggregate sales under the mark since it originated (which have not been furnished to us) may well not equal the sales of Dupont, Buick, or Kodak in any given month. We express no view whether TCPIP may be capable of showing at trial that its mark is “famous” within the meaning of the statute, if it submits appropriate evidence. But in its motion for preliminary injunction, it did not make" }, { "docid": "2855756", "title": "", "text": "868 (9th Cir.1999). There, Avery Dennison, the seller of office supplies and industrial fasteners, sued an Internet email business which offered “vanity” e-mail addresses, alleging that defendant’s maintenance of the domain name registrations and <dennison.net> diluted Avery Denni-son’s trademarks. The “Avery” mark had been in continuous use since the 1930s and had been registered since 1963. The “Dennison” mark had been in continuous use since the late 1800s and registered since 1908. See Avery Dennison, 189 F.3d at 873. Avery Dennison’s annual advertising expenditures exceeded $5 million, and its annual sales reached $3 billion (although no evidence indicated what percentage of these dollar figures applied exclusively to the “Avery” or “Dennison” trademarks as opposed to the company’s other marks). See id. Avery Dennison also maintained its own website. After reviewing dilution theory and the legislative intent behind the FTDA, the Court emphasized the role of the fame requirement in “reinstating the balance” in the Lanham Act to avoid “over-protecting trademarks, at the expense of potential non-infringing uses.” Id. at 875. Despite the fact that the registered marks had acquired distinctiveness and that four of the eight statutory fame factors favored a finding that the marks were famous, the Ninth Circuit held that, as a matter of law, Avery Dennison had failed to meet its burden of proving fame for two reasons. Id. at 876-77. First, while recognizing that fame in a “specialized market segment” might be adequate if the “diluting uses are directed narrowly at the same market segment,” the Court noted that Avery Dennison provided no evidence of customer overlap or that defendant’s customers possessed any degree of recognition of plaintiffs marks. Id. at 877-78. Second, widespread third-party use of the names “Avery” and “Dennison” undermined the famousness of the marks. Id. at 878. Thus, the Court held that the marks were not entitled to protection under the FTDA. See also I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 46 & 49 (1st Cir.1998)(finding mark not famous and noting “mark [must] be truly promi nent and renowned”; “courts should be discriminating and selective in categorizing a mark" }, { "docid": "6797652", "title": "", "text": "of potential non-infringing uses.” 189 F.3d at 875. Further, the Avery court chided Avery Denni-son for not providing evidence showing that “customers in general have any brand association” with Avery Dennison’s marks. Id. at 879 (emphasis added). In many cases, the list of famousness factors contained in the statute can be quite useful in assisting a fact-finder to determine whether a mark is famous. § 1125(c)(1)(A) to (H). But the party seeking protection must initially make at least a minimal showing of the requisite level of fame. In this case, Trek has presented no evidence that its TREK mark has achieved fame among the general consuming public, as opposed to simply among bicycle enthusiasts. The closest Trek has come to demonstrating this type of fame has been to produce evidence showing that the champion bicycle racer Lance Armstrong has often been pictured with a Trek bicycle in prominent displays, such as the front page of large circulation newspapers and on Wheaties boxes. This incidental appearance of a Trek bicycle does not by itself constitute evidence that the bicycle brand is famous. Many products receive broad incidental media coverage. Such promotion does not lead to the conclusion that their trademarks have become a part of the collective national consciousness. On the other hand, surveys showing that a large percentage of the general public recognizes the brand, press accounts about the popularity of the brand, or pop-culture references involving the brand would provide evidence of fame. TCPIP, 244 F.3d at 99; see also Mattel, 296 F.3d at 903 (noting that the commercial success of the Barbie Girl song establishes the fame of the Barbie mark.) Because TREK has produced no evidence from which a reasonable fact-finder could find that TREK is famous among members of the general consuming public, we conclude that, for reasons different from those given by the district court, Trek’s dilution cause of action cannot succeed. Summary judgment was properly granted to OrbiTrek on that cause of action. III. Attorney Fees As we reverse the judgment for Thane and remand this case to the district court for further proceedings," }, { "docid": "13677721", "title": "", "text": "designation of source of the goods or services of the mark’s owner.” 15 U.S.C.A. § 1125(c)(2). In determining whether a mark possesses the requisite degree of recognition, the court may consider all relevant factors, including the following: (i) The duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties. (ii) The amount, volume, and geographic extent of sales of goods or services offered under the mark. (iii) The extent of actual recognition of the mark. (iv) Whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register. Id. The Second Circuit found there was sufficient evidence the SAVIN mark was famous to survive summary judgment because the evidence showed the plaintiff earned $674 million in revenues and in 2002 alone it spent $20 million in advertising the SAVIN mark in well-known, national publications. Savin, 391 F.3d at 450 (noting the advertisements were “regularly featured in print and television advertisements, trade magazines, and tradeshow promotions”). This evidence supported an inference the mark was recognized by the general public. Id. The court noted that the “at-issue marks ultimately may be found [at trial] to possess only a degree of ‘niche fame’ ” was insufficient to support a federal claim for trademark dilution. Id. at 450. But it concluded the “[p]laintiff has shown ‘more than a mere scintilla of evidence’ of fame, which is a sufficient quantum of proof to submit the question to the finder of fact.” Id. The plaintiffs in TCPIP failed to produce sufficient evidence their mark THE CHILDREN’S PLACE was famous. 244 F.3d at 98 (vacating a preliminary injunction, but “express[ing] no view whether TCPIP may be capable of showing at trial that its mark is ‘famous’ within the meaning of the statute, if it submits appropriate evidence”). The Second Circuit found a mere accounting of $280 million in revenue and “tens of thousands” of dollars spent in advertising was insufficient to show fame because there was no evidence of “how many millions, when" }, { "docid": "13677720", "title": "", "text": "588 F.3d at 105 (internal citations omitted). a. Distinctive and Famous Under federal law, a higher degree of distinctiveness is required for dilution protection than to show a protecta-ble interest for trademark infringement. TCPIP Holding, 244 F.3d at 95-96 (noting many descriptive marks have become famous, but are not sufficiently distinctive for protection under the Lanham Act, such as “American, National, Continental, Metropolitan ... and so forth.”). “The threshold finding of distinctiveness ... is a necessary, but not sufficient, element of fame.” Nabisco, Inc. v. PF Brands, Inc., 50 F.Supp.2d 188, 202 (S.D.N.Y.1999) (granting the defendant’s motion for a preliminary injunction) affid, 191 F.3d 208 (2d Cir.1999). “[T]he element of fame is the key ingredient.... the senior mark be truly famous before a court will afford the owner of the mark the vast protections of the FTDA.” Savin Corp. v. Savin Grp., 391 F.3d 439, 449 (2d Cir.2004) (upholding a finding the mark was famous). “[A] mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner.” 15 U.S.C.A. § 1125(c)(2). In determining whether a mark possesses the requisite degree of recognition, the court may consider all relevant factors, including the following: (i) The duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties. (ii) The amount, volume, and geographic extent of sales of goods or services offered under the mark. (iii) The extent of actual recognition of the mark. (iv) Whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register. Id. The Second Circuit found there was sufficient evidence the SAVIN mark was famous to survive summary judgment because the evidence showed the plaintiff earned $674 million in revenues and in 2002 alone it spent $20 million in advertising the SAVIN mark in well-known, national publications. Savin, 391 F.3d at 450 (noting the advertisements were “regularly featured in print and television advertisements, trade" }, { "docid": "3910986", "title": "", "text": "Sports Authority, Inc. v. Abercrombie & Fitch, Inc., 965 F.Supp. 925, 941 (E.D.Mich.1997) (finding that the Sports Authority’s trademark for “authority” has been diminished by third party use and was “not so famous as to deserve protection under the federal dilution statute”). More importantly, the First Circuit has set out a high standard for district courts to find that a mark is famous for the purposes of the FTDA. In Lund, the First Circuit wrote that “courts should be discriminating and selective in categorizing a mark as famous” and noted the “rigorous standard of fame.” 163 F.3d at 46^17. Given this high standard, I find Hasbro has failed to establish that its mark, which is a common word that numerous third parties use, is famous and thus entitled to protection from dilution. I will, nonetheless, proceed to the substantive dilution analysis. b. Dilution of the Mark 1. Per Se Dilution The FTDA defines dilution as “the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of (1) competition between the owner of the famous mark and other parties, or (2) the likelihood of confusion, mistake or deception.” 15 U.S.C. § 1127. The two kinds of dilution traditionally recognized are blurring and tarnishment. Lund, 11 F.Supp.2d at 125. Hasbro, however, urges me to join several other courts in recognizing what would be essentially a third, ‘per se’, category of dilution — use of another’s trademark as a domain name. One such court, whose decision was recently reversed, asserted, “Courts presented with the question have held unanimously that it does ‘lessen the capacity of a famous mark to identify and distinguish goods or services,’ when someone other than the trademark holder registers the trademark name as an Internet domain name.” Avery Dennison Corp. v. Sumpton, 999 F.Supp. 1337, 1340 (C.D.Cal.1998), rev’d, 189 F.3d 868 (9th Cir.1999); see also Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1326-27 (9th Cir.1998); Lozano, 44 U.S.P.Q.2d at 1769. These courts seem to suggest that simply preventing a plaintiff from using his own famous trademark" }, { "docid": "2855755", "title": "", "text": "[Cjourts thus far have shown little inclination to limit protection to the truly famous marks envisioned by the drafters of the [FTDA]. Instead, the courts, when they acknowledge the fame requirement at all, simply state a mark’s fame in eonclusory terms without attention to the eight fame factors. Unless courts strictly adhere to the admittedly vague dictates of the federal dilution statute, federal dilution protection will surely give rise to a broad regime of trademark rights in gross. Robert N. Klieger, Trademark Dilution: The Whittling Away of the Rational Basis for Trademark Protection, 58 U. Pitt. L.Rev. 789, 68 (Summer 1997). This concern has not gone unnoticed, and courts are now taking pains to emphasize the rigor of the fame requirement. For example, the Ninth Circuit recently set itself apart from the expansive interpretations of the FTDA by other courts by vacating a permanent injunction after finding that plaintiffs trademarks were not sufficiently famous for FTDA protection and remanding with instructions to enter summary judgment for defendant. See Avery Dennison Corp. v. Sumpton, 189 F.3d 868 (9th Cir.1999). There, Avery Dennison, the seller of office supplies and industrial fasteners, sued an Internet email business which offered “vanity” e-mail addresses, alleging that defendant’s maintenance of the domain name registrations and <dennison.net> diluted Avery Denni-son’s trademarks. The “Avery” mark had been in continuous use since the 1930s and had been registered since 1963. The “Dennison” mark had been in continuous use since the late 1800s and registered since 1908. See Avery Dennison, 189 F.3d at 873. Avery Dennison’s annual advertising expenditures exceeded $5 million, and its annual sales reached $3 billion (although no evidence indicated what percentage of these dollar figures applied exclusively to the “Avery” or “Dennison” trademarks as opposed to the company’s other marks). See id. Avery Dennison also maintained its own website. After reviewing dilution theory and the legislative intent behind the FTDA, the Court emphasized the role of the fame requirement in “reinstating the balance” in the Lanham Act to avoid “over-protecting trademarks, at the expense of potential non-infringing uses.” Id. at 875. Despite the fact that the" } ]

[ { "docid": "18292417", "title": "", "text": "of Fed.R.Civ.P. 8, which encourages “short and concise” pleadings, and the particularity requirement of Rule 9(b). Given the seriousness of fraud allegations, however, Rule 9(b) was designed both to insure that plaintiffs have an adequate basis for such allegations and to provide defendants with sufficient information to frame a responsive pleading. See Denny v. Barber, 576 F.2d 465 (2d Cir. 1978); Felton v. Walston and Co., Inc., 508 F.2d 577 (2d Cir. 1974). See generally, 5 C. Wright & A. Miller, Federal Practice & Procedure § 1298 (1969). Rule 9(b) does not, however, require plaintiffs in a securities fraud case to set forth facts which, because no discovery has yet occurred, are in the exclusive possession of .the defendants. See Segal v. Gordon, 467 F.2d 602 (2d Cir. 1972); Green v. Hamilton International Corp., 437 F.Supp. 723 (S.D.N.Y.1977). Here, although the complaint does not detail every act performed in furtherance of the alleged conspiracy, it does meet the requirements of Rule 9(b). There can be little question that, with respect to Nestle and Libby, the complaint is sufficiently detailed. For example, as was discussed above, the complaint alleges that Libby conspired with Nestle to eliminate the shareholders’ dividend rights. Complaint ¶¶ 18,19. In addition, the Libby directors, individual defendants herein, are alleged to have participated in the decision to eliminate the minority stockholders. Specifically, according to the complaint, the Libby directors authorized defendants Wells and Guerrcut to form an Advisory Committee to the Nestle Board for the purpose of preparing for Nestle a May 1975 report entitled “Libby-Acquisition of the Shares of Minority Shareholders.” Complaint ¶¶31, 32. The court need not decide whether Libby and the individual directors, in fact, authorized the members of the Advisory Committee to assist Nestle in executing its allegedly fraudulent scheme to take over Libby. All that is necessary at this stage is for plaintiffs to have alleged fraud on the part of Libby and its directors with sufficient particularity to defeat a motion to dismiss pursuant to Rule 9(b). See Gross v. Diversified Mortgage Investors, 431 F.Supp. 1080 (S.D.N.Y.1977). I find that they have" } ]

[ { "docid": "1384916", "title": "", "text": "to prepare an answer on the basis of what has been alleged.... ” Id. at 308. The only facts that the Trustee alludes to are contained in paragraphs “8” and “9” of his complaint where he states: [F]rom the years commencing 1978 to and including the date of this complaint, OPM was insolvent [and] between on or about January 17, 1978 and December 19, 1979, funds aggregating the sum of $495,-347.34, the property of OPM, were by a series of payments transferred to or for the use and benefit of Zimmerman, Designs, and Designs of New York. Facts that have not been plead have been stated in the Trustee’s papers in opposition to the motion and would seem to buttress the statutory causes of action alleged in the complaint. It is urged that since the plaintiff is in possession of facts suggestive of entitlement to relief, he use them to clothe the bare statutory bones. Moreover, “[f]air notice requires something more than a quotation from the statute.... ” In re Hart, 461 F.Supp. 328-330. Plaintiff’s complaint does almost nothing more than parrot the statute verbatim. For example, paragraph “12” alleges that “at all the times of said transfers .... OPM was one or more of the following: (a) insolvent; (b) had an unreasonably small capital; or (c) intended or believed that it would incur debts beyond its ability to pay as they mature.” These are elements set forth in Section 548(a)(2)(A), (B); these words do not explain and do not specify any facts. This smacks of multiple choice or menu pleading. “This practice [of repeating the statute] can have serious consequences in ordinary situations as fraud should normally be pleaded with particularity.” In re McGuff, 3 B.R. at 70. A complaint that merely repeats the wording of the statute and includes no facts in support of its allegations will be met with disfavor. Moreover, plaintiff has asserted all of his fraud allegations on information and belief. The case law generally holds that allegations of fraud based solely on information and belief usually do not satisfy the degree of particularity required" }, { "docid": "5160688", "title": "", "text": "the conspiracy. See Chambers at 1538. In a bankruptcy case where the trustee or a third party outsider to the fraudulent transaction is pleading the fraud on secondhand knowledge for the benefit of the estate and all of its creditors, greater liberality is generally afforded in the pleading of fraud than in a civil suit. See Hassett v. Zimmerman {In re O.P.M. Leasing Services, Inc.), 32 B.R. 199, 203 (Bankr.S.D.N.Y.1983); Huntington Nat’l Bank v. Schwartzman {In re Schwartz-man), 63 B.R. 348, 355 (Bankr.S.D.Ohio 1986). Courts have thus held that the complaint must “ ‘set forth the facts with sufficient particularity to apprise the defendant fairly of the charges made against him’... ‘so that the defendant can prepare an adequate answer to the allegations.’ ” O.P.M. Leasing, 32 B.R. at 203 citing King’s Place, Inc. v. First Nat’l Bank (In re King’s Place), 6 B.R. 305, 307-08 (Bankr. E.D.Pa.1980). A strict interpretation of Rule 9(b) in circumstances where the details of the scheme are peculiarly within the knowledge of the defendants would be inappropriate. See Denny v. Carey, 72 F.R.D. 574, 580 (E.D.Pa.1976). 1. Information and belief Pleading on information and belief is usually inadequate to meet the particu larity requirement. See Segal v. Gordon, 467 F.2d 602, 608 (2d Cir.1972). But “a fraud pleading that concerns matters peculiarly within the adverse party’s knowledge, will satisfy the 9(b) requirements if accompanied by a statement of facts upon which the belief is founded.” Atlanta Shipping Corp., Inc. v. Chemical Bank, 631 F.Supp. 335, 348 (S.D.N.Y.1986), aff'd 818 F.2d 240 (2d Cir.1987) and cases cited; see also Luce v. Edelstein, 802 F.2d 49, 54 n. 1 (2d Cir.1986); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); DiVittorio, 822 F.2d at 1247. That burden has been met here. Rule 9(b) prevents the filing of a complaint as a pretext for discovery of unknown wrongs. 2A J. Moore, Moore’s Federal Practice, ¶ 9.03[1] at 9-33 (2d ed.1987) quoting Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.1985). The Amended" }, { "docid": "18804599", "title": "", "text": "will provide a party with notice of the claims asserted. In re Hart, 461 F.Supp. 328 (E.D.Ark.1978). Federal Rule of Civil Procedure 9 requires that any fraud allegation must be pled with particularity. In re Kerr, 58 B.R. 171 (Bkrptcy.E.D.Ark.1985). Reading Rule 9 in conjunction with Rule 8, Plaintiff’s Complaint must provide a short and simple description of the factual basis to support an allegation of fraud. In re Tanner’s Transfer and Storage of Virginia, 30 B.R. 22 (Bkrptcy.E.D.Va.1983). The court is also mindful of the more liberal approach to fraud pleading in bankruptcy cases especially in those instances where a trustee is bringing the action. Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2nd Cir.1974). This liberality is justified because the Trustee is a third party outsider to the fraudulent transaction and, in most cases, must plead fraud on second hand knowledge for the benefit of the estate and all its creditors. In re O.P.M. Leasing Services, Inc., 32 B.R. 199, 203 (Bkrptey.S.D.N.Y.1983). Thus, bankruptcy courts do not generally insist on the stringent standards required in a nonbankruptcy civil action. Decker v. Massey-Ferguson, Ltd., 681 F.2d 111 (2nd Cir.1982). See, also, In re McGuff, 3 B.R. 66 (Bkrptcy.S.D.Ca.1980) and In re Brown, 444 F.2d 49, 50 (8th Cir.1971). The Court does feel, however, that the Trustee should set forth any and all other facts he might have in addition to those now set out in the Complaint. This Court agrees with the bankruptcy court’s finding in O.P.M. Leasing, supra, that “as an outsider to the transactions complained of, the Trustee may be impaired but he is not disabled.” 32 B.R. at 203. Accordingly, it is hereby ORDERED that the Motion to Dismiss be and hereby is denied. It is further ORDERED that Plaintiff he and hereby is granted 20 days from the date of entry of this Order to amend his Complaint to cure the deficiencies described above. It is further ORDERED that the Defendant shall answer the Amended Complaint within twenty (20) days from the date the Amended Complaint is filed. IT IS SO ORDERED." }, { "docid": "15234319", "title": "", "text": "U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); City of Phila. v. Lead Indus. Ass’n, Inc., 994 F.2d 112, 118 (3d Cir.1993). “In deciding a motion to dismiss, we must accept all well-pleaded allegations in the complaint as true, and view them in the light most favorable to the plaintiff.” Carino v. Stefan, 376 F.3d 156, 159 (3d Cir.2004). All reasonable inferences are drawn in favor of the plaintiff. Kost, 1 F.3d at 183. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). See also Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir.2000); In re OODC, LLC, 321 B.R. 128, 134 (Bankr.D.Del.2005) (“Granting a motion to dismiss is a ‘disfavored’ practice.”). 2. Rule 8(a) Rule 8(a) of the Federal Rules of Civil Procedure requires only that a Complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The statement must provide the defendant with fair notice of the claim filed against it. See, e.g., Williams v. Potter, 384 F.Supp.2d 730, 733 (D.Del.2005) (“Vague and conclusory factual allegations do not provide fair notice to a defendant.”) citing United States v. City of Phila., 644 F.2d 187, 204 (3d Cir.1980). 3. Rule 9(b) Dismissal Where a complaint asserts a claim for fraud, however, the standard for pleading is higher. The complaint must set forth facts with sufficient particularity to apprise the defendant of the charges against him so that he may prepare an adequate answer. In re Global Link Telecom Corp., 327 B.R. 711, 718 (Bankr.D.Del.2005). To provide fair notice the complainant must go beyond merely parroting statutory language. Id. See also In re Circle Y of Yoakum, Texas, 354 B.R. 349, 356 (Bankr.D.Del.2006). A bankruptcy trustee, as a third party outsider to the debt- or’s transactions, is generally afforded greater liberality in pleading fraud. Global Link, 327 B.R. at 717. B. Greenwich’s Motion to Dismiss 1. Release Provision in" }, { "docid": "1384914", "title": "", "text": "602, 607 (2d Cir.1972); Rich v. Touche Ross, 68 F.R.D. 243,-245 (S.D.N.Y.1975). Accordingly, it is not to be pleaded by means of conclusory allegations only. Id. This Court agrees with plaintiff in the case at bar that greater liberality should be afforded in the pleading of fraud in a bankruptcy case. As mentioned earlier, this liberality is required because it is often the Trustee, a third party outsider to the fraudulent transaction, that must plead fraud on secondhand knowledge for the benefit of the estate and all of its creditors. However, “[t]he rules do require ... that the complaint ‘set forth the facts with sufficient particularity to apprise the defendant fairly of the charges made against him’ ... ‘so that the defendant can prepare an adequate answer to the allegations.’ ” In re King’s Place, 6 B.R. 305, 307-308 (Bkrtcy.E.D.Pa.1980) (citations omitted); Accord, In re McGuff, 3 B.R. 66 (Bkrtcy.S.D.Calif.1980) See In re Hart, 461 F.Supp. 328, 330 (E.D.Ark.1978). In light of the competing policies of Rules 9(b) and 8(a) and the greater liberality afforded a pleader of fraud in a bankruptcy setting, see In re Germain, 144 F.Supp. 678, 683 (S.D.Cal.1956), this Court will not insist upon the stringent standards enunciated by the Second Circuit intended for a non-bankruptcy civil action setting such as in Decker and Crystal. Appropriate herein is a standard akin to the standard enunciated by the bankruptcy courts in McGuff and King’s Place. Even under this more relaxed standard, in the present case, the Trustee must produce more facts than he has thus far set forth in the complaint. As an outsider' to the transactions complained of, the Trustee may be impaired but he is not disabled. The Court in In re McGuff, 3 B.R. 66, found that the complaint included no facts in support of its allegations. The court held that this deficiency prevented the defendant from formulating an effective response. Id. at 70. In contrast, the Court in In re King’s Place, 6 B.R. 305, held that plaintiff had “so stated with sufficient particularity that defendant may reasonably be expected to be able" }, { "docid": "21173597", "title": "", "text": "F.2d 112, 118 (3d Cir.1993). “In deciding a motion to dismiss, we must accept all well-pleaded allegations in the complaint as true, and view them in the light most favorable to the plaintiff.” Carino v. Stefan, 376 F.3d 156, 159 (3d Cir.2004). All reasonable inferences are drawn in favor of the plaintiff. Kost, 1 F.3d at 183. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). See also Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir.2000); In re OODC, LLC, 321 B.R. 128, 134 (Bankr.D.Del.2005) (“Granting a motion to dismiss is a ‘disfavored’ practice.”). 2. Rule 8(a) Rule 8(a) of the Federal Rules of Civil Procedure requires only that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a). The statement must provide the defendant with fair notice of the claim filed against it. See, e.g., Williams v. Potter, 384 F.Supp.2d 730, 733 (D.Del.2005) (“Vague and conclusory factual allegations do not provide fair notice to a defendant.”) citing United States v. City of Phila., 644 F.2d 187, 204 (3d Cir.1980). 3. Rule 9(b) Dismissal Where a complaint asserts a claim for fraud, however, the standard for pleading is higher. The complaint must set forth facts with sufficient particularity to apprise the defendant of the charges against him so that he may prepare an adequate answer. In re Global Link Telecom Corp., 327 B.R. 711, 718 (Bankr.D.Del.2005). To provide fair notice the complainant must go beyond merely parroting statutory language. Id.See also In re Circle Y of Yoakum, Texas, 354 B.R. 349, 356 (Bankr.D.Del.2006). A bankruptcy trustee, as a third party outsider to the debtor’s transactions, is generally afforded greater liberality in pleading fraud. Global Link, 327 B.R. at 717. B. Berkshire and Trickey’s Motion to Dismiss 1. Breach of Fiduciary Duty Berkshire and Trickey contend that the Trustee fails to state a claim for breach of fiduciary duty against" }, { "docid": "6514481", "title": "", "text": "(6th Cir.1984). The plaintiff must state with particularity the specific circumstances giving rise to the complaint. Dayco Corporation v. Goodyear Tire & Rubber Company, 523 F.2d 389, 394 (6th Cir.1975). Where the complaint involves an exception to or a denial of a discharge based on the fraudulent conduct of the debtor, the courts have liberally applied and interpreted pleading rules, particularly in situations where a trustee, a third party, “is pleading fraud on secondhand information.” Hassett v. Zimmerman (In re O.P.M. Leasing Services, Inc.), 32 B.R. 199, 202 (Bankr.S.D.N.Y.1983). Even in those situations, however, the requirement of specificity in pleading “the acts constituting fraud” is demanded. Id. See also Wolfson v. Sriberg (In re Sriberg), 49 B.R. 80, 81 (Bankr.D.Mass.1984); Weick v. Heltzel (In re Metro Equipment & Rental Corp.), 28 B.R. 579, 582 (Bankr.N.D.Ohio 1983). In reconciling the competing standards of notice pleading permitted under Rule 8 and the specificity required under Rule 9 for pleading special matters, the above three bankruptcy courts, even in deciding cases involving a third party trustee plaintiff, still have insisted on more than broad assertions, mere conclusions, and repetition of statute. They have insisted that the complaint state with particularity the underlying facts and the wrong alleged so that the broad policy of the federal rules to fairly apprise parties of the complaint against them in sufficient detail to allow them to adequately answer and prepare their defense is ensured. In cases where the plaintiff is not a third party trustee, but an actual participant in the transaction and theoretically has direct knowledge of the factual underpinnings of any claimed fraud, bankruptcy courts have consistently required compliance with these standards. It is necessary “to set forth the basic outline of fraud and to indicate who made the misrepresentations and the time and place the misrepresentations were made.” Purcell v. Janikowski (In re Janikowski), 60 B.R. 784, 14 B.C.D. 521, 525 (Bankr.N.D.Ill.1986). Bankruptcy courts have demanded that the factual basis supporting the allegation of fraud be stated with particularity, Bunch v. Kerr (In re Kerr), 58 B.R. 171, 173 (Bankr.E.D.Ark.1985), by identifying those representations" }, { "docid": "8345421", "title": "", "text": "(N.D.Cal.1979). On the basis of the foregoing case law authority, this Court will deny defendants’ motion for lack of subject matter jurisdiction on the merits because although a jury trial could have been demanded under the Bankruptcy Rules, it was not so demanded. Moreover, such jury trial is not required in the instant case. In addition, the motion to lift the stay must be summarily dismissed. The stay only applies to actions against the debtor. It does not apply to the Trustee’s advancement of his own adversary proceeding here or in the District Court. B. Motion to Dismiss Pursuant to Rule 9(b) Defendants have also moved to dismiss the complaint for failure to allege fraud with particularity as required by Federal Rule 9(b) as implemented in bankruptcy matters by Bankruptcy Rule 7009. Federal Rule 9(b) provides: “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” This pleading requirement must be reconciled with Federal Rule 8 and its requisite of notice pleading. One court has declared: “So long as the complaint affords defendant notice of the claims against him and evidences a reasonable belief on plaintiff’s part that his complaint has merit,” both Rule 8 and 9 will be satisfied. Gilbert v. Bagley, 492 F.Supp. 714, 726 (M.D.North Carolina, 1980). See In re Hart, 461 F.Supp. 328, 330 (E.D.Ark.1978); In re King’s Place, 6 B.R. 305, 307-08 (Bkrtcy.E.D.Pa.1980); In re McGuff, 3 B.R. 66, 70 (Bkrtcy.S.D.Cal.1980). Furthermore, a complaint will be deemed sufficient if it enables defendants to frame a responsive pleading. See Felton v. Walston & Co., Inc.,. 508 F.2d 577, 581 (2d Cir.1974); Merrit v. Libby, McNeill & Libby, 510 F.Supp. 366, 373 (S.D.N.Y.1981); Paramount Film Distributing Corp. v. Jaffurs, 11 F.R.D. 437, 439 (W.D.Pa.1951). Defendants rely upon this Court’s previous decision in OPM v. Zimmerman, 32 B.R. 199 (Bkrtcy.S.D.N.Y.1983), where the trustee was required to replead his fraud complaint with greater particularity. Defendants insist that it is impossible for them to prepare an adequate defense based upon the allegations contained in the Trustee’s complaint, and that they were not" }, { "docid": "1384915", "title": "", "text": "a pleader of fraud in a bankruptcy setting, see In re Germain, 144 F.Supp. 678, 683 (S.D.Cal.1956), this Court will not insist upon the stringent standards enunciated by the Second Circuit intended for a non-bankruptcy civil action setting such as in Decker and Crystal. Appropriate herein is a standard akin to the standard enunciated by the bankruptcy courts in McGuff and King’s Place. Even under this more relaxed standard, in the present case, the Trustee must produce more facts than he has thus far set forth in the complaint. As an outsider' to the transactions complained of, the Trustee may be impaired but he is not disabled. The Court in In re McGuff, 3 B.R. 66, found that the complaint included no facts in support of its allegations. The court held that this deficiency prevented the defendant from formulating an effective response. Id. at 70. In contrast, the Court in In re King’s Place, 6 B.R. 305, held that plaintiff had “so stated with sufficient particularity that defendant may reasonably be expected to be able to prepare an answer on the basis of what has been alleged.... ” Id. at 308. The only facts that the Trustee alludes to are contained in paragraphs “8” and “9” of his complaint where he states: [F]rom the years commencing 1978 to and including the date of this complaint, OPM was insolvent [and] between on or about January 17, 1978 and December 19, 1979, funds aggregating the sum of $495,-347.34, the property of OPM, were by a series of payments transferred to or for the use and benefit of Zimmerman, Designs, and Designs of New York. Facts that have not been plead have been stated in the Trustee’s papers in opposition to the motion and would seem to buttress the statutory causes of action alleged in the complaint. It is urged that since the plaintiff is in possession of facts suggestive of entitlement to relief, he use them to clothe the bare statutory bones. Moreover, “[f]air notice requires something more than a quotation from the statute.... ” In re Hart, 461 F.Supp. 328-330. Plaintiff’s" }, { "docid": "8345423", "title": "", "text": "provided with adequate notice of the particular circumstances constituting the alleged frauds. In Zimmerman, the complaint was deemed inadequate because it was not clear whether defendants could fashion an adequate answer to the allegations. However, the present case can be readily distinguished because defendants have prepared an adequate answer to the complaint complete with affirmative defenses and counterclaims. In their answer in the instant case, defendants not only admit receiving the funds in question but further respond by counterclaiming for monies they claim are owed them. Thus, it appears that issue has been joined and defendants have obtained sufficient information from the complaint to frame a cogent response. Having pleaded and framed issues, it ill behooves the defendants to make the argument that they cannot do that which they demonstrated they were able to do. Rule 9(b) requires that the wrongful conduct alleged be identified and the nature of the misrepresentation be stated. See Gilbert v. Bagley, 492 F.Supp. 714, 726. The instant complaint fulfills these requirements in that the Trustee alleges fraudulent conveyances between certain years for a total sum certain and that these transactions occurred without the provision of fair consideration. In addition, the liberal discovery rules militate against dismissal of a complaint for failure to plead with particularity once the basic framework of the fraud has been outlined. As the court in Bagley stated: “The liberal provisions in the Federal Rules for discovery and other pretrial procedures are particularly well-suited for narrowing the issues in dispute and their availability counsels against dismissal.” Id.; Accord, Merrit v. Libby, McNeill & Libby, 510 F.Supp. 366, 374 (S.D.N.Y.1981). The Trustee will thus be required to specify his allegations during pretrial discovery in order to satisfy his ultimate burden at trial to come forward with greater particulars to support his claims. Defendants argue that the complaint is overly comprehensive in scope because it fails to specify over one hundred and fifty transactions that took place over a six year period. However, requiring a list of every alleged transaction among OPM, Weissman and Fundways would represent an undue burden on the Trustee" }, { "docid": "8345422", "title": "", "text": "long as the complaint affords defendant notice of the claims against him and evidences a reasonable belief on plaintiff’s part that his complaint has merit,” both Rule 8 and 9 will be satisfied. Gilbert v. Bagley, 492 F.Supp. 714, 726 (M.D.North Carolina, 1980). See In re Hart, 461 F.Supp. 328, 330 (E.D.Ark.1978); In re King’s Place, 6 B.R. 305, 307-08 (Bkrtcy.E.D.Pa.1980); In re McGuff, 3 B.R. 66, 70 (Bkrtcy.S.D.Cal.1980). Furthermore, a complaint will be deemed sufficient if it enables defendants to frame a responsive pleading. See Felton v. Walston & Co., Inc.,. 508 F.2d 577, 581 (2d Cir.1974); Merrit v. Libby, McNeill & Libby, 510 F.Supp. 366, 373 (S.D.N.Y.1981); Paramount Film Distributing Corp. v. Jaffurs, 11 F.R.D. 437, 439 (W.D.Pa.1951). Defendants rely upon this Court’s previous decision in OPM v. Zimmerman, 32 B.R. 199 (Bkrtcy.S.D.N.Y.1983), where the trustee was required to replead his fraud complaint with greater particularity. Defendants insist that it is impossible for them to prepare an adequate defense based upon the allegations contained in the Trustee’s complaint, and that they were not provided with adequate notice of the particular circumstances constituting the alleged frauds. In Zimmerman, the complaint was deemed inadequate because it was not clear whether defendants could fashion an adequate answer to the allegations. However, the present case can be readily distinguished because defendants have prepared an adequate answer to the complaint complete with affirmative defenses and counterclaims. In their answer in the instant case, defendants not only admit receiving the funds in question but further respond by counterclaiming for monies they claim are owed them. Thus, it appears that issue has been joined and defendants have obtained sufficient information from the complaint to frame a cogent response. Having pleaded and framed issues, it ill behooves the defendants to make the argument that they cannot do that which they demonstrated they were able to do. Rule 9(b) requires that the wrongful conduct alleged be identified and the nature of the misrepresentation be stated. See Gilbert v. Bagley, 492 F.Supp. 714, 726. The instant complaint fulfills these requirements in that the Trustee alleges fraudulent conveyances between" }, { "docid": "23671880", "title": "", "text": "relief.” Tornera v. Galt, 511 F.2d 504, 508 (7th Cir.1975). Courts generally evaluate averments of fraud in the bankruptcy context more liberally than in other civil actions charging fraud. In re Hollis & Co., 83 B.R. 588, 590 (Bankr.E.D.Ark.1988); In re O.P.M. Leasing Services, Inc., 32 B.R. 199, 203 (Bankr.S.D.N.Y.1983); In re McGuff, 3 B.R. 66, 70 (Bankr.S.D.Cal.1980). To determine whether a pleading satisfies Rule 9(b), a court must consider the purposes of the rule: Complaints alleging fraud should seek redress for a wrong rather than attempting to discover unknown wrongs. Moreover, defendants must be protected from the harm that results from charges of serious wrongdoing, as well as the harm that comes to their reputations when they are charged with the commission of acts involving moral turpitude. Finally, allegations of fraud must be concrete and particularized enough to give notice to the defendants of the conduct complained of, to enable the defendants to prepare a defense. [Citations omitted.] D & G Enterprises v. Continental Illinois National Bank, 574 F.Supp. 263, 266-67 (N.D.Ill.1983). See also McKee v. Pope Ballard Shepard & Fowle Ltd., 604 F.Supp. 927, 930 (N.D.Ill.1985). A court must consider these principles in light of the Supreme Court’s admonition that a complaint should be dismissed for failing to state a claim only when it appears beyond doubt that plaintiff cannot, under any set of facts, support the claim. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); In re McGuff, 3 B.R. 66, 70 (Bankr.S.D.Cal.1980). The allegations of Wieboldt’s complaint are well within the pleading requirement of Rule 9(b). Wieboldt’s detailed and comprehensive complaint recites 107 paragraphs of supporting facts. Paragraphs 43 through 107 explain in detail the events surrounding the tender offer and the LBO. These paragraphs describe each defendant’s participation in the LBO transaction, the effect of the LBO on Wieboldt after the transactions were complete, and the assets involved in the transactions. In addition, Wieboldt states clearly in each count the factual and legal basis for the claim in that count and the defendants against whom the claim" }, { "docid": "8345425", "title": "", "text": "and would be wholly inappropriate. As one court has held: “[I]f only one fraudulent act were relied on, more details as to time and place would be appropriate. However, here such detail would unduly lengthen the complaints in violation of Rule 8(a).” Paramount Film Distributing Corp. v. Jaffurs, 11 F.R.D. at 439 (W.D.Pa.1951). The rigors of Rule 9(b) must be tempered by the more liberal requirement of Rule 8 of pleading merely a short and concise statement of the claim. See Felton v. Walston and Co., Inc., 508 F.2d 577, 581 (2d Cir.1974); OPM v. Zimmerman, 32 B.R. 199 (Bkrtcy.S.D.N.Y.1983). The instant complaint has fulfilled the requirements of pleading fraud in a civil action. That these requirements have been fulfilled is demonstrated by defendants’ clearcut ability to answer and counterclaim. Furthermore, the complaint clearly satisfies the more liberal standards applied to fraud pleading in bankruptcy cases. The less stringent standard for pleading fraud with particularity in a bankruptcy proceeding involving a trustee is predicated upon the fact that it is often the trustee, a third party, who is pleading fraud on second-hand information. See, e.g., Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir.1974). See also In re Germain, 144 F.Supp. 678, 683 (S.D.Cal.1956); OPM v. Zimmerman, 32 B.R. 199 (Bkrtcy.S.D.N.Y.1983). Moreover, less particularity is required where plaintiff is not asserting that the fraud was committed against himself personally, but rather that it was committed against a third party. See Allegaert v. Perot, 78 F.R.D. 427, 430 (S.D.N.Y.1978) (citing Segal v. Gordon, 467 F.2d 602, 607 (2d Cir.1972)). The rigors of Rule 9(b) are also liberalized where the essential facts are solely within the knowledge of the defendants. Id. In the instant case, the Trustee has no personal knowledge of the relevant facts, records, and conversations relating to the transactions between OPM and defendants. Therefore, pursuant to the standards enunciated in Zimmerman and the above-detailed cases, the Trustee has surely pleaded with sufficient particularity under the bankruptcy standard and has probably fulfilled the bi-party general civil liability pleading requirements as well. The Trustee urges another similar basis for" }, { "docid": "1250063", "title": "", "text": "to Rules 9(b) and 12(b)(1) and (6) of the Federal Rules of Civil Procedure, for an order dismissing the plaintiff’s complaint for failure to plead fraud with the requisite specificity. Viewing the plaintiff’s pleadings in light of the particularity requirements of Rule 9(b), Fed.R.Civ.P., it appears that the allegations of fraud which form the basis for this cause have not been well-pleaded. That being so, the defendants’ motion to dismiss will, for the reasons stated below, be granted, and the plaintiff’s cause will be dismissed, without prejudice, in its entirety. I. In Count I of his complaint, the plaintiff alleges that the defendants violated Rule 10b-5 of the Exchange Act by “churning” his options account through a series of unsuitable transactions. To adequately plead Rule 10b-5 fraud, a plaintiff must satisfy the particularity requirements of Rule 9(b), Fed.R.Civ.P., Tomera v. Galt, 511 F.2d 504 (7th Cir. 1975); Schaefer v. First Nat'l Bank of Lincolnwood, 509 F.2d 1287, 1297 (7th Cir. 1975); Lincoln Nat’l Bank v. Lampe, 414 F.Supp. 1270, 1278 (N.D.Ill.1976); such requirements having been imposed to insure that the defendants in question will be given notice of the fraud claimed which is sufficient in nature to permit them to frame adequate responsive pleadings, Felton v. Walston, 508 F.2d 577, 581 (2d Cir. 1974); Todd v. Oppenheimer, 78 F.R.D. 415, 419 (S.D.N.Y.1978). Accordingly, because a properly pleaded churning claim is cognizable as fraud under federal securities law, Newberger, Loeb & Co., Inc. v. Gross, 563 F.2d 1057, 1070 (2d Cir. 1977); Darrell v. Goodson, CCH Fed.Sec.L.Rep. ¶ 97,349, 97,326 (S.D.N.Y.1980), conclusory allegations cannot, without more, be considered sufficient to support such a claim, Vetter v. Shearson Hayden Stone, Inc., 481 F.Supp. 64, 66 (S.D.N.Y.1979); Salwen Paper Co., Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 79 F.R.D. 130, 135 (S.D.N.Y.1978). The essence of a churning claim is not a particular trade or group of trades, but rather is the overall amount of trading in the customer’s account in light of such considerations as market conditions, size of commissions, and sophistication of the customer. Fey v. Walston & Co., 493" }, { "docid": "18804598", "title": "", "text": "state or federal law. 4 Collier on Bankruptcy, If 544.01 (15th Ed.1982). In Count II of the Complaint filed by the Trustee, he restates his general allegations under Count I and adds the allegation that the debtor transferred funds to the Defendant, Twin City Bank, on two specific dates. He then goes on to state that these transfers are avoidable pursuant to § 544(b) as a transfer avoidable under applicable state law. The Court would concede that this is a minimum pleading but finds that it does state a claim, albeit sketchy. The Trustee will be given leave to amend his Complaint to particularize these allegations. The Defendant has also moved to dismiss the Trustee's Complaint pursuant to Rule 9(b) and 9(f) of the Federal Rules of Civil Procedure for failure to plead circumstances constituting fraud or fraudulent conveyance with particularity and failure to aver pertinent times and places. As pointed out above, Federal Rule of Civil Procedure 8, states that allegations in a complaint should be made in short, plain and concise statements which will provide a party with notice of the claims asserted. In re Hart, 461 F.Supp. 328 (E.D.Ark.1978). Federal Rule of Civil Procedure 9 requires that any fraud allegation must be pled with particularity. In re Kerr, 58 B.R. 171 (Bkrptcy.E.D.Ark.1985). Reading Rule 9 in conjunction with Rule 8, Plaintiff’s Complaint must provide a short and simple description of the factual basis to support an allegation of fraud. In re Tanner’s Transfer and Storage of Virginia, 30 B.R. 22 (Bkrptcy.E.D.Va.1983). The court is also mindful of the more liberal approach to fraud pleading in bankruptcy cases especially in those instances where a trustee is bringing the action. Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2nd Cir.1974). This liberality is justified because the Trustee is a third party outsider to the fraudulent transaction and, in most cases, must plead fraud on second hand knowledge for the benefit of the estate and all its creditors. In re O.P.M. Leasing Services, Inc., 32 B.R. 199, 203 (Bkrptey.S.D.N.Y.1983). Thus, bankruptcy courts do not generally insist on the stringent" }, { "docid": "8345424", "title": "", "text": "certain years for a total sum certain and that these transactions occurred without the provision of fair consideration. In addition, the liberal discovery rules militate against dismissal of a complaint for failure to plead with particularity once the basic framework of the fraud has been outlined. As the court in Bagley stated: “The liberal provisions in the Federal Rules for discovery and other pretrial procedures are particularly well-suited for narrowing the issues in dispute and their availability counsels against dismissal.” Id.; Accord, Merrit v. Libby, McNeill & Libby, 510 F.Supp. 366, 374 (S.D.N.Y.1981). The Trustee will thus be required to specify his allegations during pretrial discovery in order to satisfy his ultimate burden at trial to come forward with greater particulars to support his claims. Defendants argue that the complaint is overly comprehensive in scope because it fails to specify over one hundred and fifty transactions that took place over a six year period. However, requiring a list of every alleged transaction among OPM, Weissman and Fundways would represent an undue burden on the Trustee and would be wholly inappropriate. As one court has held: “[I]f only one fraudulent act were relied on, more details as to time and place would be appropriate. However, here such detail would unduly lengthen the complaints in violation of Rule 8(a).” Paramount Film Distributing Corp. v. Jaffurs, 11 F.R.D. at 439 (W.D.Pa.1951). The rigors of Rule 9(b) must be tempered by the more liberal requirement of Rule 8 of pleading merely a short and concise statement of the claim. See Felton v. Walston and Co., Inc., 508 F.2d 577, 581 (2d Cir.1974); OPM v. Zimmerman, 32 B.R. 199 (Bkrtcy.S.D.N.Y.1983). The instant complaint has fulfilled the requirements of pleading fraud in a civil action. That these requirements have been fulfilled is demonstrated by defendants’ clearcut ability to answer and counterclaim. Furthermore, the complaint clearly satisfies the more liberal standards applied to fraud pleading in bankruptcy cases. The less stringent standard for pleading fraud with particularity in a bankruptcy proceeding involving a trustee is predicated upon the fact that it is often the trustee, a third" }, { "docid": "5160687", "title": "", "text": "a fraud claim is sufficient when it sets forth the time, place, particular contents of the false representations, the identity of the party making the false representations, and the consequences of the misrepresentation. DiVittorio v. Equidyne Extractive Industries, Inc., 822 F.2d 1242, 1247 (2d Cir.1987). Gurary and Sternberg argue that the Amended Complaint is deficient because a majority of the trustee’s allegations are based upon information and belief. In support of their argument, they cite Segal v. Gordon, 467 F.2d 602, 608 (2d Cir.1972) and Devaney v. Chester, 813 F.2d 566, 568 (2d Cir.1987). They also assert that the trustee has not pleaded the predicate acts of mail and wire fraud because she has failed to heed the mandate of Chambers Development Co., Inc. v. Browning-Ferris Industries, 590 F.Supp. 1528, 1537 (W.D.Pa.1984), that she specify what was mailed or communicated through the wires, when they were used and which person used them. Finally, the Defendants contend that the RICO conspiracy claim is insufficient under Rule 9(b) because it fails to identify each participant’s role in the conspiracy. See Chambers at 1538. In a bankruptcy case where the trustee or a third party outsider to the fraudulent transaction is pleading the fraud on secondhand knowledge for the benefit of the estate and all of its creditors, greater liberality is generally afforded in the pleading of fraud than in a civil suit. See Hassett v. Zimmerman {In re O.P.M. Leasing Services, Inc.), 32 B.R. 199, 203 (Bankr.S.D.N.Y.1983); Huntington Nat’l Bank v. Schwartzman {In re Schwartz-man), 63 B.R. 348, 355 (Bankr.S.D.Ohio 1986). Courts have thus held that the complaint must “ ‘set forth the facts with sufficient particularity to apprise the defendant fairly of the charges made against him’... ‘so that the defendant can prepare an adequate answer to the allegations.’ ” O.P.M. Leasing, 32 B.R. at 203 citing King’s Place, Inc. v. First Nat’l Bank (In re King’s Place), 6 B.R. 305, 307-08 (Bankr. E.D.Pa.1980). A strict interpretation of Rule 9(b) in circumstances where the details of the scheme are peculiarly within the knowledge of the defendants would be inappropriate. See Denny" }, { "docid": "13615339", "title": "", "text": "54 B.R. 859, 862 (Bankr.S.D.N.Y.1985). However, neither Rule 12(b)(6) nor Rule 9(b) requires each element of the alleged fraud be pleaded expressly. In re King’s Place, Inc., 6 B.R. 305, 307 (Bankr.E.D.Pa.1980). If the Plaintiffs know of the misleading statements or acts made by a Defendant, they must allege each and every statement with particularity. In the absence of any such knowledge, Plaintiffs may not use the federal discovery procedures to merely flush out fraudulent statements or acts. Goldman v. Belden, 98 F.R.D. 733, 737-38 (W.D.N.Y.1983); In re Lion Capital Group, 44 B.R. at 697. As the court in Decker explained, the stringent requirements of Rule 9(b) were designed to prevent a long and drawn out discovery process in the anticipation of uncovering substantive, incriminating facts. Decker, 681 F.2d at 116; In re O.P.M. Leasing Services, Inc., 32 B.R. 199, 203 (Bankr.S.D.N.Y.1983). Consequently, it is necessary for a complaint, under Rule 9(b), to be specific in order that it serves a sense of equity. In DiVittorio, the Second Circuit noted that, Rule 9(b) must be enforced so as to accomplish its three goals: (1) providing a Defendant fair notice of Plaintiffs claims to enable preparation of his defense; (2) protecting a Defendant from harm to his reputation or goodwill; and (3) reducing the number of strike suits. DiVittorio at 1247. In addition, “[f]air notice requires something more than a quotation from the stat-ute_” O.P.M., 32 B.R. at 228-230 (quoting In re Hart, 461 F.Supp. 328, 330 (E.D.Ark.1978)). The issue, therefore, is whether the Plaintiff's complaint, taking all its factual allegations as true, provides the Defendant with notice sufficient to enable him to put forth a defense. Plaintiffs’ seventh and eighth claims for relief are based on $25,000.00 in bonds which the Debtor was ordered to turn over to his former wife pursuant to a Final Judgment of Divorce. The complaint merely states that the Debtor’s failure to deliver the $25,000.00 in bonds to the Plaintiff creates a nondischargeable obligation in that such conduct constitutes a “fraud ... while acting in a fiduciary capacity, ... embezzlement and a larceny” pursuant to" }, { "docid": "1384913", "title": "", "text": "a basis from which an inference of fraud may be fairly drawn. Id. at 431, (Current) Fed. Sec.L.Rep. (CCH) at 95,697. The court in Crystal reprimanded the plaintiff for relying solely on generalities. Id. at 431 (Current) Fed.Sec.L.Rep. (CCH) at 95,697-98. Plaintiff failed to supply factual sources and specific dates and the court declared that plaintiff was “not seeking to ‘redress ... a wrong’ but rather ‘to find one.’ ” Id. at 433 (Current) Fed.Sec.L.Rep. (CCH) at 95,703 (citations omitted). Although it is true that Rule 9(b) “should be reconciled with Rule 8, which requires a short and plain statement of claims,” Felton v. Walston & Co., Inc., 508 F.2d 577, 581 (2d Cir.1974), more than broad assertions by the plaintiff are required. A general complaint of fraud circumvents the purposes of the pleading process to give notice to the opposing party of the contentions he will have to meet. Also, an allegation of fraud, unlike most other claims, may have serious impact on the reputation of the defendant. Id.; Segal v. Gordon, 467 F.2d 602, 607 (2d Cir.1972); Rich v. Touche Ross, 68 F.R.D. 243,-245 (S.D.N.Y.1975). Accordingly, it is not to be pleaded by means of conclusory allegations only. Id. This Court agrees with plaintiff in the case at bar that greater liberality should be afforded in the pleading of fraud in a bankruptcy case. As mentioned earlier, this liberality is required because it is often the Trustee, a third party outsider to the fraudulent transaction, that must plead fraud on secondhand knowledge for the benefit of the estate and all of its creditors. However, “[t]he rules do require ... that the complaint ‘set forth the facts with sufficient particularity to apprise the defendant fairly of the charges made against him’ ... ‘so that the defendant can prepare an adequate answer to the allegations.’ ” In re King’s Place, 6 B.R. 305, 307-308 (Bkrtcy.E.D.Pa.1980) (citations omitted); Accord, In re McGuff, 3 B.R. 66 (Bkrtcy.S.D.Calif.1980) See In re Hart, 461 F.Supp. 328, 330 (E.D.Ark.1978). In light of the competing policies of Rules 9(b) and 8(a) and the greater liberality afforded" }, { "docid": "6603284", "title": "", "text": "County Cmty. Coll., 725 F.2d 943, 944 (3d Cir.1984)). “In deciding a motion to dismiss, we must accept all well-pleaded allegations in the complaint as true, and view them in the light most favorable to the plaintiff.” Carino v. Stefan, 376 F.3d 156, 159 (3d Cir.2004). All reasonable inferences are drawn in favor of the plaintiff. Kost, 1 F.3d at 183. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). See also Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir.2000); In re OODC, LLC, 321 B.R. 128, 134 (Bankr.D.Del.2005) (“Granting a motion to dismiss is a ‘disfavored’ practice ....”). 2. Rule 8(a) Rule 8(a) of the Federal Rules of Civil Procedure requires only that a Complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The statement must provide the defendant with fair notice of the claim filed against it. See, e.g., Williams v. Potter, 384 F.Supp.2d 730, 733 (D.Del.2005) (“Vague and conclu-sory factual allegations do not provide fair notice to a defendant.”) (citing United States v. City of Phila., 644 F.2d 187, 204 (3d Cir.1980)). 3. Rule 9(b) Dismissal Where a complaint asserts a claim for fraud, however, the standard for pleading is higher. The complaint must set forth facts with sufficient particularity to apprise the defendant of the charges against him so that he may prepare an adequate answer. In re Global Link Tele-com Corp., 327 B.R. 711, 718 (Bankr.D.Del. 2005). To provide fair notice, the complainant must go beyond merely parroting statutory language. Id. See also In re Circle Y of Yoakum, Texas, 354 B.R. 349, 356 (Bankr.D.Del.2006). A bankruptcy trustee, as a third party outsider to the debt- or’s transactions, is generally afforded greater liberality in pleading fraud. Global Link, 327 B.R. at 717. B. Greenwich’s Motion" } ]

[ { "docid": "22721966", "title": "", "text": "within one of the enumerated rights protected by § 1981. A Section 1981 reads as follows: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” Rev. Stat. § 1977. The most obvious feature of the provision is the restriction of its scope to forbidding discrimination in the “mak[ing] and enforce[ment]” of contracts alone. Where an alleged act of discrimination does not involve the impairment of one of these specific rights, § 1981 provides no relief. Section 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts. See also Jones v. Alfred H. Mayer Co., 392 U. S. 409, 436 (1968) (§1982, the companion statute to § 1981, was designed “to prohibit all racial discrimination, whether or not under color of law, with respect to the rights enumerated therein”) (emphasis added); Georgia v. Rachel, 384 U. S. 780, 791 (1966) (“The legislative history of the 1866 Act clearly indicates that Congress intended to protect a limited category of rights”). By its plain terms, the relevant provision in § 1981 protects two rights: “the same right ... to make . . . contracts” and “the same right . . . to . . . enforce contracts.” The first of these protections extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment. The statute prohibits, when based on race, the refusal to enter into a contract with someone, as well as the offer to make a contract only on discriminatory terms. But the right to make contracts does not extend, as a matter of either" } ]

[ { "docid": "23035313", "title": "", "text": "practice. . 42 U.S.C. § 2000e-2 states in pertinent part: (a) It shall be 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-3 states in pertinent part: It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. . 42 U.S.C. § 1981 states: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and no other. . Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), and see Garcia v. Gloor, 609 F.2d 156, 164 (5th Cir. 1980). . 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). . McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). 1. Circuit Judge CLARK with Circuit Judge KRAVITCH, concurring. Louis Pinkard was hired by Pullman-Standard in July 1962. He was assigned initially to the steel erection department as a freight assembler, a department which was 98% black with the sole exception of the riveter and foreman, who were white. For eight" }, { "docid": "17309696", "title": "", "text": "they attempted to contract for certain services; (3) they were denied the right to contract for certain services; and, (4) such services remained available to others outside the protected class. Defendants concede that Plaintiffs are able to meet the first two criteria, but they argue the Plaintiffs cannot meet the second two. Title 42 U.S.C. § 1981(a) provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C. § 1981(a). Absent direct evidence of discrimination the burden-shifting approach for inferential proof of discrimination set forth in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) is used in cases alleging a violation of 42 U.S.C. § 1981. Hollins v. Atlantic Co., 188 F.3d 652, 658 (6th Cir.1999) (citing Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132, (1989); Little Forest Med. Ctr. of Akron v. Ohio Civil Rights Comm’n, 61 Ohio St.3d 607, 575 N.E.2d 1164 (1991)). In this burdenshifting analysis: (1) the plaintiff must establish a prima facie case of racial discrimination; (2) the employer must articulate some legitimate, nondiscriminatory reason for its actions; and (3) the plaintiff must prove that the stated reason was in fact pretextual. Hollins, 188 F.3d at 658 (citing Harrison v. Metropolitan Gov’t of Nashville and Davidson County, 80 F.3d 1107, 1115 (6th Cir.1996)). The prima facie case that will need to be established differs slightly depending upon the Plaintiff and the specific facts in support of the alleged violations. See McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. 1817 (“The facts necessarily will vary" }, { "docid": "17309695", "title": "", "text": "service. Thus, neither of these Plaintiffs has a valid claim under § 1981 for the denial of these services. Likewise, there is no evidence that either of these two Plaintiffs were charged anything for services provided by the salon; thus, the Plaintiff employees do not have a claim under § 1981 with respect to Defendants price increases. The former employees may have potential claims against Defendants regarding the alleged failure to train with regard to African-American hair styles, but the other Plaintiffs clearly cannot assert these claims. Conversely, the customers and potential customers may have potential claims with respect to fade haircuts, relaxers, price increases, and products but these Plaintiffs cannot assert a claim for the alleged failure to train. For clarity, Plaintiffs will be divided into two groups— (1) former employees and (2) customers or potential customers. 42 U.S.C. § 1981 and related state law claims The Defendants assert that to establish a prima facie case of discrimination under this statute, the Plaintiffs must show: (1) they are members of a protected class; (2) they attempted to contract for certain services; (3) they were denied the right to contract for certain services; and, (4) such services remained available to others outside the protected class. Defendants concede that Plaintiffs are able to meet the first two criteria, but they argue the Plaintiffs cannot meet the second two. Title 42 U.S.C. § 1981(a) provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C. § 1981(a). Absent direct evidence of discrimination the burden-shifting approach for inferential proof of discrimination set forth in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and McDonnell Douglas Corp. v." }, { "docid": "22041996", "title": "", "text": "of retaliation. As such, the district court erred in granting summary judgment on Evans’s Title VII and TCHRA retaliation claims in favor of the City. VI. 42 U.S.C. § 1981 A. The District Court’s Order The district court also rejected Evans’s claims of racial discrimination under 42 U.S.C. § 1981 (1994). The court held that Evans could not sue under § 1981 because “the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units[.]” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). B. Analysis We conclude that the district court’s grant of summary judgment in favor of the City was proper. However, we reach this result under a different reasoning than that pronounced by the district court. 42 U.S.C. § 1981 reads as follows: (a) Statement of equal rights All persons within the jurisdiction of the United States shall have the same right in every State and. Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and ex-actions of every kind, and to no other. (b) “Make and enforce contracts” defined For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law. 42 U.S.C. § 1981 (1994). This is the present form of the statute. Congress added subsections (b) and (c) to the statute with the passage of the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071. Prior to the Civil Rights Act of 1991, racial discrimination relating to the general conditions of employment" }, { "docid": "11062951", "title": "", "text": "Magistrate Judge hereby RECOMMENDS that defendant’s motion for summary judgment be GRANTED as it relates to this claim. In summary, the undersigned finds that plaintiff has failed to establish evidence supporting a prima facie ease with regard to any of his Title VII claims. Accordingly, the undersigned RECOMMENDS that defendant’s motion for summary judgment be GRANTED as it relates to each of these claims. m U.S.C. § 1981 AND THE CIVIL RIGHTS ACT OF 1991 A Section 1981 claim concerns discrimination in the making and enforcement of contracts. The code at 42 U.S.C. § 1981 provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benéfit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. The United States Supreme Court imposed limitations on Section 1981 actions in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). In Patterson, the Supreme Court noted the narrow wording of Section 1981 and held that: Section 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts.... [T]he right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract has been established.... Id. 491 U.S. at 176-77, 109 S.Ct. at 2372-73. Accordingly, the Supreme Court denied plaintiff’s racial harassment claim as outside the scope of Section 1981. In Patterson v. McLean Credit Union the Supreme Court ruled that post-contract formation allegations of racially discriminatory conduct are not actionable under 42 U.S.C. § 1981, since § 1981 only guards against racial discrimination in the “making” of contracts and the right to “enforce” the contract through legal processes. Patterson, 491 U.S. at 176-79," }, { "docid": "21564528", "title": "", "text": "entitled to no compensatory damages, but awarded him $10,000 in punitive damages after finding that Brown Group “acted out of evil motive or intent, or acted with callous indifference to [Hicks’] federally protected rights,” Special Interrogatory No. 8. Finally, in response to Special Interrogatory No. 10, the jury found that Brown Group would have terminated Hicks even if his race or age had “not been a discernible or motivating factor or a determining factor in the decision to terminate.” The jury was not requested to consider the question of nominal damages. After modifying the jury verdict through a grant of additur in the amount of $1.00 nominal damages, the district court enforced the jury verdict by awarding Hicks $10,000 in punitive damages. Brown Group’s motion for a JNOV and Hicks’ motion for post-trial equitable relief were denied. The district court subsequently awarded Hicks $18,562.50 in attorneys’ fees and $2,189.00 in costs. This timely appeal and cross-appeal followed. After the United States Supreme Court decision in Patterson v. McLean Credit Union, 491 U.S. -, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), this court granted leave for the parties to file supplemental briefs. II. Section 1981 The threshold question we must address in this reverse race discrimination case is whether racially discriminatory discharge is actionable under Section 1981. Section 1981 provides as follows: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C. § 1981. In Patterson v. McLean Credit Union, 491 U.S. -, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) {Patterson), the United States Supreme Court limited the scope of Section 1981. The Court interpreted the meaning and scope of the rights “to make and enforce contracts,” and held that neither right extended to" }, { "docid": "19340271", "title": "", "text": "history.” Id. at 738,109 S.Ct. 2702. And in his short concurrence, he added the following: To hold that the more general provisions of 42 U.S.C. § 1981 establish a mode of liability for a particular category of offense by municipalities that is excluded from the closely related statute (42 U.S.C. § 1983) which deals more specifically with that precise category of offense would violate the rudimentary principles of construction that the specific governs the general, and that, where text permits, statutes dealing with similar subjects should be interpreted harmoniously. Id. at 738-39, 109 S.Ct. 2702. Thus, a majority, not merely a plurality, of the Court agreed that to infer a remedy against state actors under § 1981 would contravene the specific remedy created by Congress under § 1983. A few years after Patterson and Jett were decided, Congress enacted the Civil Rights Act of 1991, which re-codified the preexisting version of § 1981 as subsection (a)and added subsections (b) and (c). The statute now reads as follows: (a) Statement of equal rights All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) “Make and enforce contracts” defined For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law. 42 U.S.C. § 1981 (2012). The Supreme Court has recognized that Congress added subsection (b) “with the design to supersede Patterson ” by expanding the right to “make and enforce contracts” to include postformation conduct. CBOCS W., Inc. v." }, { "docid": "23116707", "title": "", "text": "over the Plaintiffs workbench.” Vance, 672 F.Supp. at 1410. . 42 U.S.C. § 1981 (1982) provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. . We reject the defendant’s contention that the district court's order for JNOV must be affirmed because racial harassment claims are not covered by § 1981. Appellee’s reliance on Patterson v. McLean Credit Union, 805 F.2d 1143 (4th Cir.1986), cert. granted, — U.S. -, 108 S.Ct. 65, 98 L.Ed.2d 29 (1987) is misplaced. In Patterson, the court contrasted the language of Title VII, which prohibits discrimination with respect to the \"terms, conditions or privileges of employment” with § 1981’s prohibition of discrimination in \"the making and enforcement of contracts.” We need not reach the issue of whether § 1981 covers \"pure” harassment claims, because Vance presented evidence that the harassment caused her to stop working at Western Way, thereby impairing her ability to make and enforce her employment contract. Furthermore, we have held that the legal elements of a disparate treatment claim are identical under Title VII and § 1981. Lincoln v. Board of Regents of Univ. Sys., 697 F.2d 928, 935 n. 6 (11th Cir.), cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983); see also Hamilton v. Rodgers, 791 F.2d 439, 442 (5th Cir.1986) (Showing a discriminatory and hostile work environment would establish a successful case under §§ 1981 and 1983. ”[W]hen these statutes are used as parallel causes of action with Title VII, they require the same proof to show liability-”). . It is hard to imagine an incident of this sort taking place in 1984. The grossness of hanging an object resembling a noose at the work station of a black female" }, { "docid": "8103954", "title": "", "text": "held that the Eleventh Amendment barred Holt from suing his own state in a federal court for damages. The district court granted summary judgment for the defendants on those claims for which Holt sought injunctive relief. 771 F.Supp. 201. The court relied on Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), overruled by Civil Rights Act of 1991, P.L. 102-166. In Patterson, the Supreme Court held that an employee’s claim of racial harassment relating to the conditions of employment is not actionable under § 1981 because the provision does not apply to conduct which occurs after formation of a contract and which does not interfere with the right to enforce established contract obligations. The court found that Holt’s allegations involved post-formation conduct on the part of his employer. Holt, proceeding pro se, appeals the summary judgment dismissal of his claims. II. Because Congress overturned Patterson after the district court decided this case, we must first determine whether the Civil Rights Act of 1991 applies retroactively. We hold that the Civil Rights Act of 1991 does not apply retroactively, that Patterson controls this case, and that Patterson precludes the plaintiff’s claims. We need not reach the Eleventh Amendment question briefed by both parties. A. Nonretroactivity of the Civil Rights Act of 1991 42 U.S.C. § 1981 provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. Under the short-lived Patterson regime, § 1981 protected only the right to make employment contracts and the right to enforce such contracts through the courts. The Patterson Court held that § 1981 does not apply to discrimination in the conditions of employment. Thus, under Patterson, an employer’s racially discriminatory conduct occurring after" }, { "docid": "22179513", "title": "", "text": "national origin.” 42 U.S.C. § 2000e-2(a)(l). Similarly, § 1981 guarantees that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” 42 U.S.C. § 1981. Likewise, § 202 of the Elliot-Larsen Act provides that “[a]n employer shall not ... [f]ail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment com pensation, or a term, condition or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.” Mich. Comp. Laws § 37.2202(l)(a). Absent direct evidence of discrimination, claims brought pursuant to Title VII’s antidiscrimination provision, § 1981, and the Elliot-Larsen Act are subject to the tripartite burden-shifting framework first announced by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and subsequently modified in Texas Dept of Comm. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See, e.g., Lindsay v. Yates, 498 F.3d 434, 440 n. 7 (6th Cir.2007) (“The McDonnell Douglas/Burdine framework applies only when discrimination plaintiffs rely on circumstantial evidence to prove their claims.”); Jackson v. Quanex Corp., 191 F.3d 647, 658 (6th Cir.1999) (“We review claims of alleged race discrimination brought under § 1981 and the Elliot-Larsen Act under the same standards as claims of race discrimination brought under Title VIL”). Under this framework, the plaintiff bears the initial “not onerous” burden of establishing a prima facie case of discrimination by a preponderance of the evidence. Burdine, 450 U.S. at 253, 101 S.Ct. 1089. To establish aprima facie case of employment discrimination, a plaintiff must demonstrate that: (1) he is a member of a protected class; (2) he was qualified for his job; (3) he suffered an adverse employment decision; and (4) he was replaced by a person outside the protected class or treated differently than similarly" }, { "docid": "15778253", "title": "", "text": "F.3d 992, 998 (2d Cir.1994). Individual Liability under § 1981 42 U.S.C. § 1981 states: (a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and ex-actions of every kind, and to no other. (b) For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship. (c) The rights protected by this section are protected by impairment by nongovernmental discrimination and impairment under color of state law. Section 1981 was passed under the Civil Rights Act of 1866 to implement the' 13th Amendment and to prohibit all discrimination based on race. See Jett v. Dallas Independent School District, 491 U.S. 701, 713-714, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). As construed by the courts for many years, § 1981 provided protection only to the procéss of making the employment contract, and therefore did not give rise to claims of racial or ethnic discrimination that occurred during the contractual relationship. See Patterson v. McLean Credit Union, 491 U.S. 164, 176, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). However, the Civil Rights Act of 1991 broadened § 1981 to include performance of the contract as part of the phrase “make and enforce contracts.” See 42 U.S.C. § 1981(b). Thus, acts of discrimination that occur at any time during the contractual relationship can also give rise to liability under § 1981. Defendants assert that, by keeping the language “make and enforce contracts,” Congress intended that’§ 1981 apply only to employers, and that individual employees of a corporation, who are not parties to the underlying employment contract, cannot be held liable under § 1981. As' both parties concede, the issue of whether § 1981" }, { "docid": "20840007", "title": "", "text": "whether or not a finding of “reasonable cause” in accordance with Section 706(a) and (e) of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5(a) and (e) is a jurisdictional prerequisite of the filing of this action). Defendant’s motion to dismiss or for summary judgment will be granted with respect to plaintiff’s claim for relief based upon alleged violations of Title VII of the Civil Rights Act of 1964. Defendant has moved this Court to dismiss plaintiff’s claim for relief based upon alleged violation of 42 U.S.C. § 1981, contending that § 1981 does not apply to purely private racial discrimination in employment. The issue presented by defendant on this motion has not been reached or expressly ruled upon by either the Eighth Circuit Court of Appeals or the United States Supreme Court. Section 42 U.S.C. § 1981 provides: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, tax- _ es, licenses, and exactions of every kind, and to no other.” In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) the United States Supreme Court held that 42 U.S.C. § 1982 which, like 42 U.S.C. § 1981, was derived from Section One of the Civil Rights Act of 1866 as reenacted by the Civil Rights Act of 1879, prohibited private racial discrimination in the purchase and sale of real property. In the course of the majority opinion, Justice Stewart said of the Civil Rights Act of 1866: “In light of the concerns that led Congress to adopt it and the contents of the debates that preceded its passage, it is clear that the Act was designed to do just what its terms suggest: to prohibit all racial discrimination, whether or not under color" }, { "docid": "12221883", "title": "", "text": "a law”). Franchise Tax Bd., 463 U.S. at 8-9 (parallel citations to S.Ct. Rep. and L.Ed. omitted). In interpreting the meaning of the phrase “arising under” in 28 U.S.C. § 1658, we must presume that Congress had in mind the well known interpretations of the same phrase in Article III, § 2 of the Constitution and/or the federal question statute. II. With these interpretations of the relevant statutory terms in mind, I turn to the particular claim at issue in this case. In September 1995, Madhat Zubi was terminated from his job at AT & T. On July 30, 1998, he commenced an action in federal court in New Jersey, claiming that he was discharged because of his race, in violation of 42 U.S.C. § 1981. Title 42 United States Code § 1981, in its current form, provides as follows: (a) Statement of equal rights All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and ex-actions of every kind, and to no other. (b) “Make and enforce contracts” defined For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (c)Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law. This provision is not itself an Act of Congress; rather, it is a codification of two prior Acts. Subsection (a) of § 1981 is a codification of Section 1977 of the Revised Statutes of 1874. Until 1989, it was unsettled whether the phrase “make and enforce contracts” in this provision reached the discriminatory termination of a contractual relationship, but in Patterson v. McLean Credit Union, 491 U.S." }, { "docid": "9765855", "title": "", "text": "dossier. (R. at 1515-17, 1910-11.) . \"The district court shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. . Prior to Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), civil rights plaintiffs invoking district court jurisdiction in a case such as this could rely on the substantive provisions of 42 U.S.C. § 1981. Section 1981 provides, in relevant part, as follows: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. However, in Patterson, the Supreme Court restricted the applicability of § 1981 to the making of a contract and its enforcement in the courts and barred its application to discrimination claims after employment pursuant to a contract commenced. Congress reversed the Supreme Court's restrictive interpretation of 1981 by its 1991 amendments to the Civil Rights Act of 1964. Nevertheless, because the events of this suit occurred prior to the 1991 amendments to the Civil Rights Act and because the 1991 Act is not retroactive, see Landgraf v. USI Film Products, et al., - U.S. -, -, 114 S.Ct. 1483, 1487-88, 128 L.Ed.2d 229 (1994), the 1991 amendments do not apply here. . Judge Cedarbaum previously ruled that plaintiff's age discrimination claim had been omitted in plaintiff's complaint in this court. (R. at 2391.) However, the age discrimination claim was part of plaintiff's complaint before the EEOC. It is within the court’s discretion to permit amendments to the complaint. Gomes v. Avco Corp., 964 F.2d 1330, 1335 (2d Cir.1992) (\"grant of leave to amend a complaint is left to the sound discretion of the district court”). Given that plaintiff’s age discrimination claim was first" }, { "docid": "7028960", "title": "", "text": "either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions.” Id. at-, 109 S.Ct. at 2373. On the other hand, the Court held that discrimination in promotions is actionable under § 1981 where “the promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer.” Id. at-, 109 S.Ct. at 2377. The issue of whether plaintiff’s claim for discriminatory firing was actionable under § 1981 was not before the Court as the jury had returned a verdict in favor of the defendant on that claim at trial. In Patterson, the Court was faced with the task of interpreting the breadth of § 1981, which provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains penalties, taxes, licenses, and exactions of every kind, and to no other. The Court noted the narrow wording of the statute, and concluded that “[sjection 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts.” Id. at-, 109 S.Ct. at 2372. United’s argument fails because termination is part of the making of a contract. A person who is terminated because of his race, like one who was denied an employment contract because of his race, is without a job. Termination affects the existence of the contract, not merely the terms of its performance. Thus, discriminatory termination directly affects the right to make a contract contrary to § 1981. In Patterson, the Fourth Circuit agreed with this conclusion. Patterson v. McLean Credit Union, 805 F.2d 1143, 1145 (4th Cir.1986). “Claims of racially discriminatory hiring," }, { "docid": "20128000", "title": "", "text": "1304, 1312 (11th Cir.2010); accord Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1174 n. 6 (11th Cir.2010); see also Alexander v. Fulton County, Ga., 207 F.3d 1303, 1314 n. 6 (11th Cir.2000) (quoting Standard v. A.B.E.L. Servs., 161 F.3d 1318, 1330 (11th Cir.1998)) (“Both [Title VII and § 1981] have the same requirements of proof and use the same analytical framework, therefore we shall explicitly address the Title VII claim with the understanding that the analysis applies to the § 1981 claim as well.”). As such, this Court will use Title VTI cases interchangeably with § 1981 cases. 42 U.S.C. § 1981 prohibits intentional discrimination on the basis of race in the making and enforcing of public and private contracts, including employment contracts. Ferrill v. Parker Group, Inc., 168 F.3d 468, 472 (11th Cir.1999) (citing Johnson v. Railway Express Agency, 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975)). Specifically, § 1981 provides: (a) Statement of equal rights All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) “Make and enforce contracts” defined For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law. 42 U.S.C. § 1981. Thus, § 1981 provides a cause of action for race-based employment discrimination including wrongful termination, retaliation, and a racially hostile work environment. The elements of a cause of action under § 1981 are “(1) that the plaintiff is a member of a racial minority;" }, { "docid": "19340265", "title": "", "text": "on a violation of § 1981 that could not have occurred before the Civil Rights Act of 1991 amended that statute. Thus, one might argue that § 1658’s four-year statute of limitations should apply regardless. However, Campbell has disavowed any reliance on § 1983; therefore, we express no opinion on that issue, and we turn to whether he may proceed directly under § 1981. The statute now codified at 42 U.S.C. § 1981 evolved from § 1 of the Civil Rights Act of 1866. Jones, 541 U.S. at 372, 124 S.Ct. 1836. “It was amended in minor respects in 1870 and recodified in 1874, but its basic coverage did not change prior to 1991.” Id. (citation omitted). Until then, it provided as follows: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and no other. 42 U.S.C. § 1981 (1988). By 1976, it was well established that § 1981 prohibits racial discrimination in the making and enforcement of private as well as public contracts. Runyon v. McCrary, 427 U.S. 160, 168, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). In addition, the Supreme Court had held that “ § 1981 affords a federal remedy against discrimination in private employment on the basis of race.” Id. at 172, 96 S.Ct. 2586 (quoting Johnson, 421 U.S. at 459-60, 95 S.Ct. 1716). However, in the late 1980s, the Court limited the scope of § 1981 in the context of private employment. In Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Court was confronted with the question whether racial harassment in the workplace was actionable under § 1981. In addition, after oral argument, the Court asked the parties to brief the question whether Runyon’s interpretation" }, { "docid": "10527190", "title": "", "text": "of the Supreme Court’s recent decision in Patterson v. McLean Credit Union, — U.S. -, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Second, Edison argues that the Rehabilitation Act claim should be dismissed because it is time barred. We consider each of these arguments in turn. A. The § 1981 Claims. Bush claims that Edison violated § 1981 when it demoted him, when it failed to promote him, and when it ultimately fired him. The statute provides that: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. “By its plain terms, the relevant provision in § 1981 protects two rights: 'the same right ... to make ... contracts’ and ‘the same right ... to ... enforce contracts.’ ” Patterson, 109 S.Ct. at 2372. As a threshold matter, we note that Bush’s claims do not implicate the § 1981 right to enforce contracts. This protection extends only to conduct which impedes a citizen’s access to the courts or other nonjudicial methods of enforcing contractual rights. There are no allegations in the complaint which suggest that Edison created any such impediment. Therefore, if Bush’s claims are actionable under § 1981, the challenged conduct must infringe the right to make contracts. In Patterson v. McLean Credit Union, the Supreme Court clearly delineated the scope of this right. The Court stated that, [The right to make contracts] extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment. The statute prohibits, when based on race, the refusal to enter into a contract with- someone, as well as the offer to make a contract only on discriminatory terms. But the right to make contracts does not extend, as" }, { "docid": "19264438", "title": "", "text": "regarding equal rights under the law. These sections provide: § 1981. Equal rights under the law. All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. § 1982. Property rights of citizens. All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property. To prevail on a claim under either section 1981 or 1982, plaintiffs must prove intentional discrimination on the part of defendants. General Building Contractors Assoc, v. Pennsylvania, 458 U.S. 375, 388-89, 102 S.Ct. 3141, 3148-49, 73 L.Ed.2d 835 (1982); Svatik, 779 F.2d at 387; Kaplan, 567 F.Supp. at 56. Again, as discussed previously, the evidence at trial made no showing of intentional discrimination on the part of defendants. Because plaintiffs adduced no direct proof of discriminatory intent they seem to rely, once again, on indirect proof. See Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Fumco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978); McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The court holds that the overwhelming evidence at trial established that First Federal’s loan practices did not have an impermissible adverse impact on black applicants. Therefore, the court GRANTS defendants judgment on plaintiffs’ section 1981 and 1982 claims. CONCLUSION Based on the foregoing, the court finds that defendants should prevail on all of plaintiffs’ claims and it is hereby ADJUDGED that plaintiffs take nothing by their complaint. The Clerk of the Court is directed to ENTER JUDGMENT in favor of defendants. . Rosie Thomas testified" }, { "docid": "9860872", "title": "", "text": "termination. A. The scope of § 1981 Section 1981 was originally the first section of the Civil Rights Act of 1866. It provided as follows: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. Runyon v. McCrary, 427 U.S. 160, 164 n. 1, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) (setting forth statute); see also id. at 168-70 & n. 8, 96 S.Ct. 2586 (describing derivation of statute). In Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), although the Supreme Court recognized that § 1981 “ ‘prohibits racial discrimination in the making and enforcement of private contracts,’ ” id. at 171, 109 S.Ct. 2363 (quoting Runyon, 427 U.S. at 168, 96 S.Ct. 2586), it rejected the claim that § 1981 also applied to “conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions,” id. at 177, 109 S.Ct. 2363. Congress passed the Civil Rights Act of 1991 in response to Patterson. See H.R.Rep. No. 102-40(11), at 2 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 694-95 (“The Act overrules the Supreme Court’s 1989 decision in Patterson .... By restoring the broad scope of Section 1981, Congress will ensure that all Americans may not be harassed, fired or otherwise discriminated against in contracts because of their race.”). The 1991 Act amended § 1981 by adding two additional provisions to the statute, and by designating the preexisting provision as § 1981(a). Section 1981(b), the provision relevant to this case, states: For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits," } ]

[ { "docid": "22744038", "title": "", "text": "Trade-marks, 9 ; Taylor v. Carpenter, 2 Sandf. (N. Y.) Ch. 603; Coddington, Dig. 9. Complainant’s, pills have been in the market as a vendible article for more than forty years, and during that whole period have.been sold under tradgrinarks of the forms heretofore sufficiently described, and they are still sold under. the trade-mark mentioned in the decretal order. Difficulty frequently arises in determining the question of. ■ infringement; but it is clear that exact similarity is- not required, as that requirement would always enable the wrongdoer to evade responsibility for his wrongful acts. . Colorable imitation, which requires caréful inspection to distinguish the spurious trade-mark from the genuine,-‘is sufficient to, maintain the issue -; but a court of equity will not interfere, when ordinary attention, by the purchaser of- the article would, enable him at once to discriminate the one from the other. Where.'the- similarity is sufficient to convey a false impression to the public mind, and is of a character to mislead and deceive the ordinary purchaser in the exercise of ordinary care- and caution in such matters, it is sufficient to give the.injured party a right to redress, if he has béen guilty of no laches:' Amoskeag Manufacturing Co. v. Spear, 2 Sandf. S. C. 599; Coddington, Dig. 109; McAndrew v. Bassett, 4 DeG., J. & S. 380. Argument to show that the name of the pills, as given in the trade-mark of the respondent, was of a character to mislead and. deceive, is, scarcely necessary, as they are idem sonans in the usual pronunciation; nor can it be doubted that the form of the box containing the pills and the general- appearance of. the . wrapper which surrounded it were calculáted to have the' same effect. Mention may also be made of the fact- that the color of the label, and the wax impression on the top- of the box are well suited to divert the attention of the unsuspecting buyer from any critical examination of the prepared article. Chancery protects trade-marks upon the ground that á party shall not' be permitted to sell his own" } ]

[ { "docid": "23094593", "title": "", "text": "evidence. If Robert J. Marx and the appellees ever had su'ch a purpose, they never used any means calculated to accomplish it, and they adopted those admirably suited to defeat it. Their intention, therefore, becomes immaterial. A wrong done or threatened, and consequent injury or probable injury to the complainant, are indispensable elements of every cause of action. The intention to injure another, if no injury is done, and none ever will be done, constitutes no ground for relief. The intention on the part of the alleged infringer to induce purchasers, through the use of a simulated trade-mark, to buy his goods under the belief that they are another’s furnishes no ground for relief, unless the similarity between the two trade-marks is of a character ‘to convey a false impression to the public mind, * * * and to mislead and deceive the ordinary purchaser.’ McLean v. Fleming, 96 U.S. 254, 256 [24 L. Ed. 828]; N. K. Fairbank Co. v. R. W. Bell Mfg. Co., 77 F. 869, 876, 23 C.C.A. 554. The reason for this rule is that neither actual nor probable ‘injury,’ in the legal sense of that word, results from the use of a trade-mark that is not calculated to mislead the public, or to deceive the purchaser, and hence one'of the indispensable elements of a good cause of action is wanting. Whatever may have been the intention of Robert J. Marx and the appellees in adopting and using their trademark, it does not sufficiently resemble that of the appellant to mislead purchasers, or to convey a false impression to the public. There is no evidence in the record that the appellant has ever suffered any injury from any deception caused by it, and there is no probability that it ever will. Such a case presents no ground for relief, either at law or in equity.” See also N. K. Fairbank Co. v. R. W. Bell Mfg. Co., 2 Cir., 77 F. 869, 876; Allen B. Wrisley Co. v. Iowa Soap Co., 8 Cir., 122 F. 796, 797; United States Tobacco Co. v. McGreenery, C.C., 144" }, { "docid": "5508167", "title": "", "text": "from its ability to identify, and it is this fact which underlies the law’s protection of trademark rights. As Justice Frankfurter explained in Mishawaka Rubber & Woolen Manufacturing Co. v. S. S. Kresge Co., 316 U.S. 203, 205, 62 S.Ct. 1022, 1024, 86 L.Ed. 1381 (1942): “The protection of trade-marks is the law’s recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trade-mark is a merchandising short-cut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol. Whatever the means employed, the aim is the same — to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained, the trade-mark owner has something of value. If another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress.” The similarity between the use of the term “gobble-gobble” by plaintiff and defendant is likely to create confusion in consumers’ minds, impairing the mark’s function as a symbol of plaintiff’s name and goods and thereby destroying the mark’s value to plaintiff. “The key aspect of this prerequisite is proof that the feared injury is irreparable; mere injury, even if serious or substantial is not sufficient.” United States v. Pennsylvania, 533 F.2d 107, 110 (3d Cir. 1976). In a case of trademark infringement, irreparable injury may occur in a variety of ways. For example, a plaintiff may suffer irreparable damage to its goodwill if the infringement causes consumers to misidentify the infringer’s inferior goods as those of the plaintiff. Villager, Inc. v. Dial Shoe Co., 256 F.Supp. 694, 698-99 (E.D.Pa.1966); Chips ’N Twigs, Inc. v. Blue Jeans Corp., 146 F.Supp. 246, 248 (E.D.Pa.1956). Although there is no evidence of product inferiority in this case, the fact that plaintiff" }, { "docid": "6345296", "title": "", "text": "to convey a false impression to the public mind, and is of a character to mislead and deceive the ordinary purchaser in the exercise of ordinary care and caution -in -such matters, it is sufficient to give the injured party a right to redress, i-f' he has been guilty of no laches.” The protection which is to be accorded the legal owner of a valid trade-mark extends beyond the sole use thereof in the marketing of his product by various forms of container merchandising. Even though the -statute does not include the term “advertising,” -it has been construed that “signs” and “prints” used in advertising constitute a use of such material “in connection with the sale of merchandise.” There is ample authority to the effect that leaflets, display cards, and newspaper advertising will support a -claim of infringement. In Rosenberg Bros. & Co. v. Elliott, 3 Cir., 7 F.2d 962, 967, it was -said that “advertisements tend readily to deceive the public.” Advertisements were also the grounds for complaint of infringement in Jantzen Knitting Mills v. Spokane Knitting Mills, D.C., 44 F.2d 656; Trimble v. Woodstock Mfg. Co., D.C., 297 F. 524, 528. The exhibits in the form of leaflets, display cards, and newspaper advertisements used by the defendant to promote the sale of its products have definite points of similarity with 'the trade-mark of the plaintiff. Primarily, -both depict the necessary act involved in the use of their respective products, which is the pouring of material into a toilet 'bowl. Four factors, the bathroom, the maid, the act of pouring from a can, and the bowl, are common to both the trademark and the advertising portrayals. Thus considered, the advertising material must be characterized as a colorable -imitation of the plaintiff’s trade-marks. Concededly there are variations, and -this would necessarily be so if exact reproduction was .to be avoided; but the differences are minor, such as the apparent age and attire of the respective maids. In two of the display cards used by the defendant was a cut-out wherein was placed for display a can of its product, with" }, { "docid": "12750397", "title": "", "text": "In short, a mark which is no more than descriptive is not a valid trade-mark at common law. William R. Warner & Company v. Eli Lilly & Company, 265 U.S. 526, 528, 44 S.Ct. 615, 68 L.Ed. 1161; New York & New Jersey Lubricant Co. v. O. W. Young, Err. & App., 84 N.J.Eq. 469, 470, 94 A. 570; Mississippi Wire Glass Co. v. Continuous Glass Press Co., Ch., 79 N.J. Eq. 277, 279, 81 A. 374; Restatement, Torts (1938) § 721. Nor may the word, being merely descriptive, be said to acquire a preemptive secondary meaning. Mississippi Wire Glass Co. v. Continuous Glass Press Co., loc. cit. supra. In this case the word “Specs” is but a figurative description of the plaintiff’s articles of manufacture and does not grow out of either the origin or ownership of the goods. The designation, therefore, does not entitle the plain-'ll! to the exclusive use of the word or its synonyms. And, even if “Specs” were a valid trade-mark, the right of the plaintiff would extend no further than to protection against the unfair use of a similar trademark by a competitor who seeks thereby to palm off his goods as those of the plaintiff. The rule as laid down by the Supreme Court and as applied in New Jersey is that no trader can adopt a trade-mark, so resembling that of another trader that ordinary customers, buying with usual caution, are likely to be misled. McLean v. Fleming, 96 U.S. 245, 251, 24 L.Ed. 828; A. Hollander & Son, Inc., v. Philip A. Singer & Brother, Inc., Ch., 119 N.J.Eq. 52, 59, 180 A. 671, affirmed Err. & App., 120 N.J.Eq. 76, 183 A. 296. The test is whether the public is likely to be deceived by the alleged infringing name. Rosenthal v. Blatt, Ch., 80 N.J.Eq. 90, 93, 83 A. 387. And the burden is on the one complaining to show by a fair preponderance of the evidence that the ordinary run of purchasers, giving that attention which such persons usually give to the buying of articles of the character involved," }, { "docid": "23691003", "title": "", "text": "37 L.Ed. 1144; Koehler v. Sanders, 122 N.Y. 65, 25 N.E. 235, 9 L.R.A. 576. Appellant rests its cause of action both on the law of technical trade-marks and unfair competition. This being true, it becomes essential to ascertain the distinctions as well as the resemblance between the two legal principles. The underlying concept of each is the same; namely, the prevention of that which in its operation and results is a fraud upon the public and an injury to the rival trader. Delaware & H. Canal Co. v. Clark, 80 U.S. 311, 322, 13 Wall. 311, 20 L.Ed. 581. But, while the idea of fraud lies at the foundation of the law of technical trade-marks as well as that of unfair competition, it must be remembered that fraud may rest in actual intent shown by evidence or inferred from the circumstances or conclusively presumed from the act. Fraudulent intent must be shown by the evidence or be inferable from the circumstances in cases of unfair competition but where one uses the trade-mark or trade symbol of a competitor, fraud will be presumed from the wrongful use. No one has the right to use the technical trade-mark of another in connection with like goods but if he does and persists after being notified to desist, fraud and imposition, which constitute the essence of the injury, will be presumed and relief granted. Lawrence Mfg. Company v. Tennessee Mfg. Company, 138 U.S. 537, 549, 11 S.Ct. 396, 34 L.Ed. 997; McLean v. Fleming, 96 U.S. 245, 252, 24 L.Ed. 828; H. E. Winterton Gum Co. v. Autosales Gum & Chocolate Co., 6 Cir., 211 F. 612. Appellant having acquired the exclusive right to the use upon its shoes of the trade-mark heretofore described, the remaining question is: Would the coloring and markings of appellee’s lifts and heels, excluded' from the injunction, likely mislead the ordinary or usual buyer into believing that he was purchasing goods manufactured by appellant. All of the heels manufactured by appellant had a red circular figure or red ball on the tread face in approximately the center thereof" }, { "docid": "12750398", "title": "", "text": "than to protection against the unfair use of a similar trademark by a competitor who seeks thereby to palm off his goods as those of the plaintiff. The rule as laid down by the Supreme Court and as applied in New Jersey is that no trader can adopt a trade-mark, so resembling that of another trader that ordinary customers, buying with usual caution, are likely to be misled. McLean v. Fleming, 96 U.S. 245, 251, 24 L.Ed. 828; A. Hollander & Son, Inc., v. Philip A. Singer & Brother, Inc., Ch., 119 N.J.Eq. 52, 59, 180 A. 671, affirmed Err. & App., 120 N.J.Eq. 76, 183 A. 296. The test is whether the public is likely to be deceived by the alleged infringing name. Rosenthal v. Blatt, Ch., 80 N.J.Eq. 90, 93, 83 A. 387. And the burden is on the one complaining to show by a fair preponderance of the evidence that the ordinary run of purchasers, giving that attention which such persons usually give to the buying of articles of the character involved, would likely be deceived. The only evidence adduced by the plaintiff in this case to show confusion of purchasers was three letters addressed to his company in which the term “goggles” was used to describe the device about which inquiry was being made. Certainly there is no similarity in the spelling or sound of the words “Specs” and “Goggles”; and the meager instances of confusion to which the plaintiff points are more properly attributable to carelessness or inattention on the part of the inquirers rather than to the conduct of the competitor. Rosenthal v. Blatt, loc. cit. supra. In our opinion, the plaintiff failed to make out a case by a fair preponderance of the evidence either as to confusion of the buying public or deception by the defendant. Likewise, the failure to establish a case of trade-mark infringement is fatal to the plaintiff’s claim of unfair competition for the latter is based entirely upon the defendant’s use of the word “Goggles”. The learned trial judge, having found the patents in suit valid and infringed" }, { "docid": "22780683", "title": "", "text": "bearing the trade-mark of the real owner were well aware that they were not of the complainant’s manufacture. If the goods were so supplied by the wrong-doer for the purpose of béing resold in the market, the injury to the complainant is sufficient to entitle him to relief in equity. Nor is it necessary, in order to entitle the party to relief, that proof should be given of persons having been actually deceived, or that they bought goods in the belief that they were of the manufacture of the complainant, provided that the court is satisfied that the resemblance is such as would be likely to cause the one mark to be mistaken for the other. Edelston v. Edelston, 1 De G. J. & S. 185; McAndrew v. Bassett, 4 id. 380; Sebastian, Trade-marks, 70. Two trade-marks are substantially the same in legal contemplation, if the resemblance is such as to- deceive an ordinary purchaser giving such attention to the same as such purchaser usually gives, and to cause him to purchase the one supposing it to be the other. Gorham Company v. White, 14 Wall. 511; McLean v. Fleming, 96 U. S. 245, 256; Adams, Trade-marks, 107. Difficulties attend the effort to describe with precision what resemblance is necessary to constitute an infringement, and perhaps it is not going too far to say that the term is incapable of . exact definition as applied to all cases. Grant that, and still it is safe to say that no manufacturer or merchant can properly adopt a trade-mark so resembling that of another engaged in the same business as that ordinary purchasers buying with ordinary caution are likely to be misled. Positive evidence of fraudulent intent is not required where the proof of infringement is clear, as the liability of the infringer arises from the fact that he is enabled through the unjustifiable use of the trade-mark to sell a simulated article as and for the one which is genuine. McLean v. Fleming, supra. Unless the simulated trade-mark bears a resemblance to that which is genuine, it is clear that the" }, { "docid": "6289116", "title": "", "text": "article by such dominating word, the use of such word by another in marking similar goods may constitute infringement, although the latter mark, aside from such dominating word, may be dissimilar. In determining whether an alleged infringing trade-mark is sufficiently similar to be deceptive, and therefore an infringement, ordinary purchasers, buying under the usual conditions prevailing in the trade, and giving such attention as such purchasers usually give in buying that class of goods, are the standard. Whether an imitation which is not an exact copy constitutes an infringement depends upon whether the resemblance is such as to he likely to deceive purchasers of the standard above defined and cause them to believe in purchasing the goods of the defendant that they are the goods of the plaintiff. In other words, if the resemblance is such as would deceive ordinary purchasers of the goods using ordinary caution, the trade-mark is infringed. McLean v. Fleming, supra; Ansehl v. Williams (C. C. A. 8) 267 F. 9, 15; Ward Baking Co. v. Potter-Wrightington, Inc. (C. C. A. 1) 298 F. 398, 401; Stark v. Stark Bros. N. & O. Co., supra. In the final analysis, it is by the application of this test to the particular facts of each individual case that the question of infringement must be determined. There is no doubt under the evidence in the instant case that the word “Queen” is the dominating word and distinguishing feature of plaintiff’s trade-mark, and that the public has come to know plaintiff’s products as “Queen” dresses and aprons. While it is true there is dissimilarity in the' two marks in a number of minor details, the dominating or distinguishing word is the same in both. Such being the facts, we think the label or mark employed by the defendant would likely deceive ordinary purchasers of such goods using ordinary caution. In a suit for the infringement of a registered trade-mark, it is not necessary for the complainant, in order to establish infringement, to show wrongful intent in fact on the part of the defendant, or facts justifying the inference of such" }, { "docid": "12465726", "title": "", "text": "in the sale of goods of one manufacturer or dealer as those of another by means of the use of such trademark. Esso, Inc., v. Standard Oil Co. [8 Cir., 98 F.2d 1], supra; F. W. Fitch Co. v. Camille, Inc. [8 Cir., 106 F.2d 635], supra. To warrant relief in equity, it must appear that false representation is directly or impliedly made.” (Emphasis added.) The test for determining whether or not the use of a trademark by one infringes on the rights thereto of another is outlined in 87 C.J.S. TradeMarks, Trade Names, and Unfair Competition, §§ 68-70: “Whether or not an imitation which is not an exact copy constitutes an infringement depends on whether the resemblance is sufficiently close to deceive purchasers and so pass off the goods of one man as being those of another * * Page 289. “In determining whether an alleged infringing trade-mark is sufficiently similar to plaintiff’s trade-mark to be deceptive, and therefore an infringement, the standard is whether ordinary purchasers, buying under the usual conditions prevailing in the trade, and giving such attention as such purchasers usually give in buying that class of goods, would be deceived.” Page 295. “What similarity between two marks is sufficient to deceive, and hence to constitute an infringement, is a ques tion of fact to be determined in each case by its own circumstances, and prior decisions are not conclusive but are helpful only as laying down general principles.” Page 297. When all factors surrounding the use by Plastics Research of the term “Rebel” are considered in connection with those surrounding the use of “REB-L” by Robinson, it is clear that deception or confusion of the public would not likely result. Here we are dealing with fishing tackle, a highly specialized type of goods which is used by a segment of the population composed almost entirely of professional and amateur fishermen. In purchasing their equipment, these people exercise a high degree of care to make certain they purchase exactly what they want. It is unlikely that these people would readily be confused even if the trademarks" }, { "docid": "7050908", "title": "", "text": "were not used by the complainant, it succeeded in so differentiating the dress of its goods from that of the goods of the complainant that it escaped infringement. They call attention to the fact that there is no testimony that the defendant ever intended to deceive any one into the belief that its goods were those of the complainant and none that any purchaser ever was deceived. But this cause is based solely on the complainant’s ownership of a common-law or technical trade-mark. If the defendant infringes the right to that trade-mark, which is valuable property of the complainant, if it trespasses upon that property, the complainant is entitled to an injunction against the continuance of that infringement, whether its infringement was or is intentional or not. and whether the trespass upon the complainant’s property was or is injurious or not. Intent and damage are immaterial here. Hutchinson, Pierce & Co. v. Loewy, 163 Fed. 42, 90 C. C. A. 1; Lawrence Manufacturing Co. v. Tennessee Manufacturing Co., 138 U. S. 537, 11 Sup. Ct. 396, 34 L. Ed. 997; Gannert v. Rupert, 127 Fed. 962, 62 C. C. A. 594. The complainant has the right to the exclusive use of its annular band upon its packages of baking soda and baking powder for the purpose of distinguishing the origin and character of its products from those of all other manufacturers and dealers, and any one who, affixes that trademark to similar articles in such a way that his use of it is liable to cause confusion in the trade, or is calculated to mislead purchasers and induce them to buy his articles as the goods of the complainant, deprives the latter of the full benefit of its property and becomes an infringer. The use of any simulation of a trade-mark which is likely to induce common purchasers, exercising ordinary care, to buy the article to which it is affixed as the product of the owner of the trademark, is an infringement of the owner’s right and entitles him to equitable relief. McLean v. Fleming, 96 U. S. 245, 251," }, { "docid": "6345295", "title": "", "text": "in such a way as to make it likely that ordinary purchasers of its goods would confuse them with those of the plaintiff. And we have held in .this circuit that this ultimate question of the likelihood of consumer confusion as to source is one of fact.” The authoritative case on this issue appears to be McLean v. Fleming, 96 U.S. 245, 251, 255, 24 L.Ed. 828, wherein it was held: “What degree of resemblance is necessary to constitute an infringement is incapable of exact definition, as applicable to all cases. All that courts of justice can do, in that regard, is to say that no .trader can adopt a trade-mark, so resembling that of another trader, as that ordinary purchasers, buying with ordinary caution, are likely to- be misled. * * * Difficulty frequently arises in determining the question of infringement; but it is clear that exa-ct similarity is not required, as that requirement would always enable the wrong-doer to evade responsibility for his wrongful acts. * * * Where the similarity is sufficient to convey a false impression to the public mind, and is of a character to mislead and deceive the ordinary purchaser in the exercise of ordinary care and caution -in -such matters, it is sufficient to give the injured party a right to redress, i-f' he has been guilty of no laches.” The protection which is to be accorded the legal owner of a valid trade-mark extends beyond the sole use thereof in the marketing of his product by various forms of container merchandising. Even though the -statute does not include the term “advertising,” -it has been construed that “signs” and “prints” used in advertising constitute a use of such material “in connection with the sale of merchandise.” There is ample authority to the effect that leaflets, display cards, and newspaper advertising will support a -claim of infringement. In Rosenberg Bros. & Co. v. Elliott, 3 Cir., 7 F.2d 962, 967, it was -said that “advertisements tend readily to deceive the public.” Advertisements were also the grounds for complaint of infringement in Jantzen Knitting Mills" }, { "docid": "3983935", "title": "", "text": "likely to he misled. In McLean v. Fleming, supra, the court (cit ing Gorham Co. v. White, 14 Wall. 511) said: “Two trade-marks are substantially the same, in legal contemplation, if the resemblance is such as to deceive an ordinary purchaser, giving such attention to the same as such a purchaser usually gives, and to cause him to purchase the one, supposing it to be the other.” The resemblance need not be such as would deceive persons who should see the two marks placed side by side. Seixo v. Provezende, 1 Ch. App. 192, 195. “Similarity, not identity,” said Judge Bradley in Celluloid Manuf’g Co. v. Cellonite Manuf’g Co., 32 Fed. 94, 97, “is the usual recourse when one party seeks to benefit himself by the good name of another. What similarity is sufficient to effect the object has to be determined in each case by its own circumstances. We may say, generally, that a similarity which would be likely to deceive or mislead an ordinary, unsuspecting customer is obnoxious to the law.” Applying that standard, and considering the nature and circumstances of the case, Judge Bradley there held that the name, “Cellonite Manufacturing Company,” was sufficiently similar to that of the “Celluloid Manufacturing Company” to amount to an .infringement of the latter trade-name. The material facts of the present case are these: Yearly 40 years ago the plaintiff, Alexis Godillot, Jr., devised and adopted as a trade-mark a monogram composed of the letters “A” and “G” tastefully combined. Thereafter this trade-mark was constantly used in the United States by the plaintiff, and by others acting under him, upon and in connection with the sale of groceries, food products, and kindred articles. During the whole of the named period, and' down to the present time, the plaintiff has owned and conducted factories in France in which fancy groceries were and are prepared for market in the United States and elsewhere; and in connection with this trade the plaintiff has uninterruptedly used, and is now using, said trade-mark. This trade-mark has been printed in different colors and sizes upon labels which" }, { "docid": "22254581", "title": "", "text": "recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trade-mark is a merchandising short-cut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol. Whatever the means employed, the aim is the same, to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained, the trade-mark owner has something of value. If another poaches upon the commercial magnetism of the symbol he -has created, the owner can obtain legal redress.” Mishawake Rubber & Woolen Mfg. Co. v. Kresge Co., 316 U.S. 203, 20S, 62 S.Ct. 1022, 1024, 86 L.Ed. 381. With essential qualifications, one infringes the trade-mark of another- if the designation he uses to identify his goods is “identical with or confusingly similar” to another’s protected trade-mark. 3 Torts A.L.I., Sec. 717. The degree of resemblance or similarity necessary to constitute infringement is often incapable of exact definition. McLean v. Fleming, 96 U.S. 245, 24 L.Ed 828. Restatement has however listed the following as important factors entering into the equation: “(a) the degree of similarity between the designation and the trade-mark or trade name in (i) appearance; (ii) pronunciation of the words used; (iii) verbal translation of the pictures or designs involved; (iv) suggestion; (b) the intent of the actor in adopting the designation; (c) the relation in use and manner of marketing between the goods or services marketed by the actor and those marketed by the other; (d) the degree of care likely to be exercised by purchasers.” 3 Torts A.L.I., Sec. 729. It is the generally accepted rule that a designation is confusingly similar to a trade-mark if an ordinary prospective purchaser, exercising due care'in the circumstances, is likely to regard it as coming from the same source" }, { "docid": "22254582", "title": "", "text": "his goods is “identical with or confusingly similar” to another’s protected trade-mark. 3 Torts A.L.I., Sec. 717. The degree of resemblance or similarity necessary to constitute infringement is often incapable of exact definition. McLean v. Fleming, 96 U.S. 245, 24 L.Ed 828. Restatement has however listed the following as important factors entering into the equation: “(a) the degree of similarity between the designation and the trade-mark or trade name in (i) appearance; (ii) pronunciation of the words used; (iii) verbal translation of the pictures or designs involved; (iv) suggestion; (b) the intent of the actor in adopting the designation; (c) the relation in use and manner of marketing between the goods or services marketed by the actor and those marketed by the other; (d) the degree of care likely to be exercised by purchasers.” 3 Torts A.L.I., Sec. 729. It is the generally accepted rule that a designation is confusingly similar to a trade-mark if an ordinary prospective purchaser, exercising due care'in the circumstances, is likely to regard it as coming from the same source as the trademarked article., Schneider Brewing Co. v. Century Distilling Co., supra; Victor American Fuel Co. v. Huerfano Agency Co., D.C., 15 F.2d 578; Solis Cigar Co. v. Pozo, 16 Colo. 388, 26 P. 556, 25 Am.St. Rep. 279; Driverless Car Co. v. Glessner-Thornberry Driverless Car Co., 83 Colo. 262, 264 P. 653; Dwinell-Wright Co. v. National Fruit Product Co., 1 Cir., 140 F.2d 618; 3 Torts A.L.I., Sec. 728.- The question is usually one of fact (Seven Up Co. v. Cheer Up Sales Co., 8 Cir., 148 F.2d 909), which in some cases may be determined by visual comparison, as where specific differences are so marked that the general appearance could not be confusing, Victor American Fuel Co. v. Huerfano Agency Co., supra, or where it is inconceivable that an ordinary purchaser examining the two labels would be deceived. Schneider Brewing Co. v. Century Distilling Co., supra; McLean v. Fleming, supra; Schlitz Brewing Co. v. Houston Ice & Brewing Co., 250 U.S. 28, 39 S.Ct. 401, 63 L.Ed. 822; Dwinell-Wright Co. v. National Fruit" }, { "docid": "11935758", "title": "", "text": "1431, 1438 (3d Cir.1994). To succeed in a claim for trademark infringement under section 32 of the Lanham Act, the owner of a valid and legally protect-able mark, such as A & H, must show that the defendant has used a confusingly similar mark. Section 32(1) provides in pertinent part: Any person who shall, without the consent of the registrant— (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; ... shall be liable in a civil action by the registrant.... 15 U.S.C. § 1114(1) (emphasis added). The same standard is embodied in section 43(a) of the Lanham Act, which governs unfair competition claims. That section provides, in pertinent part: Any person who, on or in connection with any goods or services, ... uses in commerce any word, term, name, symbol, or device ... or any false designation of origin ... which- — ■ (A) is likely to cause confusion, or to cause mistake, or to deceive as to ... the origin, sponsorship, or approval of [his or her] goods, services, or commercial activities by another person ... shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. § 1125(a)(1) (emphasis added). More than a century ago, and even before the enactment of the Lanham Act, the Supreme Court emphasized the need to avoid consumer confusion as the central concern motivating trademark law when it stated, “All that courts of justice can do ... is to say that no trader can adopt a trademark, so resembling that of another trader, as that ordinary purchasers, buying with ordinary caution, are likely to be misled.” McLean v. Fleming, 96 U.S. 245, 251, 24 L.Ed. 828 (1877); see also Dranoff-Perlstein Assocs. v. Sklar, 967 F.2d 852, 862-63 (3d Cir.1992); Ford Motor Co. v. Summit" }, { "docid": "3983934", "title": "", "text": "ACHESON, Circuit Judge. Courts of equity interfere by injunction to protect trade-marks, upon the ground that the plaintiff has a valuable interest in the good will of his trade, and that a rival merchant or manufacturer shall not be permitted, by the use of the plaintiffs symbol, to palm off his own goods to purchasers as those of the plaintiff. McLean v. Fleming, 96 U. S. 245. To entitle a plaintiff to an injunction, it is not necessary that a specific trademark has been infringed; for, irrespective of a technical question of trade-mark, a defendant has no right, by imitative devices, to deceive purchasers, and thus induce them to believe that they are buying the goods of the plaintiff. Id.; Coats v. Thread Co., 149 U. S. 562. 13 Sup. Ct. 966. As to the degree of similarity necessary as a ground for an injunction, no precise rule, applicable to all cases, can he formulated; but the decisions agree that it is enough if the resemblance is so close that purchasers exercising ordinary caution are likely to he misled. In McLean v. Fleming, supra, the court (cit ing Gorham Co. v. White, 14 Wall. 511) said: “Two trade-marks are substantially the same, in legal contemplation, if the resemblance is such as to deceive an ordinary purchaser, giving such attention to the same as such a purchaser usually gives, and to cause him to purchase the one, supposing it to be the other.” The resemblance need not be such as would deceive persons who should see the two marks placed side by side. Seixo v. Provezende, 1 Ch. App. 192, 195. “Similarity, not identity,” said Judge Bradley in Celluloid Manuf’g Co. v. Cellonite Manuf’g Co., 32 Fed. 94, 97, “is the usual recourse when one party seeks to benefit himself by the good name of another. What similarity is sufficient to effect the object has to be determined in each case by its own circumstances. We may say, generally, that a similarity which would be likely to deceive or mislead an ordinary, unsuspecting customer is obnoxious to the law.” Applying that" }, { "docid": "6289115", "title": "", "text": "imitated. 38 Cyc. 744; Rosenblum v. Rosenblum (D. C. N. Y.) 253 F. 863; Jacoway v. Young (C. C. A. 8) 228 F. 630, 633; Omo Mfg. Co. v. Mystic Rubber Co. (D. C. Mass.) 225 F. 92; Johnson & Johnson v. Bauer & Black (C. C. A. 7) 82 F. 662, 663; De Voe Snuff Co. v. Wolff (C. C. A. 6) 206 F. 420, 423; Thomas G. Plant Co. v. May Co. (C. C. A. 6) 105 F. 375, 379. Dissimilarity in size, form, and color of the label and place where it is applied are not conclusive against infringement. Eagle White Lead Co. v. Pflugh (C. C.) 180 F. 579, 583. The resemblances may so far dominate the differences as to be likely to deceive ordinary purchasers. O. & W. Thum Co. v. Dickinson (C. C. A. 6) 245 F. 609, 613. Where a trade-mark contains a dominating or distinguishing word such as the word “Queen” in the instant ease, and where the purchasing public has come to know and designate the article by such dominating word, the use of such word by another in marking similar goods may constitute infringement, although the latter mark, aside from such dominating word, may be dissimilar. In determining whether an alleged infringing trade-mark is sufficiently similar to be deceptive, and therefore an infringement, ordinary purchasers, buying under the usual conditions prevailing in the trade, and giving such attention as such purchasers usually give in buying that class of goods, are the standard. Whether an imitation which is not an exact copy constitutes an infringement depends upon whether the resemblance is such as to he likely to deceive purchasers of the standard above defined and cause them to believe in purchasing the goods of the defendant that they are the goods of the plaintiff. In other words, if the resemblance is such as would deceive ordinary purchasers of the goods using ordinary caution, the trade-mark is infringed. McLean v. Fleming, supra; Ansehl v. Williams (C. C. A. 8) 267 F. 9, 15; Ward Baking Co. v. Potter-Wrightington, Inc. (C. C. A." }, { "docid": "21338523", "title": "", "text": "action. In an action for infringement of a protected trademark or name the test is that of confusing similarity. Thus under the Lanham Act it is incumbent upon a court to determine whether a defendant’s use of the contested mark is “likely to cause confusion or mistake or to deceive purchasers as to the source of origin of [the plaintiff’s] such goods or services.” § 32(1), 15 U.S.C.A. § 1114 (1). Moreover, “What has been said respecting infringement applies as well to the cause of action for unfair competition, which is but a somewhat broader phase of the same wrong. The gist of this action is the likelihood that the goods of the defendant will be passed off as those of the plaintiff, [citing cases].” Standard Brands v. Smidler, 151 F.2d 34, 37 (2 Cir. 1945). In sum, both actions, i. e., trademark infringement as well as unfair competition, in addition to according legal protection to the property right which has been established in a given name, seek to insure that the public is not misled into purchasing or utilizing goods or services different from those sought by the pull and lure of a subtly devised parody of a familiar name or symbol. To put it more directly, one cannot ride on the coattails of another’s reputation where the indicia of that reputation is legally protected. As was stated in LaTouraine Coffee Co. v. Lorraine Coffee Co., 157 F.2d 115, 118 (2 Cir. 1946), cert. den. 329 U.S. 771, 67 S.Ct. 189, 91 L.Ed. 663: “The Supreme Court has pointed out the law’s recognition of ‘the psychological function of symbols’ in protecting trademarks, adding that once the owner has impregnated ‘the atmosphere of the market with the drawing power of. a congenial symbol’ then the owner can obtain redress ‘if another poaches upon the commercial magnetism of the symbol he has created.’ Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 316 U.S. 203, 205, 62 S.Ct. 1022, 1024, 86 L.Ed. 1381.” Plaintiff’s trademark “Simmons” is registered in the United States Patent Office under Registration No. 137,699 dated" }, { "docid": "23550440", "title": "", "text": "unauthorized uses of a trademark in connection with a commercial transaction in which the trademark is being used to confuse potential consumers. See Prestonettes, Inc. v. Coty, 264 U.S. 359, 368, 44 S.Ct. 350, 68 L.Ed. 731 (1924) (“A trade-mark only gives the right to prohibit the use of it so far as to protect the owner’s good will against the sale of another’s product as his.” [emphasis added] ); see also Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresge Co., 316 U.S. 203, 205, 62 S.Ct. 1022, 86 L.Ed. 1381 (1942) (explaining that the main purpose of the Lanham Act is to prevent the use of identical or similar marks in a way .that confuses the public about the actual source of goods and services). As the Second Circuit held, “[t]he Lan-ham Act seeks to prevent consumer confusion that enables a seller to pass off his goods as the goods of another.... [Trademark infringement protects only against mistaken purchasing decisions and not against confusion generally.” Lang v. Ret. Living Publ’g Co., Inc., 949 F.2d 576, 582-83 (2d Cir.1991) (internal quotation marks and citation omitted) (emphasis added). As a matter of First Amendment law, commercial speech may be regulated in ways that would be impermissible if the same regulation were applied to noncommercial expressions. Florida Bar v. Went For It, Inc., 515 U.S. 618, 623, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995). “The First Amendment may offer little protection for a competitor who labels its commercial good with a confusingly similar mark, but trademark rights do not entitle the owner to quash an unauthorized use of the mark by another who is communicating ideas or expressing points of view.” Mattel, 296 F.3d at 900(internal quotation marks and citations omitted). The district court ruled that Kremer’s use of Bosley’s mark was noncommercial. To reach that conclusion, the court focused on the “use in commerce” language rather than the “use in connection with the sale of goods” clause. This approach is erroneous. “Use in commerce” is simply a jurisdictional predicate to any law passed by Congress under the Commerce Clause. See" }, { "docid": "23691004", "title": "", "text": "symbol of a competitor, fraud will be presumed from the wrongful use. No one has the right to use the technical trade-mark of another in connection with like goods but if he does and persists after being notified to desist, fraud and imposition, which constitute the essence of the injury, will be presumed and relief granted. Lawrence Mfg. Company v. Tennessee Mfg. Company, 138 U.S. 537, 549, 11 S.Ct. 396, 34 L.Ed. 997; McLean v. Fleming, 96 U.S. 245, 252, 24 L.Ed. 828; H. E. Winterton Gum Co. v. Autosales Gum & Chocolate Co., 6 Cir., 211 F. 612. Appellant having acquired the exclusive right to the use upon its shoes of the trade-mark heretofore described, the remaining question is: Would the coloring and markings of appellee’s lifts and heels, excluded' from the injunction, likely mislead the ordinary or usual buyer into believing that he was purchasing goods manufactured by appellant. All of the heels manufactured by appellant had a red circular figure or red ball on the tread face in approximately the center thereof with the words “Ball Band” in raised lettering in different configurations and at the bottom thereof the lettering “Mishawaka, Indiana.” All of appellee’s heels, with the exception of two types, used the circular ball at first in red then in orange, green and beige but embossed on some of them were a Crusader’s head, on some an Indian head, and on others an eagle. Appellant’s heels had no arbitrary figure on them, but a circular contrasting, reddish section with accompanying lettering. Color, except in connection with some definite arbitrary design which serves to distinguish the article as made or sold by a particular person, is not the subject of a trade-mark, but the owner of a valid trade-mark, otherwise distinctive, may be protected against appropriation by a rival through mere change in color. Samson Cordage Works v. Puritan Cordage Mills, 6 Cir., 211 F. 603, L.R.A.1915F, 1107. In considering the likelihood of confusion of goods where a trade-mark is a figure or design or lettering, the owner’s right may well cover that figure or design" } ]

[ { "docid": "22663757", "title": "", "text": "As technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome. In response to these changes,, the requirements for personal jurisdiction over nonresidents have evolved from the rigid rule of Pennoyer v. Neff, 95 U. S. 714, to the flexible standard of International Shoe Co. v. Washington, 326 U. S. 310. But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. See Vanderbilt v. Vanderbilt, 354 U. S. 416, 418. Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They arq a consequence of territorial limitations on the power of the respective States. However minimal the burden of defendin/g in a foreign tribunal, a defendant may not be called upon to do so unless he has had the “minimal contacts” with that State that are a prerequisite to its exercise of power over him. See International Shoe Co. v. Washington, 326 U. S. 310, 319. We fail to find such contacts in the circumstances of this case. The defendant trust company has no office in Florida, and transacts no business there. None of the trust assets has ever been held or administered in Florida, and the record discloses no solicitation of business in that State either in person or by mail. Cf. International Shoe Co. v. Washington, 326 U. S. 310; McGee v. International Life Ins. Co., 355 U. S. 220; Travelers Health Assn. v. Virginia, 339 U. S. 643. The cause of action in this case is not one that arises out of an act done or transaction consummated in the forum State. In that respect, it differs from McGee v. International Life Ins. Co., 355 U. S. 220, and the cases there cited. In McGee, the nonresident defendant solicited a reinsurance agreement with a resident of California. The offer was accepted in that State, and the" } ]

[ { "docid": "38732", "title": "", "text": "the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case.” . Plaintiffs rely chiefly upon Gray Co. v. Ward, Tex.Civ.App.1940, 145 S.W.2d 650, and a federal case which followed Gray, Acme Engineers v. Foster Engineering Co., 5 Cir., 1958, 254 F.2d 259. Both cases are inapposite for two reasons: (1) defendants in each case had maintained through Texas agents a continuous solicitation of sales in Texas; and (2) actions arose out of those very solicitation acts constituting the business done in Texas. Here, CSV maintained no such long-time solicitation in Texas, and the tortious conduct complained of did not arise out of CSV’s Texas contacts. . For a canvassing of Supreme Court authorities in this area see my opinion in Lone Star Motor Import, Inc. v. Citroen Cars Corp., D.C.Tex.1960, 185 F.Supp. 48, reversed on other grounds, 5 Cir., 1961, 288 F.2d 69. . Mr. Chief Justice Warren stated in Hanson v. Denckla, supra, 357 U.S. at page 251, 78 S.Ct. at page 1238: “ * * * The requirements for personal jurisdiction over nonresidents have evolved from the rigid rule of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, to the flexible standard of International Shoe Co. v. State of Washington * * * But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. * * * Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him.” . Plaintiffs rely solely upon" }, { "docid": "22939618", "title": "", "text": "at 159. Contrastingly, the Court mentioned “instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against [a corporate defendant] on causes of action arising from dealings entirely distinct from those activities.” Id. at 318, 66 S.Ct. at 159. Finally, for perhaps the first time, the Court recognized reciprocity as a significant jurisdictional consideration, reasoning that a party who enjoys the benefits of conducting business in a particular forum should be willing to bear the correlative burden of submitting to the forum’s courts. Id. at 319, 66 S.Ct. at 159. State sovereignty, the bellwether of the Pennoyer line of eases, was downplayed in International Shoe. Yet in succeeding years, the Court tied together the flexible standard of International Shoe and the state sovereignty prong of Pennoyer. For instance, in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), the Court reminded its audience that restrictions on personal jurisdiction are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the “minimal contacts” with that State that are a prerequisite to its exercise of power over him. Id. at 251, 78 S.Ct. at 1238. The Hanson Court reiterated the importance of reciprocity, id. at 252, 78 S.Ct. at 1239, and also introduced the idea of “purposeful availment” into the jurisprudence of personal jurisdiction: The application of [the minimum contacts] rule will vary with the quality and nature of the defendant’s activity, but it is essential in each ease that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. Id. at 253, 78 S.Ct. at 1240. Cf. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 438, 72 S.Ct. 413, 414, 96 L.Ed. 485 (1952)" }, { "docid": "22842533", "title": "", "text": "U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), the Court explored the problem of reconciling technological advances with the limits of personal jurisdiction and stated: As technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome. In response to these changes, the requirements for personal jurisdiction over nonresidents have evolved from the rigid rule of Pennoyer v. Neff to the flexible standard of International Shoe Co. v. State of Washington. But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the “minimal contacts” with that State that are a prerequisite to its exercise of power over him. Id. at 250-51, 78 S.Ct. 1228 (internal citations omitted); see also McGee v. Int’l Life Ins. Co., 355 U.S. 220, 222, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) (noting that the trend toward expanding the permissible scope of personal jurisdiction is, in part, “attributable to the fundamental transformation of our national economy over the years”). The Court has thus mandated that limits on the states’ power to exercise personal jurisdiction over nonresidents must be maintained, despite the growing ease with which business is conducted across state lines. Determining the extent of a State’s judicial power over persons outside of its borders under the International Shoe standard can be undertaken through two different approaches — by finding specific jurisdiction based on conduct connected to the suit or by finding general jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Christian Science Bd., 259" }, { "docid": "23296550", "title": "", "text": "1103 (9th Cir.), cert. denied, 419 U.S. 1023, 95 S.Ct. 499, 42 L.Ed.2d 297 (1974), this Court described the reach of this statute: “The jurisdiction of the California courts is therefore coextensive with the outer limits of due process under the state and federal constitutions, as those limits have been defined by the United States Supreme Court.” (Footnote omitted.) The seminal case for the current law on personal jurisdiction is International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), in which the Supreme Court held that: “[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” This restriction on the states is not merely a protection against inconvenient litigation; it is “a consequence of territorial limitations on the power of the respective States.” Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283 (1958). “However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him.” Id. Hanson also made clear that only the defendant’s purposeful activities in the forum state, and not the plaintiff’s actions, can justify the exercise of jurisdiction. “The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id. at 253, 78 S.Ct. at 1239-1240. The International Shoe standard was recently reaffirmed in World-Wide Volkswagen" }, { "docid": "23438580", "title": "", "text": "Omaha, Nebraska, office and send them for execution to the respective appellee corporation, which would then return them to appellant in Omaha. . In the course of his opinion, Judge Neville discussed the minimal nature of a nonresident purchaser’s contacts with a forum state: In sum, what plaintiff asks is that this court hold that any purchaser from any Minnesota based corporation where goods have been manufactured in Minnesota may be sued in the Minnesota courts within due process limitations, and thus in diversity actions in this court, irrespective of whether that defendant has any connection with the State of Minnesota other than that the purchase price is payable in Minnesota and that by the submission of its purchase order the nonresident has engendered some activity within the State. It would seem to this court that to do so would violate traditional standards or notions of fair play and substantial justice and would go beyond the parameters permitted by the Fourteenth Amendment due process clause. McQuay, Inc. v. Samuel Schlosberg, Inc., 321 F.Supp. 902, 907 (D.Minn.1971). . Most of the sales accounting for the large dollar volume involved transactions intentionally arranged and consummated apart from Nebraska, with only the invoicing coming from Omaha. . See Whittaker Corporation v. United Aircraft Corporation, 482 F.2d 1079, 1084-85 (1st Cir. 1973) (Court affirmed dismissal for lack of personal jurisdiction when defendant’s only contact with the forum state was as a passive purchaser exercising no supervision of manufacture within the forum). . In Hanson v. Denckla, supra, 357 U.S. at 251, 78 S.Ct. at 1238, the Supreme Court said: Those restrictions [on personal jurisdiction] are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the “minimal contacts” with that State that are a prerequisite to its exercise of power over him. See, International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154," }, { "docid": "22842532", "title": "", "text": "maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int’l Shoe, 326 U.S. at 316, 66 S.Ct. 154 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). With respect to corporations, the Court has recognized that “unlike an individual, its ‘presence’ without, as well as within, the state of its origin can be manifested only by activities carried on in its behalf by those who are authorized to act for it.” Id. Thus, “the terms ‘present’ or ‘presence’ are used merely to symbolize those activities of the corporation’s agent within the state which courts will deem to be sufficient to satisfy the demands of due process.” Id. at 316-17, 66 S.Ct. 154. Although the courts have recognized that the standards used to determine the proper exercise of personal jurisdiction may evolve as technological progress occurs, it nonetheless has remained clear that technology cannot eviscerate the constitutional limits on a State’s power to exercise jurisdiction over a defendant. In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), the Court explored the problem of reconciling technological advances with the limits of personal jurisdiction and stated: As technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome. In response to these changes, the requirements for personal jurisdiction over nonresidents have evolved from the rigid rule of Pennoyer v. Neff to the flexible standard of International Shoe Co. v. State of Washington. But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do" }, { "docid": "22939619", "title": "", "text": "distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the “minimal contacts” with that State that are a prerequisite to its exercise of power over him. Id. at 251, 78 S.Ct. at 1238. The Hanson Court reiterated the importance of reciprocity, id. at 252, 78 S.Ct. at 1239, and also introduced the idea of “purposeful availment” into the jurisprudence of personal jurisdiction: The application of [the minimum contacts] rule will vary with the quality and nature of the defendant’s activity, but it is essential in each ease that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. Id. at 253, 78 S.Ct. at 1240. Cf. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 438, 72 S.Ct. 413, 414, 96 L.Ed. 485 (1952) (where foreign corporation carries on “a continuous and systematic, but limited, part of its general business” within the forum, general jurisdiction attaches). In ensuing decisions, the Supreme Court expounded upon the theme of fairness and substantial justice, and the juxtaposition of that theme with state sovereignty. See, e.g., Shaffer v. Heitner, 433 U.S. 186, 203-04, 97 S.Ct. 2569, 2579-80, 53 L.Ed.2d 683 (1977). It became crystal clear that the tri-corn ered “relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States,” now occupied center stage and was “the central concern of the inquiry into personal jurisdiction.” Id. at 204, 97 S.Ct. at 2580; see also Rush v. Savchuk, 444 U.S. 320, 327, 100 S.Ct. 571, 576, 62 L.Ed.2d 516 (1980). The emergent emphasis on the triangular nexuses led to the incidence of “purposeful availment” as a frequently employed unit of measurement. See, e.g., Kulko v. Superior Court, 436 U.S. 84, 94, 98 S.Ct. 1690, 1698, 56 L.Ed,2d 132 (1978). Regardless, sovereignty — though no longer the cynosure" }, { "docid": "886407", "title": "", "text": "traditional indi-cia of corporate presence in New York. It has no New York office, address, telephone listing, bank account, tangible or intangible property. The standards for obtaining personal jurisdiction over non-residents have moved from the rigid rule of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877) to the more flexible standard of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). These developments, however, have not heralded the ultimate demise of all restrictions on the personal jurisdiction of the courts. As Chief Justice Warren stated in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958): “Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him. * * *” 357 U.S. at 250-251, 78 S.Ct. at 1238. The Court also indicated that one test to be applied was whether there was “some act by which the defendant purposefully avail [ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefit and protections of its laws.” 357 U.S. at 253, 78 S.Ct. at 1240. In determining whether RF&P has the requisite “minimal contact” with New York, the majority opinion and the district court indicated that the classic indicia of corporate presence, must yield to the realities of significant and purposeful economic presence in the State. Even accepting this formulation, I am unable to discover the “significant and purposeful” economic presence which the district court and the majority opinion find to exist here. In Blount v. Peerless Chemicals Inc., 316 F.2d 696 (2 Cir.), cert. denied, sub nom. Colbert v. Peerless Chemicals Inc., 375 U.S. 831, 84 S.Ct. 76, 11 L.Ed.2d 62 (1963) we formulated a test for determining the propriety of jurisdiction, concluding that “[t]he two" }, { "docid": "510179", "title": "", "text": "361 F.2d 43. The most recent decision of the Supreme Court, relied upon by us in Reeder, emphasizes the continuing validity of the requirements of due process. In Hanson v. Denckla, 1958, 357 U.S. 235, 251, 253, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283, the Chief Justice said: “But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. See Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, [77 S.Ct. 1360, 1 L.Ed.2d 1456]. Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him. See International Shoe Co. v. [State of] Washington, 326 U.S. 310, 319 [66 S.Ct. 154, 90 L.Ed. 95] * * * “The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. International Shoe Co. v. [State of] Washington, 326 U.S. 310, 319 [66 S.Ct. 154, 90 L.Ed. 95].” We now return to the facts of this case. We consider first the theory that Taylor committed a tortious act in Oregon. If what Taylor is alleged to have done is a tort at all, a question that we need not now decide, we find it difficult to say that what plaintiff says she did was a “tortious act in” Oregon. The trial court thought it was, and, for the purpose of this case, we accept, albeit somewhat dubitante, see" }, { "docid": "23438581", "title": "", "text": "(D.Minn.1971). . Most of the sales accounting for the large dollar volume involved transactions intentionally arranged and consummated apart from Nebraska, with only the invoicing coming from Omaha. . See Whittaker Corporation v. United Aircraft Corporation, 482 F.2d 1079, 1084-85 (1st Cir. 1973) (Court affirmed dismissal for lack of personal jurisdiction when defendant’s only contact with the forum state was as a passive purchaser exercising no supervision of manufacture within the forum). . In Hanson v. Denckla, supra, 357 U.S. at 251, 78 S.Ct. at 1238, the Supreme Court said: Those restrictions [on personal jurisdiction] are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the “minimal contacts” with that State that are a prerequisite to its exercise of power over him. See, International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95." }, { "docid": "356928", "title": "", "text": "lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.” (355 U.S. at 222-223, 78 S.Ct. at 201, 2 L.Ed.2d 223). This “trend” was commented on by the Court in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958): “But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. * * * Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him.” (357 U.S. at 251, 78 S.Ct. at 1238, 2 L. Ed.2d 1283). In further clarification of International Shoe the Hanson v. Denckla Court pointed out that “it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” (357 U.S. at 253, 78 S.Ct. at 1240, 2 L.Ed.2d 1283). The test, then, is a very practical one aimed at determining when a foreign corporation has brought itself into contact with a State so that the geographic limitations of the State pose no constitutional barrier to State jurisdiction over the foreign corporation. The nature of the test makes it an appropriate one for case-by-case application, and while general statements are hazardous they are sometimes necessary. Since my view of the limitations on State jurisdiction imposed by the due process clause differs from others expressed by this Court, I think a brief indication of my position will help to clarify whatever differences exist in our Court and will facilitate their eventual resolution. Whether or not it is" }, { "docid": "18459207", "title": "", "text": "holding that foreign corporations were sufficiently “present” in the state to support assertion of jurisdiction. Nor are these minimal contacts of the type that become “constitutionally significant” by virtue of having a causal connection to plaintiff’s cause of action. Thompson v. Ecological Science Corporation, supra, 421 F.2d at 470. None of defendant’s contacts with the state of Washington can be characterized as “act(s) by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws”, Hanson v. Denckla, supra, 357 U.S. at 253, 78 S.Ct. at 1240, for they are all collateral to defendant’s primary business activity which is conducted wholly outside Washington. There is no doubt that courts have effected a prodigious expansion of state in personam jurisdiction beyond that defined nearly a century ago in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), not only in those cases where a defendant’s contacts with the forum are the source of injuries, McGee v. International Life Insurance Company, supra, but also where plaintiff’s cause of action is unrelated to such contacts and defendant is present and doing business to some extent within the forum state. Perkins v. Benguet Consolidated Mining Company, supra. However, the Court must also be cognizant of the Supreme Court’s admonition in Hanson v. Denckla, supra, 357 U.S. at 251, 78 S.Ct. at 1238: But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts, (citation omitted) Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defendant in a foreign tribunal, a defendant may not be called upon to do so unless he has had the “minimal contacts” with that State that are a prerequisite to its exercise of power over him. (citation omitted) While defendant’s involvement in the Inter-company Pool makes this case a close one, the Court cannot conclude that the mere" }, { "docid": "12314084", "title": "", "text": "warned that cases like McGee should not be regarded as enabling a state to exercise in personam jurisdiction on any basis at all. It admonished that state lines must still be watched for jurisdictional purposes. Although the Supreme Court in Hanson adhered to the flexible standard of International Shoe, it said that: “[lit is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. * * * Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him.” 357 U.S. at 251, 78 S.Ct. at 1238. In the instant case, the moving party has demonstrated that the defendant had “contact” with the State of Rhode Island. Although its contacts were min imal, this court believes that they do satisfy the constitutional requirements of International Shoe, supra, and the “long arm” statute of the State of Rhode Island, which was enacted for the purpose of permitting the State of Rhode Island to exercise jurisdiction over foreign corporations up to the constitutional limitation. The defendant’s contacts with the State of Rhode Island were such that the maintenance of a suit there by these plaintiffs against the defendant would not offend traditional notions of fair play and substantial justice. Nor can it be said that the limits of Hanson, supra, would be exceeded were a state court of the State of Rhode Island to exercise jurisdiction over this defendant under its long arm statute, for this defendant did “purposefully [avail] itself of the privilege of conducting activities within the forum State * * * ” by soliciting business there and shipping goods sold into that state. Independent research has failed to reveal any case in Rhode Island with facts similar to those of the" }, { "docid": "9801631", "title": "", "text": "on constitutional grounds, to permit Oklahoma to assert jurisdiction over a New York automobile dealer and distributor. “Thus, the Due Process Clause ‘does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.’ International Shoe Co. v. Washington, [326 U.S. 310, 319, 66 S.Ct. 154, 159, 90 L.Ed. 95 (1945)] supra. Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment.” Id. 100 S.Ct. at 565. The court quoted from Hanson v. Denkla, 357 U.S. 235, 250-51, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283 (1958) as follows: As technological progress has increased the flow of commerce between the States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome. In response to these changes, the requirements for personal jurisdiction over nonresidents have evolved from the rigid rule of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, to the flexible standard of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. [Citation omitted.] Those restrictions are more than guarantees of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. In the latter case the court held “it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State," }, { "docid": "12314083", "title": "", "text": "The minimum contact theory stated in Int’l Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945): “[Rjequires only that in order to subject a defendant to a judgment in per-sonam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” 326 U.S. at 316, 66 S.Ct. at 158. The criteria by which the forum state may judge the sufficiency of a foreign defendant’s activities in order to exercise personal jurisdiction is not “simply mechanical or quantitative.” The activities of such a foreign corporation are measured by their “quality and nature.” 326 U.S. at 319, 66 S.Ct. at 160. The court is aware of McGee v. Int’l Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) as well as the more recent case of Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Hanson warned that cases like McGee should not be regarded as enabling a state to exercise in personam jurisdiction on any basis at all. It admonished that state lines must still be watched for jurisdictional purposes. Although the Supreme Court in Hanson adhered to the flexible standard of International Shoe, it said that: “[lit is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. * * * Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him.” 357 U.S. at 251, 78 S.Ct. at 1238. In the instant case, the moving party has demonstrated that the defendant had “contact” with the State of Rhode Island." }, { "docid": "22939617", "title": "", "text": "does not stem from any activities conducted, or torts committed, by appellant within Rhode Island. Because plaintiffs claims do not arise out of, and are not directly related to, defendant’s contacts with the forum state, specific jurisdiction is lacking. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 1872 n. 8, 80 L.Ed.2d 404 (1984); see also Donatelli, 708 F.Supp. at 34. In order to maintain the action in Rhode Island, therefore, plaintiff must demonstrate the existence of general jurisdiction anent the NHL. And, “[although minimum contacts suffice in and of themselves for specific jurisdiction under International Shoe, the standard for general jurisdiction is considerably more stringent.” Glater v. Eli Lilly & Co., 744 F.2d 213, 216 (1st Cir.1984) (footnote omitted). Explicating the constitutional perimeters of general jurisdiction, International Shoe warned that a corporation’s “single or isolated items of activities in a state ... are not enough to subject it to suit on causes of action unconnected with the activities there.” 326 U.S. at 317, 66 S.Ct. at 159. Contrastingly, the Court mentioned “instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against [a corporate defendant] on causes of action arising from dealings entirely distinct from those activities.” Id. at 318, 66 S.Ct. at 159. Finally, for perhaps the first time, the Court recognized reciprocity as a significant jurisdictional consideration, reasoning that a party who enjoys the benefits of conducting business in a particular forum should be willing to bear the correlative burden of submitting to the forum’s courts. Id. at 319, 66 S.Ct. at 159. State sovereignty, the bellwether of the Pennoyer line of eases, was downplayed in International Shoe. Yet in succeeding years, the Court tied together the flexible standard of International Shoe and the state sovereignty prong of Pennoyer. For instance, in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), the Court reminded its audience that restrictions on personal jurisdiction are more than a guarantee of immunity from inconvenient or" }, { "docid": "18459208", "title": "", "text": "but also where plaintiff’s cause of action is unrelated to such contacts and defendant is present and doing business to some extent within the forum state. Perkins v. Benguet Consolidated Mining Company, supra. However, the Court must also be cognizant of the Supreme Court’s admonition in Hanson v. Denckla, supra, 357 U.S. at 251, 78 S.Ct. at 1238: But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts, (citation omitted) Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defendant in a foreign tribunal, a defendant may not be called upon to do so unless he has had the “minimal contacts” with that State that are a prerequisite to its exercise of power over him. (citation omitted) While defendant’s involvement in the Inter-company Pool makes this case a close one, the Court cannot conclude that the mere use of information gathered within the state, even when coupled with defendant’s Washington purchases, is a sufficient con nection with Washington to justify subjecting defendant to any and all claims that could be asserted against it, no matter what their nature or source. To do so would impinge upon those elusive notions “of fair play and substantial justice” that are the essence of due process. International Shoe Company v. Washington, supra, 326 U.S. at 320, 66 S.Ct. at 160; Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940). Therefore, the Court finds that defendant’s contacts with Washington are not sufficiently substantial and of such nature as to permit [Washington] to entertain a cause of action against a foreign corporation, where the cause of action arose from activities entirely distinct from its activities in [Washington]. Perkins v. Benguet Consolidated Mining Company, supra, 342 U.S. at 447, 72 S.Ct. at 419, citing International Shoe Company v. Washington, supra. However, the Court’s lack of in personam jurisdiction over defendant does not necessitate dismissal" }, { "docid": "11625566", "title": "", "text": "Rhode Island General Laws, 1956, Section 9-5-33, as amended. . “Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does. not contemjjlate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.” International Shoe Co. v. State of Washington et al., supra, 326 U.S. at page 319, 66 S.Ct. at page 160. . “ * * * it has been generally recognized that the casual presence of the corporate agent or even his conduct of single or isolated items of activities in a state in the corporation’s behalf are not enough to subject it to suit on causes of action unconnected with the activities there.” International Shoe Co. v. State of Washington et al., supra, at 317, 66 S.Ct. at 159. (emphasis added) . “But it is a mistake to assume that this trend (established by International Shoe) heralds the eventual demise of all restrictions on the personal jurisdiction of state courts (citations omitted). These restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him.” Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283. . Insull v. New York World-Telegram Corporation, 7 Cir., 273 F.2d 166; Schmidt v. Esquire, Inc., 7 Cir., 210 P. 2d 908 cert. denied 348 U.S. 819, 75 S. Ct. 31, 99 L.Ed. 646; Gayle v. Magazine Management Company (D.C.) 153 F. Supp. 861. . Schmidt v. Esquire, Inc., supra. . Rule 4(d) F.R.Civ.P. subsection (1). . Rule 4(d) F.R.Civ.P. subsection (3). . Aro Manufacturing" }, { "docid": "6326348", "title": "", "text": "Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 (1950). The court must apply these factors to the particular circumstances of the case before it, see MacInnes v. Fontainebleau Hotel Corp., 257 F.2d 832, 833 (2d Cir. 1958), in order to determine whether it is “reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought” in the forum. International Shoe Co. v. Washington, 326 U.S. at 317, 66 S.Ct. at 158. Another factor — although in large measure a reformulation of the two basic ones just set out — is the so-called “balance of conveniences” of the parties in conducting the lawsuit in a given forum. Ibid. See Hutchinson v. Chase & Gilbert, 45 F.2d 139, 141 (2d Cir. 1930) (L. Hand, J.). But we have been recently reminded by the Supreme Court that jurisdiction cannot be conferred solely because of the relative convenience of the parties; restrictions upon personal jurisdiction “are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him.” Hanson v. Denckla, 357 U.S. at 251, 78 S.Ct. at 1238. II. With these principles of law in mind, we turn to the facts of this particular case. These facts have already been set out with meticulous care in the opinion of Judge Dooling, and need not, therefore, be repeated here in detail. His findings are clearly supported by the record. In determining whether Peerless (P.R.) had business contacts with New York of such a nature and extent as to warrant the conclusion that it was “present” or “doing business” here, Judge Dooling evaluated the relationship between the Puerto Rican corporation and its New York parent, Peerless, as well as between that corporation and its president, who resides in" }, { "docid": "9399618", "title": "", "text": "find to be the case here. In summary, Klaff insists that all of its business is transacted solely in Maryland; that it employs no salesmen or representatives anywhere; that it functions by telephone solicitation of customers for either the sale or purchase of metals, followed by mail regarding specifics of a particular transaction and finalized by shipments in the use of sales, and receipts in the case of purchases, “F.O.B. Baltimore.” Klaff insists that because its customers are spread throughout the nation, this does not necessarily subject it to a “national jurisdiction” as contended by Engelhard. We quite agree. The expansion of in personam jurisdiction throughout the states does not suggest a national jurisdiction in diversity cases. The law is definitely to the contrary. As stated in the leading case of Hanson v. Denckla, 357 U.S. 235, at page 251, 78 S.Ct. 1228, at page 1238, 2 L.Ed.2d 1283 (1958): “ * * * [I]t is a mistake to assume that this trend [retreat from the rigid rule of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, to, the flexible standard of International Shoe Co. v. Washington] heralds the eventual demise of all restrictions on the personal jurisdiction of state courts [or federal courts in diversity cases]. See Vanderbilt v. Vanderbilt, 354 U.S. 416, 418 [77 S.Ct. 1360, 1362, 1 L.Ed.2d 1456], Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him.” (Brackets supplied) Due process of law requires that the foreign corporation have sufficient substantial contacts with the forum state exercising jurisdiction, so as not to offend “traditional notions of fair play and substantial justice.” International Shoe Co., supra; Dragor Shipping Corp. v. Union Tank Car Co., 361 F.2d 43 (9 Cir. 1966), cert. den. 385 U.S. 831, 87" } ]

[ { "docid": "16945660", "title": "", "text": "distinction between legal and equitable forms of action. Rule 2, Federal Rules of Civil Procedure. However, the distinction which has been abolished is a procedural and not a substantive one. 1 Moore’s Federal Practice, p. 144; 17 Hughes, Federal Practice, § 18563; Bellavance v. Plastic-Craft Novelty Co., D.C., 30 F.Supp. 37, 39; Grauman v. City Company of New York, D.C., 31 F.Supp. 172, 173, 174. Where 'the subject matter of a civil action is such as would be cognizable exclusively in equity under the old practice, and therefore governed by equitable principles, such principles would be equally applicable to such an action today. The new rules have not abrogated equitable doctrine, and the instant case seems to present a clear situation in which the plaintiff should be denied equitable relief because she has not come into court with clean hands. Regardless of any legal claim the plaintiff might have had against the trustees individually, had the supposed acceptance by them of Monks’ order not been a forgery, the nature of the relief sought by the complaint as well as the remedies available to the plaintiff against the trustees or against Monks’ interests in their hands as his creditor or assignee show that the cause of action against them, as it now stands, is solely cognizable in equity. Clews v. Jamieson, 182 U.S. 461, 21 S.Ct. 845, 45 L.Ed. 1183, 1192; Brown v. Fletcher, 235 U.S. 589, 35 S.Ct. 154, 59 L.Ed. 374, 378; and compare Security Bank of New York v. Callahan, 220 Mass. 84, 107 N.E. 385; Smith’s Lessee v. McCann, 24 How. 398, 16 L.Ed. 714, 717. Hence, in considering her claim against the defendant' trustees, this court would act in the capacity of a court of equity; and, as was said in Deweese v. Reinhard, 165 U.S. 386, 17 S.Ct. 340, 341, 41 L.Ed. 757, 758: “A court of equity acts only when and as conscience commands, and, if the conduct of the plaintiff be offensive to the dictates of natural justice, then, whatever may be the rights he possesses, and whatever use he may make of" } ]

[ { "docid": "16947093", "title": "", "text": "whom Congress had not infrequently assumed control in the past.” Such a construction, he says, would not only “ ‘infer Congressional idiosyncracy,’ but ‘impute to Congress a desire for incoherence * * * and for drastic legal differentiation where policy justifies none,’ Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 393, 394 [59 S.Ct. 516, 83 L.Ed. 784] (1939), a result which sound principles of statutory construction preclude.” It would seem a strained interpretation of the Act, and in conflict with the doctrine that remedial legislation should be liberally construed, to hold that an employee, who would be covered by the Act if the person receiving the benefits of his services were engaged in production for commerce, would not be entitled to the advantages of the Act if his employer was actually engaged in commerce. It was said in Divine v. Levy, D.C., 39 F.Supp. 44, 47, “ * * * In the interpretation of whether or not a factual situation brings about interstate commerce under this Act we should be liberal rather than strict. “The purpose of the Adt would be frustrated if the courts were to limit its beneficence to labor by technical interpretations.” The court will therefore be guided by those cases which liberally apply the Federal Employers Liability test. The courts have not been reluctant to hold that employees are engaged in commerce. It was decided that one employed by a railroad to repair and maintain railroad tracks and roadbed was entitled to the benefits of the Act. Morgan v. Atlantic Coast Line R. Co., D.C., 32 F.Supp. 617. In Muldowney v. Seaberg Elevator Co., D.C., 39 F.Supp. 275, it was held that the plaintiff, who was employed as a general handyman and errand boy in defendant’s maintenance and repair department, was engaged in work in interstate commerce when he painted parts of the plant, assisted in loading and unloading trucks, and supervised and cleaned a boiler. In Spinner v. Waterways Fuel & Dock Co., Ohio App., 41 N.E.2d 144, a watchman employed by a fuel and dock company to guard a digger boat" }, { "docid": "16889819", "title": "", "text": "in equity. . Rule 2. There shall be one form of action to be known, as civil action. - . - Rule 38. “The right of.triál by jury as declared by the Seventh Amendment to the Constitution * * * shall be preserved to the parties inviolate.” Rule 39(a). “When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon docket as a jury action. The trial of all issues so demanded stall be by jury, unless * * * the couVb upon motion or of its own initiative finds that a right of trial by jury of some cr all of those issues does not exist under the Constitution * J|C % ** Neither the Rules of Civil Procedure nor the Act, 28 U.S.C. § 723c, 28 U.S.C.A. § 723c, under the authority of which were prescribed abolished the fundamental and substantive distinction between actions at law and suits in equity. 'pjjg distinction, except in matters of procedure, is cautiously maintained. Rights and remedies peculiarly legal retain their inherent characteristics, and rights and remedies peculiarly equitable likewise re-j-a¡n their inherent characteristics. Legal and equitable rights may still be pursued and the respective remedies administered as heretofore, not only in the same forum, but in the same proceeding. Williams v. Collier et al., D.C., 32 F.Supp. 321; Grauman et al. v. City Company of New York, Inc., et al., D.C., 31 F.Supp. 172; Bellavance v. Plastic-Craft Novelty Co. et al., D.C., 30 F.Supp. 37; Fraser v. Geist et al., D.C., 1 F.R.D. 267; Trial by Jury and the New Federal Rules of Procedure, 45 Yale L.J., 1022. See Liberty Oil Company v. Condon National Bank et al., 260 U.S. 235, 242, 43 S.Ct. 118, 67 L.Ed. 232. Causes of action cognizable and remediable in a court of law are triable as jury cases; causes of action cognizable and remediable in a court of equity are triable as nonjury cases. The Rules of Civil Procedure established a uniform system of procedure for law and equity and eliminated only the formal distinction. The “civil action" }, { "docid": "9874558", "title": "", "text": "Plaintiff further states that the purpose of the interrogatories is two-fold: to prepare for trial of the counter-claims and to put plaintiffs in a position for intelligent action on any pre-trial conference that may be held. Defendant objects upon the grounds that the numerous (54) interrogatories' call for a great mass of detail and such is information which could be obtained by the taking of oral depositions and that it would be a vexatious and harassing burden upon defendant to answer. In Coca-Cola Co. v. Dixi-Cola Laboratories, D. C., 30 F.Supp. 275, 279, certiorari denied 314 U.S. 629, 62 S.Ct. 60, 86 L.Ed. 505, the court quoted with approval from 42 Yale Law Journal 875, 876, that “It is only when the facts sought are few, formal1 and isolated, that this method (interrogatories) can be satisfactorily employed. * * *■ But if discovery is to involve a thorough inquiry into the vital and highly controversial phases of the case, resort must be had to an oral examination.” The court went on to hold that where the facts sought' are very numerous, they tend to' become unduly burdensome to the adverse party and difficult for the court to administer, and,, therefore, depositions rather than interrogatories should be employed. Vider Brightwater Paper Co. v. Monadnock Paper Mills, D.C., 2 F.R.D. 547; Checker Cab Mfg. Co. v. Checker Taxi Co., D.C., 2 F.R.D. 547. Contra to this is J. Schoeneman, Inc., v. Brauer, D.C., 1 F.R.D. 292, which holds that the number of interrogatories is immaterial as long as the inquiries are pertinent. One of the purposes of the new Federal Rules of Civil Procedure was to. adopt the best of the modern English and state practices for discovery. Several cases hold that interrogatories, may be as broad in scope as an examination by deposition under Rule 26. Graver Tank & Mfg. Corporation v. James B. Berry Sons Co., D.C., 1 F.R.D. 163. Fleming v. Southern Kraft Corporation, D.C., 37 F.Supp. 232, 235; Munzer v. Swedish American Line, D.C., 35 F.Supp. 493; Nichols v. Sanborn Co., D.C., 24 F.Supp. 908; Kingsway Press v." }, { "docid": "6202826", "title": "", "text": "Judgment Act is neither legal nor equitable, however its utilization does not alter or invade the right of trial by jury as at common law. It affords a complete and expeditious remedy whereby a party to a justiciable controversy may affirmatively assert any substantive right otherwise available to it in a civil action. Under the Federal rules of civil procedure, which are made expressly applicable rule, 57, F.R.C.P., there is but one form of civil action, in which the right of a trial by jury is recognized and adequately preserved. Ætna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; 28 U.S.C.A. § 400(3), rules 38 and 39 R.F.C.P.; Ætna Casualty & Surety Co. v. Quarles et al., 4 Cir., 92 F.2d 321; Pacific Indemnity Co. v. McDonald, 9 Cir., 107 F.2d 446, 131 A.L.R. 208; (American) Lumbermen’s Mutual Casualty Co. of Illinois v. Timms & Howard, Inc., 2 Cir., 108 F.2d 497; United States Fidelity & Guaranty Co. v. Nauer, D.C., 1 F.R.D. 547. Whether the issues are tendered by suit under the Declaratory Judgment Act, or as a defense to an action to recover on the policies, the rights of the parties are the same and the rule with respect to trial by jury is the same. The basic issue tendered by the pleadings and the proof is the liability of the insurer on the contracts of insurance because of the alleged fraudulent conduct and false swearing of the insured. The case is bottomed on fraud which, if proved, would vitiate the contract between the parties. Singleton et al v. Hartford Fire Ins. Co., 105 Cal.App. 320, 287 P. 529; Orenstein et al v. Star Ins. Co. of America, 4 Cir., 10 F.2d 754; 33 Corpus Juris, p. 19, § 667. If the issues tendered are purely equitable, the court has the indisputable right under the civil rules of procedure to call a jury in an advisory capacity of its own initiative and to submit to them such issues of fact as he sees fit, and to accept or disregard" }, { "docid": "4942597", "title": "", "text": "place an unnecessary burden on the litigants, their counsel and the Court. A sensible approach to a judicial determination of all the issues would be to have them all tried by a jury. Gunther v. Gossard, D.C., 27 F.Supp. 995 and Spiro v. Pennsylvania R. Co., D.C., 3 F.R.D. 351, are two cases in which I applied the same reasoning in directing a jury trial of all the issues. Although copyright infringement suits, where the infringed and the infringing works are books or other long literary compositions, should preferably be tried before a Court without a jury, the issue of infringement in the present case is comparatively simple and should not take long to try. It could readily be explained to a jury and intelligently determined by them. It is less involved than some of the legal issues presented in other claims of the amended complaint. The issue of damages for infringement has been made a jury issue in a number of copyright cases, Atlantic Monthly Co. v. Post Pub. Co., D.C., 27 F.2d 556; Hutchinson Amusement Co. v. Vitaphone Corp., 1 Cir., 93 F.2d 176; Frazier v. New England Newspaper Pub. Co., D.C., 1 F.R.D. 734; and in some patent cases, Bellavance v. Plastic Craft, D.C., 30 F.Supp. 37; Comfy Mfg. Co. v. Dyer-Gruen-Jackson, D.C., 2 F.R.D. 293. For a discussion of the two types of issues, legal and equitable, and how “the issues, not the form of the case” determine the method of trial, see opinion by Judge C. E. Clark in Beaunit Mills v. Eday Fabric Sales Corp., 2 Cir., 124 F.2d 563. Plaintiff may therefore servé papers on a cross motion requesting that relief. I shall then deny the defendants’ motions and grant the plaintiff’s cross motions, at the same time providing that the defendants shall have twenty (20) days within which to answer the amended complaint dating from the day on which the orders to that effect are entered. The order granting a jury trial of all the issues will provide that the case be transferred to the jury calendar of this Court for trial," }, { "docid": "14540910", "title": "", "text": "is a broad general principle, but more detailed principles applicable to the facts of the instant case have been announced. It has been held that interrogatories which require research on the part of the responding party are objectionable. Coca Cola Co. v. Dixi-Cola Laboratories, D.C., 30 F.Supp. 275; Hercules Powder Co. v. Rohm & Haas Co., D.C., 3 F.R.D. 328; Byers Theaters v. Murphy, D.C., 1 F.R.D. 286; New England Terminal Co. v. Graver Tank & Mfg. Corporation, D.C., 1 F.R.D. 411. In the instant case, the defendant is to be required to conduct a most detailed research through its own records. \"This is no demand for simple and easily produced facts, but for a mass of information to be accumulated by the defendant for the benefit of the plaintiff. Many courts have held that interrogatories which are “unreasonable”, “burdensome”, “vexatious”, “onerous”, or “which impose an undue hardship” on the answering party, are objectionable. Newell v. Phillips Petroleum Co., 10 Cir., 144 F.2d 338; Coca Cola Co. v. Dixi-Cola- Laboratories, D.C., 30 F.Supp. 275; Canuso v. City of Niagara Falls, D.C., 4 F.R.D. 362; Brightwater Paper Co. v. Monadnock Paper Mills, D..C., 2 F.R.D. 547; Checker Cab Mfg. Corporation v. Checker Taxi Co., D.C., 2 F.R.D. 547. In the opinion of this Court, it is unreasonable to ask a defendant to perform entire, extensive accounting and auditing operations of his own books and records in order that he may prepare and present to the plaintiff, in tabulated form, or in other convenient form, every minute detail upon which the plaintiff may base his recovery of damages. That it would be burdensome, vexatious, and onerous cannot be doubted. Auditing and accounting are expensive and time consuming operations and the Government has provided funds and agents to perform these operations whenever necessary; it is neither reasonable nor proper to expect the defendant to perform such services for the sole benefit of the prosecuting agency and at his own cost, to his own consequent damage. Interrogatories directed toward relatively minor evidentiary details, rather than important facts are objectionable. Coca Cola Co. v. Dixi-Cola" }, { "docid": "7264792", "title": "", "text": "the interrogator has at his disposal an adequate or even better source of information. In the case of Patterson Oil Terminals, Inc. v. Charles Kurz & Co., Inc., 7 F.R.D. 250, loc. cit. 251, Judge Bard of the District Court, E, D. of Pennsylvahia said: “Although the interrogator may have the better source of information, it is not unfair to require that his opponent answer the interrogatories in question to the best of his ability so that the questions of fact may be reduced to a minimum before trial.” (Emphasis mine.) In his opinion in the Patterson case, supra, Judge Bard cites the cases of Chandler v. Cutler-Hammer, Inc., D.C., 31 F.Supp. 453; Nichols v. Sanborn Co., D.C., 24 F.Supp. 908; , American Steamship Co. v. Buckeye Steamship Co., D.c., 1 F.R.D. 773. However, in line w.ith the objections filed by the plaintiffs, I find a wealth of authority which I believe fits the peculiar circumstances of the case in question much better than the Patterson case. 2. It is the ascertainment of facts that is the object of discovery proceedings as contrasted with opinions, conclusions, or contentions. Cinema Amusements, Inc. v. Loew’s, D.C., 7 F.R.D. 318. Matters of opinion, conclusion or contention, do not properly come within the scope of Fed.Rules Civ.Proc. rule 33, 28 U.S.C.A. Klein v. Leader Elec. Corp., D.C., 81 F.Supp. 624. Under Federal Rules of Civil Procedure regarding interrogatories, the party,interrogated need only answer matters of fact within his knowledge, and interrogatories which merely seek to elicit opinions or which require research and compilation of data and information not readily known to the parties interrogated are improper. In view of the now available method of taking depositions there is no further necessity to resort to interrogatories where an extended examination is desired-. “But if discovery is to involve a thorough inquiry into the vital and highly controversial phases of the case, resort must, be had to an oral examination.” Coca Cola Co. v. Dixi-Cola Laboratories, D.C., 30 F.Supp. 275, loc. cit. 279. A party interrogated may only answer matters of fact within his knowledge, and" }, { "docid": "14540909", "title": "", "text": "price of said items being controlled by Revised Maximum Price Regulation No. 330.” The question of the propriety of such interrogatories must be considered from a number of angles. The decisions of the courts have been quite diverse in their interpretation of the rule, nevertheless, certain principles have been announced by various courts which may be used in testing the propriety of the interrogatories in this case. ' In citing these authorities, this Court does not mean to imply that each of the principles announced is adopted by this Court as a fixed and inflexible rule which would be applied in every case. The Court does intend to apply them as a group, which under the circumstances of this case, will provide a guide when applied as a group. The first of these principles is, that the right to propose interrogatories is subject to the exercise of judicial discretion by the court. Newell v. Phillips Petroleum Co., 10 Cir., 144 F.2d 338; Pueblo Trading Co. v. Reclamation Dist. No. 1500, D.C., 4 F.R.D. 471. This is a broad general principle, but more detailed principles applicable to the facts of the instant case have been announced. It has been held that interrogatories which require research on the part of the responding party are objectionable. Coca Cola Co. v. Dixi-Cola Laboratories, D.C., 30 F.Supp. 275; Hercules Powder Co. v. Rohm & Haas Co., D.C., 3 F.R.D. 328; Byers Theaters v. Murphy, D.C., 1 F.R.D. 286; New England Terminal Co. v. Graver Tank & Mfg. Corporation, D.C., 1 F.R.D. 411. In the instant case, the defendant is to be required to conduct a most detailed research through its own records. \"This is no demand for simple and easily produced facts, but for a mass of information to be accumulated by the defendant for the benefit of the plaintiff. Many courts have held that interrogatories which are “unreasonable”, “burdensome”, “vexatious”, “onerous”, or “which impose an undue hardship” on the answering party, are objectionable. Newell v. Phillips Petroleum Co., 10 Cir., 144 F.2d 338; Coca Cola Co. v. Dixi-Cola- Laboratories, D.C., 30 F.Supp. 275; Canuso" }, { "docid": "14373719", "title": "", "text": "MANDELBAUM, District Judge. The defendant moves to transfer this action from the jury calendar to the non-jury calendar of this court. This is a copyright infringement suit. Primarily, the plaintiff seeks an accounting of profits and injunctive relief. In each of the three causes of action pleaded, plaintiff alleges that she has no adequate remedy at law. She also demands damages as may be ascertained and determined upon the trial of this action. Plaintiff predicates her right to a jury trial by virtue of this demand for damages. Where a complaint contains both legal and equitable causes of action, under the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the right to a trial by jury as to the legal cause is preserved. Dellefield v. Blockdel Realty Co., D.C., 1 F.R.D. 689; Elkins v. Nobel et al., D.C., 1 F.R.D. 357. But, the Federal Rules of Civil Procedure have not abolished the distinction between equitable and legal remedies, and such distinctions remain the same as before the adoption of the new rules. It is only the procedural distinctions that have been abolished. Bellavance v. Plastic Craft Novelty Co., D.C., 30 F.Supp. 37, 39. At bar, the complaint is essentially equitable in nature and the demand for damages is merely incidental to the main relief. The motion to transfer the action to the non-jury calendar is granted. Sheldon v. Noredall Realty Co., D.C., 22 F.Supp. 91, modified on another point, 2 Cir., 95 F. 2d 48. The plaintiff has requested that in the event this action is transferred to the non-jury calendar, the Calendar Commissioner be directed to place this action on the calendar in a position determined by the date upon which issue was joined herein. I feel that there is merit to this request but an application for this relief should be made to Judge Knox, Senior Judge of this court, who passes upon all calendar matters." }, { "docid": "5942118", "title": "", "text": "jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.” (b) : ■ “Any party may demand a trial by jury of any issue triable of right by a jury * * Rule 39(a) : “When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless * * * (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the ■ United States.” The Rules of Civil Procedure have abolished the distinction in procedure between law and equity. The Rules have not abolished the distinction between legal and equitable remedies. They still remain. As was stated by Judge Brewster in Bellavance v. Plastic-Craft Novelty Co., D.C., 30 F.Supp. 37, 39: “To avoid constitutional complications, Rule 38 preserved those rights to a jury trial as declared by the Seventh Amendment, or as given by a statute of the United States. Inasmuch as this amendment applies only to suits at common law, a distinction will always need to be drawn between suits at law and suits in equity in order to determine whether one has a right, under the Constitution, to have the issues of the case determined by a jury. “The distinction between Law and Equity, abolished by the new rules, is a distinction in procedure and not a distinction between remedies. The distinction still remains between jury actions and non-jury actions; what was, before the adoption of the new rules, an action at laiv is a jury action, and what was a suit in equiiy falls■ into the category of a non-jury action.” (Italics supplied.) To the same effect, see 3 Moore’s Federal Practice, p. 3009. Thus, to determine the validity of plaintiff’s demand, inquiry must be made into the status of the case" }, { "docid": "4816583", "title": "", "text": "the Act if it explicitly or constructively alters the terms or conditions of an individual’s employment. Curry v. Dist. of Columbia, 195 F.3d 654, 659 (D.C.Cir.1999). Because it is well-estab lished that the DCHRA and Title VII employment discrimination actions are evaluated under the same legal standard, the following analysis applies, to both claims where implicated. See, e.g., Elhusseini v. Compass Grp. USA, Inc., 578 F.Supp.2d 6, 10 n. 4 (D.D.C.2008) (“[W]hen construing the DCHRA courts should look to precedent construing Title VII.”); Regan v. Grill Concepts-D.C., Inc., 338 F.Supp.2d 131, 134 (D.D.C.2004). 1. Gaskins and Burns may not pursue their Title VII claims against the District because they failed to properly exhaust their administrative remedies or provide any basis to waive the procedural requirements The District argues the Court should grant judgment in its favor with respect to Burns and Gaskins’ Title VII claims because they failed to exhaust their administrative remedies by timely filing a complaint with D.C. Office of Human Rights (“DCOHR”) or the EEOC. Burns and Gas-kins concede that they did not make a charge within the 300-day deadline from the date of the discrimination — the last day of their individual employment at DPR. Thus, the only issue here is whether the Court should apply its equitable discretion to toll the statute of limitations. Before filing a Title VII suit against an employer, an employee must adequately exhaust her administrative remedies within the manner and time limits prescribed by statute. Baird v. Snowbarger, 744 F.Supp.2d 279, 286 (D.D.C. 2010). Due to a work sharing agreement between the EEOC and the DCOHR, an employee in the District of Columbia is required to file an EEOC charge within 300 days of alleged discrimination. Tucker v. Howard Univ. Hosp., 764 F.Supp.2d 1, 6 (D.D.C.2011) (citing Griffin v. Acacia Life Ins. Co., 925 A.2d 564, 568-69 n. 13 (D.C.2007)). The procedural requirements governing a plaintiffs right to bring a Title VTI claim are “part and parcel of the congressional design” to give employers an opportunity to first handle matters internally whenever possible, and to ensure that federal courts are" }, { "docid": "14558349", "title": "", "text": "trial by jury as of right. Williams v. Collier, D.C., 32 F.Supp. 321. But in defendants’ prayer for relief there is no request for equitable relief. Defendants merely seek an adjudication of certain rights and money damages for any violation thereof. The fact that a declaration of rights is sought does not bar the defendants from a jury trial of the issues raised if these issues were formerly triable by a jury. The Declaratory Judgment Act, 28 U.S.C.A. § 400 (3), provides as follows: “When a declaration of right or the granting of further relief based thereon shall involve the determination of issues of fact triable by a jury, such issues may be submitted to a jury in the form of interrogatories, with proper instructions by the court, whether a general verdict be required or not. (Mar. 3, 1911, c. 231, § 274d, as added June 14, 1934, c. 512, 48 Stat. 955; as amended Aug. 30, 1935, c. 829, § 405, 49 Stat. 1027.)” See United States Fidelity & Guaranty Co. v. Nauer, D.C., 1 F.R.D. 547; Aetna Casualty & Surety Co. v. Quarles et al., 4 Cir., 92 F.2d 321. Defendants are entitled to a jury trial upon the issue of infringement inasmuch as no equitable relief is sought. Bellavance v. Plastic-Craft Novelty Co., D.C., 30 F.Supp. 37; United States v. Esnault-Pelterie, 299 U.S. 201, 57 S.Ct. 159, 81 L. Ed. 123; Heide v. Panoulias, 2 Cir., 188 F. 914, certiorari denied 223 U.S. 722, 32 S.Ct. 524, 56 L.Ed. 630; Trustees of Masonic Hall & Asylum Fund v. Fountain Electrical, etc., Corp., 2 Cir., 218 F. 642. Defendants are likewise entitled to a jury trial in an action at law for violation of Clayton and Sherman Anti-Trust statutes and upon the issue of unfair competition, where they are suing for money damages only. A question of similarities or differences in patents may properly be submitted to a jury. Tyler v. Boston, 7 Wall. 327, 74 U.S. 327, 9 L.Ed. 93. Accordingly the motion to strike the jury demand is denied. Settle orders on notice in accordance with" }, { "docid": "16889820", "title": "", "text": "their inherent characteristics, and rights and remedies peculiarly equitable likewise re-j-a¡n their inherent characteristics. Legal and equitable rights may still be pursued and the respective remedies administered as heretofore, not only in the same forum, but in the same proceeding. Williams v. Collier et al., D.C., 32 F.Supp. 321; Grauman et al. v. City Company of New York, Inc., et al., D.C., 31 F.Supp. 172; Bellavance v. Plastic-Craft Novelty Co. et al., D.C., 30 F.Supp. 37; Fraser v. Geist et al., D.C., 1 F.R.D. 267; Trial by Jury and the New Federal Rules of Procedure, 45 Yale L.J., 1022. See Liberty Oil Company v. Condon National Bank et al., 260 U.S. 235, 242, 43 S.Ct. 118, 67 L.Ed. 232. Causes of action cognizable and remediable in a court of law are triable as jury cases; causes of action cognizable and remediable in a court of equity are triable as nonjury cases. The Rules of Civil Procedure established a uniform system of procedure for law and equity and eliminated only the formal distinction. The “civil action is a mere procedural unit and the joinder, as in this case, of legal and equitable causes of action, which the rules permit, does not require or even warrant their being considered as a unit for the purposes of trial. While the rules effect a unity of procedure they do not I effect a rrierj er of remedies. Legal and i equitable remedies, while they may be a'dtninistered in the same proceeding, must b (^administered separately as heretofore.;, js not intended that the remedies shall be either jointly or interchangeably administered at the will or demand of the litigants. The rights and remedies of the ^respective parties remain unaffected, of action historically legal are?® triable by the jury; causes of action historically equitable are triable by the court, If both are joined in a single civil action, \\ the appropriate mode of trial must be followed as to each, and, in that sequence which will promote efficient administration without curtailing the substantive rights of the respective parties. Sherwood v. United States, 2 Cir., 112 F.2d" }, { "docid": "6024234", "title": "", "text": "the patent laws and authorizes the granting of injunctions according to the course and principles of courts of equity to prevent the violation of any rights secured by patent, and empowers the court to grant recovery of profits and damages. While the Rules of Civil Procedure (Rule 2) provide for one form of action, we agree with the Second Circuit Court of Appeals that they have not completely obliterated for all purposes, the historic differences between law; and equity. They have, for the purpose of achieving a simplified procedure, abolished technical differences, but cases that historically were equitable are still to be cried to the court, and those that were legal, to the jury. It is true that the Chancellor may separate legal issues raid send them to the jury once equitable issues have been disposed of, but this does not prevent him from exercising his historic power to dispose of the whole case as Chancellor. Beaunit Mills v. Eday Fabric Sales Corp., 2 Cir., 124 F.2d 563; Bellavance v. Plastic-Craft Novelty Co., D.C.Mass., 30 F.Supp. 37; Williams v. Collier, D.C.Pa., 32 F.Supp. 321. Section 4921 speaks in terms clearly equitable. As was said by the court in the Beaunit Mills case, supra [124 F.2d 565], “It is true that on issues of patent infringement a jury trial may be bad under a claim for damages only, 35 U.S.CA. § 67 [R.S. § 4919], as distinguished from a claim for injunction and accounting of profits. 35 U.S.C.A. § 70, [R.S. § 4921]. Here * * * the complaint * * * is framed along equitable lines looking to injunctive relief, both prohibitory and mandatory in character, as well as an accounting, together with declaratory relief * * *. This appears to stamp it as presenting equitable issues only, * * *; and hence when the district judge acted, he was correct in denying jury trial. But this does not necessarily mean that a jury issue may not later develop. * * * If, however, issues of a legal nature are later developed, the question of jury trial will have to" }, { "docid": "5942117", "title": "", "text": "herein, are the chief stockholders controlling the corporation. Further, plaintiff' alleges that Philip Collier, in making the purchases mentioned previously, drew either from the bank account of the corporate defendant or that of his wife Bertha, and the proceeds from the resales were deposited in the latter’s bank account, she being either the beneficiary of the profits of the fraudulent transactions or a straw party for either or both of the other defendants. Moreover, it is alleged with regard to these purchases that, in so doing, Collier assumed to act as the duly authorized agent of the corporate defendant which purportedly received the merchandise involved. It is on the basis of these allegations that the plaintiff trustee prayed for the relief already stated. Several of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, are pertinent to a discussion of the question under consideration. The relevant provisions of these Rules are: Rule 2: “There shall he one form of action to be known as ‘civil action.’ ” Rule 38(a): “The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.” (b) : ■ “Any party may demand a trial by jury of any issue triable of right by a jury * * Rule 39(a) : “When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless * * * (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the ■ United States.” The Rules of Civil Procedure have abolished the distinction in procedure between law and equity. The Rules have not abolished the distinction between legal and equitable remedies. They still remain. As was stated by Judge Brewster in Bellavance v. Plastic-Craft Novelty Co., D.C., 30 F.Supp. 37," }, { "docid": "7827780", "title": "", "text": "business or property by reason of anything forbidden in the Anti-Trust Laws “And shall recover three fold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee”. A long line of decisions hold that a suit in equity does not lie under this section; that an action thereunder is an action at law as to which the parties are. entitled to a jury trial by virtue of the Seventh Amendment to the Constitution. Moore et al. v. Backus et al., 7 Cir., 78 F.2d 571, 101 A.L.R. 379, Certiorari Denied 296 U.S. 640, 56 S.Ct. 173, 80 L.Ed. 455; Hansen Packing Co. v. Swift & Co., D.C., 27 F.Supp. 364; Farmers Co-op. Oil Co. v. Socony-Vacuum Co., Inc., D.C., 43 F.Supp. 735. It is of the essence, in determining whether or not a jury trial should be granted, to make inquiry as to what the plaintiffs’ bill of complaint seeks and whether it is, in ■its nature, either equitable or legal. This is true for the right to a jury trial would depend upon the facts stated in the complaint. I think a fair examination of the pleadings will disclose that the only relief claimed is for a money judgment, together with liquidated damages and attorneys’ fees, as provided by the Act. There is no equitable relief asked for in any way whatsoever. If the issues tendered by the pleadings are purely legal, the parties are entitled to a jury trial as of right under Rule 38(a) and demanded under Rule 38(a) and (b). Hargrove v. American Cent. Ins. Co., 10 Cir., 125 F.2d 225; Schoenthal v. Irving Trust Co., 287 U.S. 92, 95, 53 S.Ct. 50, 77 L.Ed. 185. Rule 38 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, abolishes any distinction between law and equity. Conn v. Kohlemann, D.C., 2 F.R.D. 514. The distinction between law and equity, abolished by the new rules, is in procedure and not one between remedies, and a distinction still remains between jury actions and nonjury actions. This remains in the same manner as" }, { "docid": "11313283", "title": "", "text": "representatives may come to expect a price increase to result in a corresponding increase in dollar commissions, and although Medtronic’s actions may have frustrated those expectations, the commission/price adjustment did not constitute a breach of contract. C. Unclean Hands Prow’s argument that Medtronic’s actions were inequitable, and that the doctrine of unclean hands therefore bars enforcement of the covenant, must be considered in light of well-settled equitable principles. The conduct of Medtronic said to constitute unclean hands is the same conduct which Prow argues constitutes breach of contract, and which we have discussed above. The district court found that even assuming arguendo Medtronic’s actions were inequitable, such misconduct must bear some relation to the merits of the case, see Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 863-65 (5th Cir.1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1277, 63 L.Ed.2d 601 (1980), and that no such relationship was established here. We agree. We may also look to Prow’s conduct to determine whether he who seeks equity has done equity. See Koster v. Lumbermens Mutual Co., 330 U.S. 518, 522, 67 S.Ct. 828, 830, 91 L.Ed. 1067 (1947); U.S. v. Wilson, 707 F.2d 304, 311-12 (8th Cir.1982). The instant case is not one where an employer, for less than noble reasons, fires an employee, secure in the knowledge that a post-employment restrictive covenant prohibits the employee from pursuing his or her chosen vocation. Here Prow was negotiating with a direct competitor of Medtronic while still employed by Medtronic. He gave a copy of his confidential Medtronic employment agreement to the competitor. While still on Medtronic’s payroll, he directed his attorney to prepare the complaint in this lawsuit, and bargained with Physiotech to pay all his legal expenses. Then, when the negotiations with Pacesetter and Physiotech were finalized, his new job was assured, and this lawsuit was ready to file, he resigned from Medtronic. We conclude that although Prow comes before this Court seeking equity, he has not done equity- D. Summary We therefore find that the restrictive covenant held valid in Gibbons, Benda and Janss is not rendered" }, { "docid": "6634295", "title": "", "text": "may determine whether or not it has jurisdiction of the subject matter of a cause would appear but a throwback to the days when form ruled over substance. In any event, the problem of whether jurisdictional-fact issues must be submitted to the jury is not necessarily confronted in the case at bar. For here plaintiff invokes the equity jurisdiction of this Court [Briggs v. United Shoe Machinery Co., 1915, 239 U.S. 48, 50, 36 S.Ct. 6, 60 L.Ed. 138], seeking an injunction to restrain future infringement and an accounting of profits derived from past infringement and unfair competition, together with a money judgment incidental to the equitable relief asked. Cf.: Chappell & Co. v. Palermo Cafe Co., 1 Cir., 1957, 249 F.2d 77, 80-82, affirming D.C.D.Mass.1956, 146 F.Supp. 867; Coca-Cola Co. v. Old Dominion Beverage Corp., 4 Cir., 1921, 271 F. 600, 602; Folmer Graflex Corp. v. Graphic Photo Service, D.C.D.Mass.1941, 41 F.Supp. 319, 320; see: Clark v. Wooster, 1886, 119 U.S. 322, 325, 7 S.Ct. 217, 30 L.Ed. 392; Beaunit Mills v. Eday Fabric Sales Corp., 2 Cir., 1942, 124 F.2d 563, 565-566; Bellavance v. Plastic-Craft Novelty Co., D.C.D.Mass.1939, 30 F.Supp. 37, 38-39. Since the law affords no adequate remedy, it is plain that this action is not one at common law with respect to which a jury trial is a matter of right under the Seventh Amendment, but is in effect a suit in equity as to which there is no problem of jury trial. See: N.L.R.B. v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 48, 57 S.Ct. 615, 81 L.Ed. 893; Schoenthal v. Irving Trust Co., 1932, 287 U.S. 92, 94-97, 53 S.Ct. 50, 77 L.Ed. 185; Kemp-Booth Co. v. Calvin, 9 Cir., 1936, 84 F.2d 377, 380. The question confronted here then is whether, in a case invoking the equity jurisdiction of this Court, the trial judge as fact-finder may in his discretion decide a jurisdictional issue summarily or must try it plenarily, albeit perhaps as a “separate issue” under Rule 42(b). Where the jurisdictional issue to be determined in a non-jury case stands" }, { "docid": "7827781", "title": "", "text": "trial would depend upon the facts stated in the complaint. I think a fair examination of the pleadings will disclose that the only relief claimed is for a money judgment, together with liquidated damages and attorneys’ fees, as provided by the Act. There is no equitable relief asked for in any way whatsoever. If the issues tendered by the pleadings are purely legal, the parties are entitled to a jury trial as of right under Rule 38(a) and demanded under Rule 38(a) and (b). Hargrove v. American Cent. Ins. Co., 10 Cir., 125 F.2d 225; Schoenthal v. Irving Trust Co., 287 U.S. 92, 95, 53 S.Ct. 50, 77 L.Ed. 185. Rule 38 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, abolishes any distinction between law and equity. Conn v. Kohlemann, D.C., 2 F.R.D. 514. The distinction between law and equity, abolished by the new rules, is in procedure and not one between remedies, and a distinction still remains between jury actions and nonjury actions. This remains in the same manner as existed before the adoption of the new rules and what was an action at law before their adoption under the provisions of the Seventh Amendment still remains a jury action. Morre’s Federal Practice, Vol. 3, p. 3004, et seq.; Bellavance v. Plastic-Craft Novelty Co. et al., D.C., 30 F.Supp. 37. The right of a jury trial in civil cases at common law is the basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment to the United States Constitution. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute should be jealously guarded by the courts. Thus, to determine the validity of the plaintiffs’ demand for a jury trial, inquiry must be made into the status of the case had it arisen when the formal distinctions between an action at law and a suit in equity still existed. It has been often said that the trial by jury is a fundamental guarantee of the rights and liberty of the people," }, { "docid": "7827782", "title": "", "text": "existed before the adoption of the new rules and what was an action at law before their adoption under the provisions of the Seventh Amendment still remains a jury action. Morre’s Federal Practice, Vol. 3, p. 3004, et seq.; Bellavance v. Plastic-Craft Novelty Co. et al., D.C., 30 F.Supp. 37. The right of a jury trial in civil cases at common law is the basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment to the United States Constitution. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute should be jealously guarded by the courts. Thus, to determine the validity of the plaintiffs’ demand for a jury trial, inquiry must be made into the status of the case had it arisen when the formal distinctions between an action at law and a suit in equity still existed. It has been often said that the trial by jury is a fundamental guarantee of the rights and liberty of the people, and subsequently every reasonable presumption should be indulged in against its waiver. The guarantee under the Seventh Amendment applies only to suits of such character as may be maintainable under common law at the time the amendment was adopted, and under the Sixth Amendment only those proceedings technically criminal in character. Farmers’ Livestock Commission Co. et al. v. United States et al., D.C., 54 F.2d 375, 378; Capital Trac tion Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873; United States v. Zucker, 161 U.S. 475, 16 S.Ct. 641, 40 L.Ed 777; Trial by Jury, 45 Yale Law Journal 1022; 20 Texas Law Review, 427. The determination of the mode of trial, whether by jury or otherwise, must be pursuant to and in accordance with established principles of common law, and inquiry must be made into the nature of the cause of action and appropriate remedy as they existed under common law. If the cause of action is legal in nature and formerly remedial in a court of law, the right of" } ]

[ { "docid": "22835556", "title": "", "text": "and 963 (the 1993 incident). The indictment alleged that in July 1993, Real-Hernandez and others loaded approximately 18 duffel bags containing nearly 1,800 pounds of marijuana into two inflatable, Zodiac-type boats headed for Silver Strand State Beach in Coronado. Meanwhile, the district court postponed Real-Hernandez’s sentencing in this case from August 1, 1994, to January 30, 1995. At the postponed hearing, Real-Hernandez argued that he was entitled to relief from the mandatory minimum sentence pursuant to 18 U.S.C. § 3553(f), implemented verbatim at U.S.S.G. § 5C1.2. Sections 3553(f) and 5C1.2 provide that the district court shall impose a sentence without regard to the statutory minimum, if the court finds at sentencing that: (1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. 848; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. The government agreed that Real-Hernandez satisfied subsections (1) through (4), but it argued that he did not truthfully provide all information he had concerning his offense or offenses that were part of the same course of conduct or common scheme or" } ]

[ { "docid": "14932398", "title": "", "text": "and U.S.S.G. § 5C1.2. Congress enacted the safety valve provision, 18 U.S.C. § 3553(f), in order to limit the harsh .effect of mandatory minimum sentences in certain cases. See United States v. Ortiz-Santiago, 211 F.3d 146, 150 (1st Cir.2000). The Sentencing Commission incorporated the text of § 3553(f) verbatim into the Guidelines. Id. U.S.S.G. § 5C1.2 provides: [T]he court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteria in 18 U.S.C. § 3553(f)(l)-(5) set forth verbatim below: (1) the defendant does not have more than 1 criminal history point ...; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense ... and was not engaged in a continuing criminal enterprise- ...; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government - is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. As the parties agree, only the fifth element of the safety valve provision is in dispute. The issue is whether the district court clearly erred in finding that Bermúdez had not satisfied the requirement that “not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or" }, { "docid": "6766178", "title": "", "text": "168 months. Further, the court found that Lopez was entitled to a downward departure to the statutory minimum sentence of 120 months based on, among other things, his extraordinary family responsibilities and serious coercion or duress. See, e.g., §§ 5K2.0 and 5K2.12. Finally, the court stated that it believed that the safety valve prevented it from departing below the statutory minimum sentence. Nonetheless, the court expressly stated that, but for that prohibition, it would have granted a downward departure to 108 months. Lopez now appeals his sentence. II. ANALYSIS The sole issue raised on appeal is whether the district court erroneously believed that the safety valve provisions prevented it from departing below the statutory minimum sentence. This Court reviews a district court’s legal interpretation of the sentencing guidelines de novo. United States v. Rodriguez, 60 F.3d 193, 195 (5th Cir.1995). Section 5C1.2 is known as the “safety valve” provision in the sentencing guidelines and is entitled “Limitations on Applicability of Statutory Minimum Sentences in Certain Cases,” and it provides as follows: In the case of an offense under 21 U.S.C. § 841 ... [and] § 846 ..., the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteria in 18 U.S.C. § 3553(f)(l)-(5) set forth verbatim below: (1) the defendant does not have more than 1 crimina] history point, as deter mined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information" }, { "docid": "14932397", "title": "", "text": "giving testimony at trial was amply supported by the record, where defendant’s testimony as to who set fire to a certain business differed from his earlier statement to FBI agents). But even assuming arguendo that more was needed, the district court also pointed to the fact that Bermúdez admitted on cross examination that the information he had given the government in his debriefings about the charged February 9 drug transaction had been incomplete. This admission followed his disclosure during cross examination of additional details of the transaction not revealed during his debriefings or on direct examination. As the district court’s ultimate finding that Bermudez’s trial testimony and debriefing statements had not been “truthful, or accurate, or complete,” as required by the plea agreement, was amply supported, we are satisfied that the district court properly refused to order specific performance of the government’s agreement to file a substantial assistance motion. B. Safety Valve Bermúdez argues that the district erred in finding that he was ineligible for the safety valve reduction pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. Congress enacted the safety valve provision, 18 U.S.C. § 3553(f), in order to limit the harsh .effect of mandatory minimum sentences in certain cases. See United States v. Ortiz-Santiago, 211 F.3d 146, 150 (1st Cir.2000). The Sentencing Commission incorporated the text of § 3553(f) verbatim into the Guidelines. Id. U.S.S.G. § 5C1.2 provides: [T]he court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteria in 18 U.S.C. § 3553(f)(l)-(5) set forth verbatim below: (1) the defendant does not have more than 1 criminal history point ...; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense ... and was not" }, { "docid": "22462205", "title": "", "text": "to more equitably mete out justice to cooperating individuals playing minor roles in such conspiracies, Congress passed 18 U.S.C. § 3553(f) — the “safety valve” provision — as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322 § 80001. That provision, entitled “Limitation on applicability of statutory mínimums in certain cases,” provides, in pertinent part: Notwithstanding any other provision of law, in the case of an offense ... the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that— (1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. 18 U.S.C. § 3553(f) (emphasis added). Shortly after adoption of this provision, the United States Sentencing Commission promulgated a new guideline, USSG § 5C1.2, which adopted the safety valve language verbatim. Application of the" }, { "docid": "2653320", "title": "", "text": "when a case is remanded under § 3742 or § 3582(c), the Sentencing Guidelines or other relevant standards providing for the revision of sentences. Accordingly, the district court’s judgment is vacated, and the case is remanded for further safety valve proceedings to determine whether Clark should be granted relief under 18 U.S.C. § 3553(f). Now that the district court can reconsider this case under the safety valve statute, it should consider in the first instance the question of whether the sentencing calculation should be made in this case under the weight standards for LSD now provided in the Sentencing Guidelines. It should conduct the hearing on remand with the defendant and her lawyer present. . Section 3582(c)(2) provides that a court may modify a sentence when the Sentencing Commission has \"subsequently lowered” the sentencing range, as occurred in the instant case. . Subsection (f) of the safety valve statute provides: (f) Limitation on applicability of statutory mínimums in certain cases. — -Notwithstanding any other provision of the law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 961, 963), the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the government has been afforded the opportunity to make a recommendation, that— (1) the defendant does not have more than one criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal" }, { "docid": "23260242", "title": "", "text": "for downward departure based on the defendant’s substantial assistance. See 18 U.S.S.G. § 3553(e). The safety valve provision now allows a sentence below the statutory minimum for a defendant who may be less culpable and less knowledgeable than other eodefendants, but who nevertheless is willing to provide all the information he has. That provision is intended to benefit “first-time, nonviolent drug offenders who were not organizers of criminal activity and who have made a good faith effort to cooperate with the government.” United States v. Arrington, 73 F.3d 144, 147 (7th Cir.1996); see also United States v. Thompson, 76 F.3d 166, 171 (7th Cir.1996) (discussing legislative history of the statute and guideline). To be eligible for a reduction below a mandatory minimum sentence, a defendant must satisfy the five criteria presented in the statute (18 U.S.C. § 3553(f)) and repeated in the guideline (U.S.S.G. § 5C1.2). Section 5C1.2 provides as follows: In the ease of an offense under 21 U.S.C. § 844, § 846, § 960, or § 963, the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteria in 18 U.S.C. § 3553(f)(1) — (5) set forth verbatim below: (1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course" }, { "docid": "22263110", "title": "", "text": "foregoing reasons, we affirm Cata-lano’s sentence of sixty months. . The \"safety valve\" provisions of 18 U.S.C. § 3553(f) allow a defendant to be sentenced without respect to any applicable mandatory minimum sentence if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that— (1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. 848; and (5)not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. 18 U.S.C. § 3553(f); see also USSG § 5C1.2 (incorporating language of 18 U.S.C. § 3553(f)). . The parties initially agreed that Catalano's base offense level would be 26, pursuant to USSG § 2D 1.1 (a)(3) and (c)(7) (1994), less three levels for acceptance of responsibility, corresponding to a sentencing range of 46-57 months. The parties later acknowledged, however, that in the event Catalano satisfied the “safety valve” provision, his sentencing range would be 37-46 months. Under USSG § 2D1.1(b)(4) (1995), where a defendant meets the “safety valve” criteria, two levels Eire subtracted from the base offense level if the offense level is 26 or higher. Catalano would have" }, { "docid": "11783578", "title": "", "text": "the government argues that the District Court did not.violate Holguin’s constitutional rights by imposing the mandatory minimum five-year sentence because the relevant maximum is not the top of the Guidelines range, but rather, the 40 years established by 21 U.S.C. § 841(b)(1)(B). The government argues that although Holguin is correct that the Guidelines were mandatory at the time of his sentencing, the Supreme Court has made clear that both of its holdings in Booker were to apply retroactively to all cases on direct review, and there is no ex post facto problem because the change of the Guidelines from mandatory to advisory was the result of judicial decisionmaking, not a law of Congress. DISCUSSION Title 18, Section 3553(f) of the United States Code, known as the “safety valve” statute, provides that district courts may impose sentences below the statutory mandatory mínimums set forth in 21 U.S.C. §§ 841, 844, 846, 960, and 963, if certain factors are present. 18 U.S.C. § 3553(f). Specifically, a district court may sentence a defendant without regard to the statutory minimum in such cases if: (1) the defendant does not have more than one criminal history point under the Guidelines; (2) the defendant did not use violence, a credible threat of violence, or did not possess a firearm or other dangerous weapon (or induce another to do so) in connection with the offense; (3) the offense did not result in death or serious injury; (4) the defendant was not an organizer, leader, manager, or supervisor of the offense as determined under the Guidelines and was not involved in a continuing criminal enterprise; and (5) the defendant provided the government, not later than the sentencing hearing, with all information and evidence concerning the offense known to him. See 18 U.S.C. § 3553(f). The statute provides that a district court “shall impose a sentence pursuant to [the Guidelines], if the court finds” that the safety valve eligibility requirements have been met. Id. A. The “Shall Impose” Language of Section 3553(f) We had previously identified and explicitly left open the question of what effect the Supreme Court’s decision" }, { "docid": "22286258", "title": "", "text": "on the two firearm convictions, Simpson must serve a mandatory term of imprisonment of 300 months to run consecutive to the sentence imposed for his other offenses. There are only two circumstances in which a court can depart downward from a statutorily authorized mandatory minimum sentence. Either the Government must file a motion to recognize the defendant’s “substantial assistance” in the investigation or prosecution of another person, see 18 U.S.C. § 3553(e), or, the defendant must fall within the provisions of the “safety valve” embodied in 18 U.S.C. § 3553(f). Neither circumstance is applicable here. According to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, a court may depart downward from a statutory mandatory minimum if the government files a motion stating that the defendant has provided substantial assistance. The Government did not file a substantial assistance motion in this case, and therefore the district court could not depart downward from the statutory minimum sentences on this ground. Under the safety-valve provision of 18 U.S.C. § 3553(f), a sentencing court can depart downward from a statutory minimum sentence for an offense arising under 21 U.S.C. §§ 841, 844, 846, 960 or 963 if the defendant meets each of five criteria: 1) the defendant does not have more than 1 criminal history point; 2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense; 3) the offense did not result in death or serious bodily injury to any person; 4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, and was not engaged in a continuing criminal enterprise; and 5) not later than the time of the sentencing hearing, the defendant has truthfully provided the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. But Simpson could not qualify for a downward departure under the safety-valve provision because he had four criminal history points, possessed a firearm during two of" }, { "docid": "22393972", "title": "", "text": "particular defendant is eligible for relief’ under the safety valve, United States v. Real-Hernandez, 90 F.3d 356, 360 (9th Cir.1996) (emphasis added), we review de novo the district court’s statutory interpretation of § 3553(f)(5), see Cantrell, 433 F.3d at 1279. See also United States v. Ferryman, 444 F.3d 1183, 1185-86 (9th Cir.2006) (reviewing determination of safety valve eligibility for clear error but independently interpreting “[t]he phrase ‘in connection with’ ” as a question of law); Shrestha, 86 F.3d at 938-40 (noting that whether defendant had been completely truthful for purposes of § 3553(f)(5) was a factual matter, but “deem[ing legally] irrelevant” defendant’s “denial of guilty knowledge at trial”). III. Discussion The safety valve statute provides that the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that— (1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and (5) not later than the time of the sentencing hearing the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court" }, { "docid": "22660824", "title": "", "text": "3582(c) sentencing reconsideration. In light of this limit, we find that the district court was correct in holding that it lacked jurisdiction to depart downward because of Bravo’s medical condition to an extent greater than that authorized under Section 3582(c) based on the amended guideline provision. Because we find that the district court was correct in refusing to depart downward to account for Bravo’s ill health, we do not reach the question whether the safety valve statute, 18 U.S.C. § 3553(f), should be applied at a limited Section 3582(c) rehearing. The safety valve applies where application of the guidelines would result in imposition of a sentence that is lower than the statutory minimum of 10 years. In the case before us, Bravo’s revised sentence of 168 months, or 14 years, does not trigger possible application of the safety valve, and thus the question of whether the district court would have jurisdiction to apply the provision had Bravo’s sentence been reduced below 10 years is irrelevant here. Finally, we find that the district court was correct in declining to consider Bravo’s Eighth Amendment claim. As stated above, Section 3582(c), under which this sentencing hearing was held, does not grant to the court jurisdiction to consider extraneous resentencing issues such as this one. Bravo must instead bring such a collateral attack on his sentence under 28 U.S.C. § 2255. AFFIRMED. . 18 U.S.C. § 3553(f) states, in pertinent part: Notwithstanding any other provision of law, in the case of an offense under [21 U.S.C. § 963], the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission ... without regard to any statutory minimum sentence, if the court finds at sentencing ... that— (1) the defendant does not have more than 1 criminal history point ...; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon ... in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or" }, { "docid": "22393971", "title": "", "text": "to tell all he knows and to obtain the benefit of the safety valve. This court does not believe that this effort represents a good faith cooperation with the government and the court does not accept the proffer. The district court “add[ed] that even if the defendant was safety valve eligible, the court would not, under the circumstances of this case, be inclined to go below that statutory mandatory minimum.” The court sentenced Mejia-Pimental to 156-months imprisonment — 36 above the mandatory minimum. Mejia-Pimental timely appealed, arguing that he had satisfied the fifth safety valve factor, that the district court’s interpretation of the safety valve statute was incorrect, and that the court therefore erred in considering the mandatory minimum when calculating his sentence. II. STANDARD OF REVIEW We review “ ‘the district court’s interpretation of the Sentencing Guidelines de novo.’ ” United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.2006) (quoting United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005)). Although we “review for clear error the district court’s factual determination that a particular defendant is eligible for relief’ under the safety valve, United States v. Real-Hernandez, 90 F.3d 356, 360 (9th Cir.1996) (emphasis added), we review de novo the district court’s statutory interpretation of § 3553(f)(5), see Cantrell, 433 F.3d at 1279. See also United States v. Ferryman, 444 F.3d 1183, 1185-86 (9th Cir.2006) (reviewing determination of safety valve eligibility for clear error but independently interpreting “[t]he phrase ‘in connection with’ ” as a question of law); Shrestha, 86 F.3d at 938-40 (noting that whether defendant had been completely truthful for purposes of § 3553(f)(5) was a factual matter, but “deem[ing legally] irrelevant” defendant’s “denial of guilty knowledge at trial”). III. Discussion The safety valve statute provides that the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that— (1) the defendant does not have more than 1 criminal history" }, { "docid": "6877318", "title": "", "text": "in imposing sentence. Subsections (e) and (f) deal with a court’s power to afford relief from statutorily imposed minimum sentences. Comparing the form and function of these latter two subsections should provide a panoramic view of the exceptions that Congress wished to create to the otherwise mandatory imposition of statutory minimum sentences. This approach requires that we compare the language of section 3553(e) (the provision at issue in this case) with the language of section 3553(f) (the only other proviso in section 3553 dealing with mandatory minimum sentences). Doing so, the conclusion is inescapable that the language Congress used in these two sections differs radically — and that difference hardly can be dismissed as a mere fortuity. 18 U.S.C. § 3553(f) — the so-called “safety valve” provision — reads as follows: Limitation on applicability of statutory minimums in certain cases. Notwithstanding any other provision of law, in the case of an offense under [specified sections of the criminal code not relevant here], the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under Section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that— (1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part" }, { "docid": "22409294", "title": "", "text": "12-14 and October 17 and found guilty of possession with intent to distribute and importation of over two ldlos of heroin. In an interview with a probation officer, Shrestha again stated that he did not know there was heroin in the suitcase, and he reiterated his trial testimony that he was merely returning the suitcase to a friend of Keepa’s. The probation officer' calculated Shrestha’s guideline sentence range to be seventy-eight to ninety-seven months, based on a ten-year mandatory minimum with a four-level downward adjustment for minimal role in the offense. At the sentencing hearing, Shrestha did not recant his trial testimony that he had no knowledge of the drugs prior to their discovery by the customs agents. The district court sentenced Shrestha to seventy-eight months in prison based on the adjustment recommended by the probation officer and its further finding that Shrestha was eligible for relief under the “safety-valve” provision of the Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C. § 3553(f), and U.S.S.G. § 5C1.2. The Government timely appealed the reduction under § 3553(f). ANALYSIS The issue to be determined here is whether the district court correctly determined that Shrestha qualified for relief under the provisions of subsection (5) of the Mandatory Minimum Sentencing Reform Act (“MMSRA”), 18 U.S.C. § 3553(f), also known as the “safety valve” provision, which provides for relief from an otherwise applicable mandatory minimum sentence if: (1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and (5) not later than the time of the sentencing hearing, the" }, { "docid": "17243913", "title": "", "text": "before so concluding, we address Poyato’s attempt to distinguish Duncan. Poyato argues that Duncan did not involve a defendant’s statutory right to the safety valve under 18 U.S.C. § 3553(f). Poyato argues that unlike the now advisory Sentencing Guidelines, § 3553(f) is mandatory and requires a sentence within the Sentencing Guidelines. Section 3553(f) provides in relevant part: Limitation on applicability of statutory mínimums in certain cases. — Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that— (1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has" }, { "docid": "22286259", "title": "", "text": "statutory minimum sentence for an offense arising under 21 U.S.C. §§ 841, 844, 846, 960 or 963 if the defendant meets each of five criteria: 1) the defendant does not have more than 1 criminal history point; 2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense; 3) the offense did not result in death or serious bodily injury to any person; 4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, and was not engaged in a continuing criminal enterprise; and 5) not later than the time of the sentencing hearing, the defendant has truthfully provided the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. But Simpson could not qualify for a downward departure under the safety-valve provision because he had four criminal history points, possessed a firearm during two of his drug offenses, and was found to be an organizer, leader, manager, or supervisor of the criminal activity. On this record, the district court was bound to impose the statutorily authorized mandatory minimum sentences for Simpson’s crimes, namely 240 months for the drug convictions plus 300 months for the two firearms convictions for a total mandatory minimum sentence of 540 months. The district court had no discretion in this case to depart downward from these congressionally created explicit mandatory minimum sentences. We conclude, therefore, that the district court erred in attributing 857.7 grams of cocaine to Simpson, and abused its discretion in sentencing Simpson to 352 months in prison. Accordingly, although we affirm the conviction, we are required to vacate the district court’s sentencing order and remand for re-sentencing consistent with this opinion. VACATED AND REMANDED. . We note that in the community where these drug transactions took place purchases of an \"ounce” referred to something less than 28 grams. . We note that this was an apparent error in the PSI Report since the" }, { "docid": "789173", "title": "", "text": "(1991) (same). .Both of Hernandez's convictions carry a minimum sentence of ten years. 18 U.S.C. § 3553(f), however, provides a statutory basis for relief from the mandatory minimum sentences. If all of § 3553(f)’s requirements are met, then \"the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission ... without regard to any statutory minimum sentence. ...” 18 U.S.C. § 3553(f). To be eligible for § 3553(f) relief: (1) a defendant must not have more than one criminal history point; (2) he must not have used violence or possessed a dangerous weapon in connection with his offense; (3) the offense must not have resulted in death or serious bodily injury to a person; (4) he must not have been a leader in the offense or engaged in a continuing criminal enterprise; and (5) he must have truthfully provided to the Government all information and evidence that he has concerning the offense. 18 U.S.C. § 3553(f). . The parties do not dispute the district court’s factual findings at sentencing. . In § 3553(f), the word \"shall” appears: \"the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission.” Id. (emphasis added)." }, { "docid": "23367538", "title": "", "text": "less serious offenders and to reduce sentencing disparity. When the statutory safety valve requirements of § 3553(f) are met, “district courts still ‘must consult [the] Guidelines and take them into account when sentencing,’ even though they now have the discretion to impose non-Guidelines sentences.” United States v. Cantrell, 433 F.3d 1269, 1278 (9th Cir.2006) (quoting Booker, 543 U.S. at 264, 125 S.Ct. 738). III. APPLICATION TO CARDENAS-JUAREZ’S SENTENCE In imposing Cardenas-Juarez’s sentence, the district court determined that the safety valve provision of 18 U.S.C. § 3553(f) was advisory and the minimum sentence provision of 21 U.S.C. § 841 was mandatory; the mandatory minimum “trumped” the advisory safety valve, and therefore the court was precluded from applying the safety valve in any way. As previously discussed, however, the advisory nature of the Guidelines does not make application of the § 3553(f) safety valve advisory. Section 3553(f) must still be applied in cases where its five eligibility-requirements are met. See 18 U.S.C. § 3558(f) (listing the following requirements: (1) no more than one criminal history point, or previous offense; (2) the absence of violence or the use of a firearm in connection with the offense; (3) no resulting death or serious bodily injury; (4) the defendant’s role as something other than an organizer, leader, manager, or supervisor, and the absence of a continuing criminal enterprise; and (5) the defendant’s truthful cooperation in telling the government everything he knows about the offense). Neither the parties nor the district court has ever contended that Cardenas-Juarez did not satisfy the five safety valve eligibility requirements. Therefore, the plain language of 18 U.S.C. § 3553(f) requires the district court to impose a sentence without regard to the mandatory mínimums. As Cardenas-Juarez points out in his brief, “the ‘shall’ in the ‘safety valve’ language is directed not only at the phrase ‘impose a sentence pursuant to the guidelines,’ but also at the subsequent phrase ‘without regard to any statutory minimum sentence.’ ” Our holding today is not inconsistent with Booker. Section 3553(f) requires the district court to impose a sentence that “take[s] account of the [advisory] Guidelines" }, { "docid": "23367539", "title": "", "text": "previous offense; (2) the absence of violence or the use of a firearm in connection with the offense; (3) no resulting death or serious bodily injury; (4) the defendant’s role as something other than an organizer, leader, manager, or supervisor, and the absence of a continuing criminal enterprise; and (5) the defendant’s truthful cooperation in telling the government everything he knows about the offense). Neither the parties nor the district court has ever contended that Cardenas-Juarez did not satisfy the five safety valve eligibility requirements. Therefore, the plain language of 18 U.S.C. § 3553(f) requires the district court to impose a sentence without regard to the mandatory mínimums. As Cardenas-Juarez points out in his brief, “the ‘shall’ in the ‘safety valve’ language is directed not only at the phrase ‘impose a sentence pursuant to the guidelines,’ but also at the subsequent phrase ‘without regard to any statutory minimum sentence.’ ” Our holding today is not inconsistent with Booker. Section 3553(f) requires the district court to impose a sentence that “take[s] account of the [advisory] Guidelines together with other sentencing goals” outlined in § 3553(a). See Booker, 543 U.S. at 259, 125 S.Ct. 738. Furthermore, the simple inclusion of mandatory language in a portion of the Federal Sentencing Act does not render it invalid after Booker. Booker itself left mandatory language in place in 18 U.S.C. § 3553(a): “The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” 18 U.S.C. § 3553(a) (West Supp.2005) (emphasis added). The statutory safety valve of 18 U.S.C. § 3553(f) thus survives the Supreme Court’s holding in Booker, and district courts must continue, in accordance with congressional intent, to apply its relief from mandatory minimums in appropriate cases. IV. CONCLUSION Because the district court incorrectly interpreted Booker as precluding application of the statutory safety valve of 18 U.S.C. § 3553(f), we vacate Cardenas-Juarez’s sentence and remand his case to the district court for resentencing in accordance with the principles outlined above. Sentence VACATED. REMANDED FOR RESENTENCING. . In his brief before" }, { "docid": "3370634", "title": "", "text": "faith effort to cooperate with the Government to a sentence under the federal guidelines instead of the applicable statutory mandatory minimum sentence. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2; see also United States v. Arrington, 73 F.3d 144, 147-48 (7th Cir.1996) (discussing the safety valve’s legislative history and explaining that Congress intended to remedy the former system, under which higher-level drug offenders with information to trade often fared better than less culpable offenders because courts could impose a sentence below the statutory minimum only when the Government filed a motion based on substantial assistance). A sentencing court “shall” apply the safety valve provision for any defendant who meets five criteria: (1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a) (emphasis added). The only question before us on appeal is whether the district court correctly determined that Mr. Montes did not satisfy the fifth criteria. The defendant bears the burden of proving by a preponderance of evidence his" } ]

[ { "docid": "12556154", "title": "", "text": "north thereof. This is all Adirondack’s previous practice has been. But the new certificate will permit it to inaugurate short-haul and commuter operations without any finding of public need for such service or any inadequacy in existing facilities. And the statement that Hudson’s fears are conjectural and unsupported by the evidence is not sustainable. The evidence shows without contradiction that if such service should be inaugurated in competition with Hudson’s service of that type, neither carrier would find it profitable. The Commission has frequently held that under § 207 of the Act, 49 U.S.C. A. § 307, there must be an affirmative showing not only that a common carrier service is required in the convenience of the public but also that it is a necessity, and that the latter element includes a showing that present facilities are inadequate. Pan-American Bus Lines, Operation, 1 M.C.C. 190, 203; Bluenose Bus Co. Ltd., Common Carrier Application, 1 M.C.C. 173, 176; Richard L. Richards, Extension of Operations, 6 M.C.C. 80, 81; Ohio Transportation Co., Common Carrier Application, 29 M.C.C. 513, 520; Royal Cadillac Service, Inc., Common Carrier Application, 43 M.C.C. 247, 259. The courts, too, have recognized inadequacy of existing facilities as a basic ingredient in the detemination of public “necessity”. Inland Motor Freight v. United States, D.C.E.D.Wash. 60 F.Supp. 520, 524. See also Interstate Commerce Commission v. Parker, 326 U.S. 60, 69, 70, 74, 65 S.Ct. 1490, 89 L.Ed. 2051 and dissenting opinion of Mr. Justice Douglas. This does not mean that the holder of a certificate is entitled to immunity from competition under any and all circumstances. Chesapeake & O. R. Co. v. United States, 283 U.S. 35, 51 S.Ct. 337, 75 L.Ed. 824. The introduction of a competitive service may be in the public interest where it will secure the benefits of an improved service without being unduly prejudicial to the existing service. Interstate Commerce Commission v. Parker, supra. No such finding has here been-made, nor is there any evidence to support such a finding. It is true that evidence of past operations under color of right may be taken into" } ]

[ { "docid": "18724353", "title": "", "text": "find an applicant’s proposed service is or will be required by that standard. Shortly after passage of the Motor Carrier Act, the ICC summarized the question which must be resolved in each case as being the factual determination of “whether the new operation or service will serve a useful public purpose, responsive to a public demand or need; whether this purpose can and will be served as well by existing lines or carriers; and whether it can be served by applicant with the new operation or service proposed without endangering or impairing the operation of existing carriers contrary to the public interest.” Pan American Bus Lines Operation, 1 M.C.C. 190, 203 (1936). The ICC is the arbiter of the facts in each case, e. g. ICC v. Parker Motor Freight, 326 U.S. 60, 65, 65 S.Ct. 1490, 89 L.Ed. 2051 (1945), and a basic ingredient considered in determining “public convenience and necessity” is the question of whether existing facilities and service are adequate for public convenience and need. Newton Trucking Co. v. United States, 264 F.Supp. 869, 884 (D.Del.1967), aff’d. 389 U.S. 30, 88 S.Ct. 108, 19 L.Ed.2d 29 (1967); Curtis, Inc. v. United States, 225 F.Supp. 894, 898 (D.Col.1964), aff’d. 378 U.S. 128, 84 S.Ct. 1658, 12 L.Ed.2d 744 (1964). Of course, the applicant has the burden of proving that the proposed service is required by the public convenience and necessity. E. g. Newton Trucking Co. v. United States, supra. Lemmon’s assertion that the ICC did not properly apply the “follow the traffic” doctrine is without merit. “Follow the traffic” is but one element of the circumstances which the ICC must weigh in deciding whether the approval of an application is required by public convenience and necessity, and it alone should not be the ground for granting authority. Petroleum Carrier Corp. v. United States, 258 F.Supp. 611, 615 (M.D.Fla.1966); Smith and Solomon Trucking Co. v. United States, 120 F.Supp. 277, 279-80 (D.New Jersey 1954). The ICC report correctly recognized the essence of Lemmon’s application as seeking to “follow the traffic,” and it is implicit in that recognition that the" }, { "docid": "21900845", "title": "", "text": "and the effect of a grant on existing services, see Roadway Exp., Ext.-Birmingham, Dallas, Houston, 82 M.C.C. 689, 703 (1960). Commission Decision at 2, reprinted in J.A. at 55. The supporting shippers demonstrated the need for Younger’s services; Younger’s performance under temporary authority indicated its ability to meet that need. Such evidence alone is not dispositive, but it certainly is a relevant consideration that the Commission may properly take into account. B. Refusal to Take Official Notice Truck next contends that the Commission in the Younger proceeding should have taken official notice of other Commission decisions and portions of other Commission records. The decisions concerned several applications by other carriers for authority to ship alcohol from Laredo, and the records dealt with testimony about carrier service already offered from that point. According to Truck, these decisions and records would have established that existing service from Laredo was adequate and would thus have required the Commission to deny Younger’s request.. Regarding the records, we believe that Truck’s failure to follow the regulations of the Commission justified its denial of Truck’s request. Under Commission rules, anyone wishing to present evidence from a portion of the record of another proceeding must offer a “true copy of such portion ... in the form of an exhibit.” 49 C.F.R. § 1100.80 (1979). Rather than comply with this provision, Truck merely cited the evidence from the other records in its exceptions to. the ALJ’s report and requested the Commission to notice it officially. To receive official consideration, however, Truck must follow Commission procedures. See Howard H. Kropf Extension-Cinders, 76 M.C.C. 103, 105 (1958). As for the other Commission decisions, we agree with Truck that the Commission might have taken official notice of its rulings in Indian River Transport Co., MC-109709 (Sub.-Nos. 74 and 76) (ICC Rev.Bd. 4, June 30, 1978) and Ayérs and Maddux, Inc., MC-129262 (Sub.-No. 3) (ICC Rev.Bd. 3, Aug. 1, 1978). In these cases, the Commission had approved authority for the shipment of liquor from Laredo to several of Hiram Walker’s facilities. Truck believed this evidence would rebut any inference that it had" }, { "docid": "2628361", "title": "", "text": "record contains some conflicting evidence, all the important basic findings made by the Commission are supported by substantial evidence on the whole record. One finding appears to be without substantial support, but we have not the slightest reason to infer that without this finding the Commission’s ultimate conclusion would have been any different. Even without this one questionable finding we would uphold the order of the Commission. It would be judicial administration amounting to nothing more than “marching the king’s men up the hill and then marching them down again”, to set aside the order of the Commission for this reason. See Bethlehem Shipbuilding Corp., Ltd. v. National Labor Relations Board, 1 Cir., 1940, 114 F.2d 930, 935, quoting N. L. R. B. v. Newport News Shipbuilding & Dry Dock Co., 1939, 308 U.S. 241, 247, 60 S.Ct. 203, 84 L.Ed. 219. A judgment will be entered dismissing the complaint. . Harry D. Zabarsky et al. — Control; St. Johnsbury Trucking Company, Inc.— Purchase — Hinsch Transportation Co., Inc., 60 M.C.C. 129 (1954), modifying 59 M.C.C. 747 (1954), reversing 59 M.C.C. 419 (1953). . The precise statutory language is, “If the Commission finds that, subject to such terms and conditions and such modifications as it shall find to be just and reasonable * * * it shall enter an order approving and authorizing such transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable * * . Section 5(2) (b) provides that if a railroad is an applicant for acquisition of a motor carrier, the Commission must find not only consistency with the public interest but also that the acquisition will enable the railroad “to use service by motor vehicle to public advantage in its operations and will not unduly restrain competition.” AVhere application is made for a new motor carrier certificate, the Commission must find the applicant “fit, willing, and able” and that the proposed service “is or will be required by the present or future public convenience and necessity * * Section 207, 49 U.S.C.A. § 307. .... . The distinction" }, { "docid": "12473541", "title": "", "text": "of the complexities of this transportation service, a process requiring the exercise of expert, empirical judgment, the Commission transgressed in imposing such geographical restrictions.” Finally, Newton requests authority to transport the frozen foods involved between the New England states of Maine, Massachusetts, and Connecticut and the Southeastern states of North Carolina, South Carolina, Georgia, and Florida. As Newton submitted no evidence whatsoever of shipments between these states, nor sufficient evidence of other pertinent factors, the Commission correctly denied any grant of “grandfather” authority for such transportation. Our ultimate conclusion, then, is that the Commission’s grant of “grandfather” authority to Newton may not be disturbed. We now consider whether additional rights should have been conferred in the extension proceedings. Newton asserts in its third argument that the Commission erred in denying in its entirety the “extension” application under 49 U.S.C.A. § 307(a). For a motor carrier to be granted relief under this section, it must bear the burden of demonstrating that the present or future public convenience and necessity will be served by the services sought. Newton has failed to meet this burden. A basic ingredient in the determination of public convenience and necessity is whether the existing facilities are adequate to meet the present or future transportation requirements. Curtis, Inc. v. United States, 225 F.Supp. 894 (D.C.Colo.1964), aff’d mem., 378 U.S. 128, 84 S.Ct. 1658, 12 L.Ed.2d 744 (1964). On this vital issue the Commission found (98 M.C.C. 702, 709): “[A]pplicant has failed to demonstrate with any reasonable degree of specificity that the service afforded by existing carriers is inadequate. Indeed, existing regular — and irregular —route common carriers provide direct service for the transportation of frozen foods at virtually all points in the Middle Atlantic States and offer interline arrangements for movements between southern and New England states, and shippers admit their satisfaction with these services to the extent authorized.” The record amply supports the accuracy of the Commission’s finding that there exists direct service and interline arrangements throughout the areas involved. Nonetheless, Newton attacks the Commission’s finding as to the adequacy of that service. It asserts that the" }, { "docid": "7194578", "title": "", "text": "safe, and competitive privately owned motor carrier system; (H) promote greater participation by minorities in the motor carrier system; and (I) promote intermodal transportation 49 U.S.C. § 10101(a)(2) (West Supp.1983). . Appendix C to Ex Parte 55 (Sub-No. 43), 45 Fed.Reg. 86795-97 (December 31, 1980), graphically shows median time for completion of the application process as 327.5 days for the existing modified procedure (no oral hearing) and 378 days where oral hearing was held. . Since enactment of the Motor Carrier Act of 1935, the controlling statutory standard for all motor common carrier applications has been that the proposed service “be required by the present or future public convenience and necessity.” See former 49 U.S.C. § 10922(a)(2). With the statutory standard clearly enunciated, the Commission was entrusted with shaping the scope of what was “publicly convenient and necessary,” and applying the definition to applications for operating authority. During the infancy of motor carrier regulation, the Commission set forth its standard for determining “public convenience and necessi ty” in Pan-American Bus Lines Operation, 1 M.C.C. 190, 203 (1936): The question, in substance, is [i] whether the new operation or service will serve a useful public purpose, responsive to a public demand or need; [ii] whether this purpose can and will be served as well by existing lines or carriers; and [iii] whether it can be served by applicant with the new operation of service proposed without endangering or impairing the operations of existing carriers contrary to the public interest. (Brackets inserted for ease of reference) Allegiance to the Pan-American criteria was long lived. It was not until 1978 that the Commission re-evaluated its historic approach and refined the Pan-American criteria. See Liberty Trucking Co., Extension — General Commodities, 130 M.C.C. 243 (1978), aff’d, 131 M.C.C. 573 (1979), aff'd sub nom. Assure Competitive Transportation, Inc. v. United States, 629 F.2d 467 (7th Cir.1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 941, 67 L.Ed.2d 110 (1981). Under the Commission’s decision in Liberty, once the applicant demonstrated a need for the new service, the burden was on the protestants to prove material harm sufficient" }, { "docid": "5495533", "title": "", "text": "plaintiff’s services was given due consideration. The contention of the plaintiff in the Application Case No. MC-103926 (Sub-No. 9) that the Commission is required to consider plaintiff’s past unauthorized operations as evidence of public convenience and necessity is without merit. The law is settled that unauthorized operations are not sufficient to establish a public need for a service in the absence of compelling reasons to the contrary. Floyd & Beasley Transfer Co. v. United States, supra; A. B. C. Freight Forwarding Co. v. United States, D.C., 125 F.Supp. 926, aff. 348 U.S. 967, 75 S.Ct. 531, 99 L.Ed. 753. In effect, plaintiff’s complaint is that the Commission abused its discretion and unlawfully administered the statute in not giving controlling weight to evidence of its past operations. As the Supreme Court pointed out in American Trucking Association v. United States, 344 U.S. 298, 312-313, 73 S.Ct. 307, 97 L.Ed. 337 (1953), the Congressional purpose in requiring authorization for all interstate for-hire motor carriers was to preserve the motor carrier transportation system from the overcompetition which has contributed to its instability. The Supreme Court has repeatedly expressed the view that “the Commission possesses a ‘wide range of discretionary authority’ ” in determining whether the public interest warrants certification of any particular proposed service. Schaf-fer Transportation Co. v. United States, 355 U.S. 83, 78 S.Ct. 173, 2 L.Ed.2d 117 (1957). The factors which the Commission weighed are adequately specified in its Report in No. MC-103926 (Sub-No. 9). The Commission could have properly concluded that no need had been shown for the proposed service which could not be met by the existing authorized carriers. The order of the Commission in the Interpretations Case (No. MC-103926 (Sub-No. 8)) is set aside and the case is remanded to the Interstate Commerce Commission with instructions that the Commission shall take such action as it shall deem proper and in accord with this Opinion. . Superior Trucking Company, Inc. . Heavy Specialized Carriers Conference. . Appendix “O” to the Complaint. . Quote from printed Commission Report attached as Appendix “B” to the Complaint, 83 M.C.C. 694, at 698." }, { "docid": "876994", "title": "", "text": "dormancy concept were expressed quite well by the ICC itself in the case of King’s Van and Storage, Inc.-Purchase-Millard, 75 M.C.C. 582 at 584-5 (1958) where it was held that: “The transfer of dormant rights under section 5 may be approved as consistent with the public interest only upon a showing that there is a need for the service which may be established thereunder. See Cooper’s Express, Inc.,-Purchase-Fargo Trans., Inc. 70 M.C.C. 343. Where, as here, the selling carrier’s operating rights are dormant, and no evidence has been adduced which would support a finding that the new service proposed by Vendee would serve any public need or that the shipping public has been without adequate transportation facilities since Vendor discontinued her operations, the fact that protestants are large, well-established, and successful carriers is not significant to a determination of the issues. The reason for the principle expressed in the case just cited is that the shipping public has been deprived of the discontinued transportation service, and other carriers which have been required to expand their carrier facilities in order to take up the vacuum created thereby are entitled to protection as to this ■traffic and the possible adverse effect revitalization of dormant operations may have upon them. See Roadway Express, Inc.-Purchase-Diamond State Motor Frt., Inc., 58 M.C.C. 185.” The “section 5” mentioned above is 49 U.S.C. § 5, the statute involved in this case. The above understanding of the dormancy concept has been restated many times by the ICC, see, e. g., Ryder Truck Lines-Control and Merger-Harris Exp., 104 M.C.C. 328, at 337 (1967), Ruffalo’s Trucking Svc.-Purchase-Worster, 104 M.C.C. 593, at 598 (1968), Moab Truck Center-Purchase-W. R. Hull Transp. and Storage, 101 M.C.C. 557, at 561 (1966), and has been accepted by the federal courts, see, e. g., Arrow Transp. Co. v. United States, 300 F.Supp. 813, at 818 (D.R.I.1969). Dormancy may occur under the following circumstances. A carrier applies for rights over a certain route and the rights are granted. Thereafter, instead of exercising these valuable rights, the carrier allows them to lie “dormant.” He possesses the rights but" }, { "docid": "12473542", "title": "", "text": "Newton has failed to meet this burden. A basic ingredient in the determination of public convenience and necessity is whether the existing facilities are adequate to meet the present or future transportation requirements. Curtis, Inc. v. United States, 225 F.Supp. 894 (D.C.Colo.1964), aff’d mem., 378 U.S. 128, 84 S.Ct. 1658, 12 L.Ed.2d 744 (1964). On this vital issue the Commission found (98 M.C.C. 702, 709): “[A]pplicant has failed to demonstrate with any reasonable degree of specificity that the service afforded by existing carriers is inadequate. Indeed, existing regular — and irregular —route common carriers provide direct service for the transportation of frozen foods at virtually all points in the Middle Atlantic States and offer interline arrangements for movements between southern and New England states, and shippers admit their satisfaction with these services to the extent authorized.” The record amply supports the accuracy of the Commission’s finding that there exists direct service and interline arrangements throughout the areas involved. Nonetheless, Newton attacks the Commission’s finding as to the adequacy of that service. It asserts that the service of “existing carriers” which the Commission found to be adequate included Newton’s own service and for this reason the finding is unsupported under Nashua Motor Express, Inc. v. United States, 230 F.Supp. 646, 653 (D.C.N.H. 1964). However, evidence before the Commission, which included the protestants’ operating authorities and testimony as to the satisfactory nature of the services of motor carriers other than Newton, fully justified its conclusion that the existing service was adequate and satisfactory. Nevertheless, Newton points out that when the shippers expressed their satisfaction with the existing service, exclusive of Newton’s, they were careful to limit their approval to the services performed within the scope of the carriers' authorities. Transportation beyond the reach of the authority of a given motor carrier necessitated resort to joint-line transportation, i. e., the use of two or more inter-connecting carriers. Since the shippers with virtual unanimity expressed a preference for straight line rather than joint-line service for the transportation of frozen foods, Newton contends that the service offered by the other carriers was not satisfactory to" }, { "docid": "18724354", "title": "", "text": "F.Supp. 869, 884 (D.Del.1967), aff’d. 389 U.S. 30, 88 S.Ct. 108, 19 L.Ed.2d 29 (1967); Curtis, Inc. v. United States, 225 F.Supp. 894, 898 (D.Col.1964), aff’d. 378 U.S. 128, 84 S.Ct. 1658, 12 L.Ed.2d 744 (1964). Of course, the applicant has the burden of proving that the proposed service is required by the public convenience and necessity. E. g. Newton Trucking Co. v. United States, supra. Lemmon’s assertion that the ICC did not properly apply the “follow the traffic” doctrine is without merit. “Follow the traffic” is but one element of the circumstances which the ICC must weigh in deciding whether the approval of an application is required by public convenience and necessity, and it alone should not be the ground for granting authority. Petroleum Carrier Corp. v. United States, 258 F.Supp. 611, 615 (M.D.Fla.1966); Smith and Solomon Trucking Co. v. United States, 120 F.Supp. 277, 279-80 (D.New Jersey 1954). The ICC report correctly recognized the essence of Lemmon’s application as seeking to “follow the traffic,” and it is implicit in that recognition that the “follow the traffic” aspect was considered by the ICC, along with the other facts and circumstances, in reaching its decision. Lemmon has presented little evidence showing that existing carriers were not giving adequate service in the area. There were statements from three of Olin’s consignees indicating a preference for Lemmon’s services, but there was no assertion that other carriers could not serve their needs. Also in evidence was a statement from an Olin representative that on three occasions, one of which was during a rail strike, Chemical Leaman had been unable to provide sufficient service. While it is true that inadequacy of present service is not a necessary finding as a prerequisite to the issuance of a certificate, just as the “follow the traffic” doctrine is not a controlling element, it is to be considered along with all the related factors, such as the desirability of' competition, desirability of different kinds of service, and the desirability of improved service. See Nashua Motor Express, Inc. v. United States, 230 F.Supp. 646, 652-53 (D.N.H.1964), for a good" }, { "docid": "23685059", "title": "", "text": "LAY, Circuit Judge. Warren Transport, Inc. brings this petition for review of a final Interstate Commerce Commission order denying it a certificate of public convenience and necessity for operating authority as a common carrier over irregular routes transporting highway construction equipment and supplies between various points in the United States and Beadle County, South Dakota. The Commission found that petitioner already holds extensive authority to serve the shipper, Huron Manufacturing Corporation, by transporting the various commodities either by tacking or interlining. However, Warren seeks complete direct authority to serve the shipper. The Review Board denied the application in full based on its finding that Warren’s existing service was not materially inadequate and that the supporting shipper, Huron, had failed to adequately demonstrate specific transportation needs. The Commission affirmed the findings of the Review Board. Warren urges that the Commission erred in (1) basing the denial on a failure to show that Warren’s own service was inadequate, and (2) finding that the need for the proposed service was not adequately demonstrated by the supporting shipper. We disagree and therefore affirm the Commission’s denial of the certificate. The inadequacy of existing service .is one of several elements on which the Commission may base its exercise of discretion in granting a certificate of public convenience and necessity. As stated in Feature Film Service, Inc. v. United States, 349 F.Supp. 191 (S.D.Ind. 1972): The adequacy or inadequacy of existing service is a basic ingredient in the determination of «public convenience and necessity, but it is not and may not be used as the sole test in determining whether public convenience and necessity exist. Successful past operations of the applicant, along with other factors, are also entitled to consideration in determining public need. 349 F.Supp. at 201. In addition to finding that the existing service was adequate, the Commission expressly considered the total lack of evidence by the supporting shipper as to its need for the proposed service. There exists substantial evidence on the record as a whole to support the Commission’s finding. In Pan-American Bus Lines Operation, 1 M.C.C. 190 (1936), the Commission promulgated" }, { "docid": "21900844", "title": "", "text": "Commission grants temporary authority to meet the immediate needs of an area deprived of carrier service. See 49 U.S.C. § 10928 (Supp. II 1978). A different statute and different criteria control the Commission’s consideration of an application for permanent authority. See id. § 10922(a). The applicant for permanent authority must be “fit, willing, and able” to provide the requested transportation, and the desired authority must meet “the present or future public convenience and necessity.” Id. Under this statutory scheme, the existence of temporary authority by itself is not probative of a carrier’s fitness to receive a permanent grant. Performance under that temporary authority, however, gives the Commission valuable evidence of a carrier’s fitness and ability to perform. In its decision in the present ease, the Commission properly stated the value of this form of evidence: [Wjhile temporary authority operations create no presumption that corresponding permanent authority should be granted, evidence of such operations may be considered relative to such factors as the volume of the traffic involved, the ability of applicant to provide the service, and the effect of a grant on existing services, see Roadway Exp., Ext.-Birmingham, Dallas, Houston, 82 M.C.C. 689, 703 (1960). Commission Decision at 2, reprinted in J.A. at 55. The supporting shippers demonstrated the need for Younger’s services; Younger’s performance under temporary authority indicated its ability to meet that need. Such evidence alone is not dispositive, but it certainly is a relevant consideration that the Commission may properly take into account. B. Refusal to Take Official Notice Truck next contends that the Commission in the Younger proceeding should have taken official notice of other Commission decisions and portions of other Commission records. The decisions concerned several applications by other carriers for authority to ship alcohol from Laredo, and the records dealt with testimony about carrier service already offered from that point. According to Truck, these decisions and records would have established that existing service from Laredo was adequate and would thus have required the Commission to deny Younger’s request.. Regarding the records, we believe that Truck’s failure to follow the regulations of the Commission justified" }, { "docid": "5396237", "title": "", "text": "In this circuit a petition for review of a Commission’s order will be denied on a summary basis when the order is based on the evidence and supported by a rational judgment of the Commission, (emphasis supplied). Warren Transport, Inc. v. United States, supra at 151, quoted in B. J. McAdams, Inc. v. ICC, supra at 1116, Midwest Coast Transport, Inc. v. ICC, supra at 259, and Hilt Truck Line, Inc. v. United States, supra at 1201. Under § 207(a) of the Interstate Commerce Act, the Commission cannot grant operating authority unless it has determined that a proposed service “is or will be a required by the present or future public convenience and necessity.” 49 U.S.C. § 307(a). In making that determination, the Commission must decide: (1) whether the new operation or service will serve a useful public purpose, responsive to a public demand or need; (2) whether this purpose can and would be served as well by existing lines or carriers; (3) whether this purpose can be served by the applicant with the new operation or service proposed without impairing the operations of existing carriers contrary to the public interest. See Pan-American Bus Lines Operation, 1 M.C.C. 190, 203 (1936); Midwest Coast Transport, Inc. v. ICC, supra at 259-60. In addition, an applicant must show: (a) the commodities to be shipped; (b) the points to or from which commodities are to be shipped; (c) the volume of freight to be tendered; (d) the transportation services presently available; (e) any deficiencies in existing services. Id. at 260. The case at bar involves future needs. In such cases, the Interstate Commerce Commission’s application of the above criteria inevitably depends to some extent on speculations, projections, and prophecies. But, as the Supreme Court has stated: [Uncertainties as to the future . need [not] paralyze the Commission into inaction. It may be that the public interest requires that future shipping needs be assured rather than left uncertain. The Commission has the discretion so to decide. United States v. Detroit & Cleveland Navigation Co., 326 U.S. 236, 241, 66 S.Ct. 75, 77, 90 L.Ed.2d" }, { "docid": "2918786", "title": "", "text": "Transportation Co. v. United States, D.C.N.D.Cal., 54 F.Supp. 448, 450, 451. Turning to the merits, objection is futile that the Commission erred in taking past operations into consideration in determining the present or future public convenience and necessity of the applicant’s operations. The Commission has held, in persuasive opinions, that, where past operations have been conducted under color of “grandfather” rights, openly and without subterfuge, as was surely the case here, they are competent evidence on the issue of public convenience and necessity. D. A. Beard Truck Lines Co., Common Carrier Application—New Operation, 34 M.C.C. 395; Hoover Motor Express Co., Inc., Extension of Operations—Intermediate Points, 42 M.C.C. 315, 332; Fisher Common Carrier Application—New Operation, 42 M.C.C. 695, 696, 697; Trans-American Van Service, Inc., Common Carrier Application; No. MC-22254, decided January 22, 1944, 43 M.C.C.-. And since the issue under this section is not as to “grandfather rights,” but as to public demand or need, or how much the applicant’s service is required and used by the public, it is not a bar to admissibility of such evidence that the past operations may have been conducted in violation of state law, as the operations from April to June, 1935, by the brothers Jacobs very likely were. Ibid. Certainly with this evidence the Commission’s finding of public convenience and necessity was amply justified by the evidence; and the Commission, of course, with its expert judgment in this field, is the trier of facts. United States v. Pan-American Petroleum Corp., 304 U.S. 156, 158, 58 S.Ct. 771, 82 L.Ed. 1262; Merchants’ Warehouse Co. v. United States, 283 U.S. 501, 508, 51 S.Ct. 505, 75 L.Ed. 1227; Alton R. Co. v. United States, 315 U.S. 15, 23, 62 S.Ct. 432, 86 L.Ed. 586; United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 482, 62 S.Ct. 722, 86 L.Ed. 971. As the Commission stated in Dougherty Storage & Van Co. Common Carrier Application, 3 M.C.C. 427, 432, “Successful operation in the past creates a presumption that public convenience and necessity require a continuance of such operation.” See also Black & White Express Contract Carrier" }, { "docid": "21900856", "title": "", "text": "on tequila moving in the service of a Mexican carrier from origin to Nue-vo Laredo (Republic of Mexico) and a carrier identified as Ayers & Maddux . ... Apparently the same service is authorized on kahlua but it is not a practical route. ALJ Decision at 5, reprinted in J.A. at 6. . As this court stated in May Trucking, “[w]hat is legally required is shaped, of course, by the particular factual context, and the basic question ... is still whether an inference of similarity throughout the area embraced by [the applicant’s] certificate could rationally be drawn from the evidence presented.” May Trucking Co. v. United States, 593 F.2d 1349, 1353 n.19 (D.C. Cir. 1979). In this case, we believe the Commission reasonably could find that the evidence justified the inference and the grant. See text. . See note 4 and accompanying text supra. The Commission noted in its decision that at the time of the hearing Truck Transport was operating under temporary authority to lease the operating rights of Drum Transport pending the determination of Truck Transport’s application for authority to purchase those operating rights. No permanent authority for serving the shippers had been vested in Truck Transport as of that time. Younger Brothers, Inc., No. MC-531 (Sub.-No. 351), at 3 (ICC Div. 1, Mar. 19, 1979), reprinted in J.A. at 54, 56. .On this question of competition, another court of appeals has stated: [L]osses that competing carriers may suffer if a particular competitor is permitted to of fer a new service or to expand an existing one must be balanced against the public interest in having the new or expanded service provided, and we think that the balancing function is one that is peculiarly within the competency of the Commission. Midwest Coast Transport, Inc. v. ICC, 536 F.2d 256, 260 (8th Cir. 1976). . Granting additional authority over existing routes is clearly permissible. See United States v. Dixie Highway Express, Inc., 389 U.S. 409, 411-12, 88 SCt. 539, 540-41, 19 L.Ed.2d 639 (1967) (per curiam). . We have considered Truck’s other contentions and find them to be without" }, { "docid": "5495532", "title": "", "text": "United States, 63 F.Supp. 829, 830-831 (N.D.N.C.1945). The Commission acted within the bounds of its administrative discretion in denying the instant application. The Commission’s finding that the plaintiff has failed to establish that the present or future public convenience and necessity require the authority sought is rational, based upon proper standards, and supported by the record. In order to establish that the proposed service is required for the convenience of the public and that it is a public necessity, the plaintiff was required to show that existing facilities are inadequate in that existing authorized carriers are not ready, willing, and able to perform the service. Dance Freight Lines v. United States, 149 F.Supp. 367, at 372 (E.D.Ky.1957); McLean Trucking Co. v. United States, supra. As the Commission found, the geographical area concerned has available to serve it an ample supply of duly authorized carriers ready, willing, and able to provide the shippers with the type of transportation services here involved. The record indicates that the testimony of the supporting shippers and others who use the plaintiff’s services was given due consideration. The contention of the plaintiff in the Application Case No. MC-103926 (Sub-No. 9) that the Commission is required to consider plaintiff’s past unauthorized operations as evidence of public convenience and necessity is without merit. The law is settled that unauthorized operations are not sufficient to establish a public need for a service in the absence of compelling reasons to the contrary. Floyd & Beasley Transfer Co. v. United States, supra; A. B. C. Freight Forwarding Co. v. United States, D.C., 125 F.Supp. 926, aff. 348 U.S. 967, 75 S.Ct. 531, 99 L.Ed. 753. In effect, plaintiff’s complaint is that the Commission abused its discretion and unlawfully administered the statute in not giving controlling weight to evidence of its past operations. As the Supreme Court pointed out in American Trucking Association v. United States, 344 U.S. 298, 312-313, 73 S.Ct. 307, 97 L.Ed. 337 (1953), the Congressional purpose in requiring authorization for all interstate for-hire motor carriers was to preserve the motor carrier transportation system from the overcompetition which has" }, { "docid": "11604405", "title": "", "text": "is impossible to state, outside the context of a particular case, the relative weight to be given different factors, and the Commission cannot arbitrarily assign a great or absolute value to the issue of inadequacy of existing service. It is possible that public convenience and necessity might require the issuance of a certificate even though no finding were made as to inadequacy of service and even though existing carriers might arrange to furnish the proposed services. Dixie Highway Express, supra, 389 U.S. at 411-412, 88 S.Ct. 539; Parker, supra, 326 U.S. at 69-70, 65 S.Ct. 1490. There is a substantial line of eases setting forth the platitude that a showing of inadequacy of existing services is a “basic ingredient” to a favorable determination of public convenience and necessity. E. g., Warren Transport, supra, 525 F.2d at 149; Lemmon Transport, supra, 393 F.Supp. at 841-842; Feature Film Service, supra, 349 F.Supp. at 201; Lester C. Newton Trucking Co. v. United States, 264 F.Supp. 869, 885 (D.Del.1969), aff’d per curiam, 389 U.S. 30, 88 S.Ct. 108, 19 L.Ed.2d 29 (1967); Zuzich Truck Lines, Inc. v. United States, 224 F.Supp. 457, 468 (D.Kan.1963). Most of these cases rely on the Pan American criteria and note that even though inadequacy of service is a “basic ingredient,” it is not the sole test. To the extent that the term “basic ingredient” denotes that the question of adequacy of existing service is a possibly important factor to consider, this line of cases is certainly correct. But if these cases are interpreted to mean that the question of the adequacy of existing service is abstractly entitled to inordinately great weight in determining public convenience and necessity, then their reasoning must be rejected. The majority of cases holding that a showing of inadequacy of existing services is a necessary or inordinately important factor in establishing public convenience and necessity can be distinguished on their facts. Where an applicant’s proposed service is in no way unique or different from that of existing carriers, the entire basis of his application is inadequacy, and that obviously becomes the controlling issue. The" }, { "docid": "11604417", "title": "", "text": "high as to constitute an embargo against the traffic. See American Trucking Ass’n v. United States, 326 U.S. 77, 86-87, 65 S.Ct. 1499, 89 L.Ed. 2065 (1945); Auclair Transportation Inc. v. United States, 221 F.Supp. 328, 333-334 (D.Mass. 1963), aff’d per curiam, 376 U.S. 514, 84 S.Ct. 966, 11 L.Ed.2d 968 (1964). The Supreme Court, however, has differentiated those cases where a carrier seeks to provide service to an area already served by basically the same type of transportation, only at a lower rate. . Those decisions are entirely different from the situation presented here, where a motor carrier seeks to compete for traffic now handled exclusively by rail service. In these circumstances a rate benefit attributable to differences between the two modes of transportation is an “inherent advantage” of the competing type of carrier and cannot be ignored by the Commission. Schaffer Transportation, supra, 355 U.S. at 92, 78 S.Ct. at 178. The analogy between “modes” of service and different kinds of the same mode of service would again appear to be direct. The Commission should not oversimplify the competing congressional aims “to promote safe, adequate, economical, and efficient service” and yet avoid “unfair or destructive competitive practices” by adopting a hard and fast rule that ignores any consideration of rate structures. If lower rates are an additional inherent advantage of a proposed different or improved service, they would appear to be a relevant factor for the Commission to consider in reaching ultimate findings concerning competition and the sound economic condition of the industry. E. Future Needs Another factor the Commission must always consider is the future needs of the public and commerce. Union Mechling, supra, 390 F.Supp. at 401; Younger Bros., supra, 289 F.Supp. at 547-548; Lester C. Newton Trucking, supra, 264 F.Supp. at 885. The Interstate Commerce Act, 49 U.S.C. § 307(a), requires the Commission to grant a certificate when it “is or will be required by the present or future public convenience and necessity.” Indeed, the Commission must consider future needs and changes in commerce even when they are uncertain. Union Mechling, supra, 390 F.Supp. at" }, { "docid": "7483751", "title": "", "text": "in the United States is transporting goods into New York. The simple response to this contention is that the language of the section is not so limited. Cf. Verbeem v. United States, 154 F.Supp. 431, 433 (E.D.Mich.1957), aff’d per curiam sub. nom., Amlin v. Verbeem, 356 U.S. 676, 78 S.Ct. 1006, 2 L.Ed.2d 1072 (1958). Such a construction would obviously reduce Commission supervision of improper extension of interstate operating authority precisely in those situations in which it is most likely to occur. Cf. United States v. Marshall Transp. Co., 322 U.S. 31, 64 S.Ct. 899, 88 L.Ed. 1110 (1944). Both the language of section 206(a) (7) (A) and its legislative history fail to support the distinction plaintiff urges. Moreover, plaintiff’s reliance on other Commission opinions is misplaced; they establish only that the term “carrier” in the former second proviso and under the relevant 1962 amendments means “motor” carrier, see Security Transp. Co.—Purchase —Security Truck Line, 93 M.C.C. 385 (1963); Monon Transp. Corp. Common Carrier Registration Application, 44 M.C.C. 325 (1945), and that the carriage must be of a regular commercial nature. See Howard’s Express, Inc.— Purchase—Exchange Trucking Corp., 97 M.C.C. 341 (1965) (mail); Peters Common Carrier Application, 73 M.C.C. 331 (1957) (exempt agricultural commodities). In fact, in one prior case involving similar facts, the Commission stated that second proviso operations were improper. See Fess Transp. Ltd., Common Carrier Application, 86 M.C.C. 625, 630 (1961) (dictum), modified on other grounds, 91 M.C.C. 924 (1963). And a related question has also been decided consistently; a second proviso carrier cannot transport goods into a foreign country because the second proviso limits operations to a single state. See Thomas Goodfellow, Inc., Common Carrier Application, 68 M.C.C. 672 (1956); Southwestern Motor Transp., Inc., Extension — Additional Routes, 61 M.C.C. 1 (1952). We conclude that since Scobie’s operates in foreign commerce between New York and Canada, it is a carrier under the Act, and since its operations in Canada are clearly outside New York, the Commission correctly held that Scobie’s was a “carrier engaged in operations outside” New York. Accordingly, if there was a common control" }, { "docid": "23505966", "title": "", "text": "Commission intended the narrower customary interpretation we have just described. This being the case, we understand the Commission to have thereby enunciated a rule of law to the effect that a showing of inadequacy of the present service of protestants is an element indispensable to the ultimate finding of public convenience and necessity of proposed (or existing) service. While there is some authority for this view, e. g., Hudson Transit Lines, Inc. v. United States, 82 F.Supp. 153 (D.C. S.D.N.Y.1948), aff’d 338 U.S. 802, 70 S.Ct. 59, 94 L.Ed. 485 (1949), we feel that the better rule is embodied in the more numerous cases to the contrary. It has been held repeatedly that in issuing a certificate of public convenience and necessity, the I.C.C. need not make a specific finding that present service is inadequate.. Sloan’s Moving & Storage Co. v. United States, 208 F. Supp. 567 (D.C.E.D.Mo.1962); Convoy Co. v. United States, 200 F.Supp. 10 (D.C.Or.1961); Burlington Truck Lines, Inc. v. I.C.C., 194 F.Supp. 31 (D.C.S.D. Ill.1961), rev’d on other grounds, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); Associated Transports, Inc. v. United States, 169 F.Supp. 769 (D.C. E.D.Mo.1958); Dance Freight Lines, Inc. v. United States, 149 F.Supp. 367 (D.C.E.D.Ky.1957); Southern Kansas Greyhound Lines, Inc. v. United States, 134 F.Supp. 502 (D.C.W.D.Mo.1955) ; St. Johnsbury Trucking Co. v. United States, 99 F.Supp. 977 (D.C.Vt.1951) ; Norfolk Southern Bus Corp. v. United States, 96 F. Supp. 756 (D.C.E.D.Va.1950), aff’d, 340 U.S. 802, 71 S.Ct. 68, 95 L.Ed. 590 (1950); C. E. Hall & Sons, Inc. v. United States, 88 F.Supp. 596 (D.C.Mass.1950); Lang Transp. Corp. v. United States, 75 F.Supp. 915 (D.C.S.D.Calif.1948) ; A. B. & C. Motor Transp. Co. v. United States, 69 F.Supp. 166 (D.C.Mass.1946). The converse of this proposition is that the absence of a finding of inadequacy is not alone sufficient to bar the issuance of a certificate when other factors justify a finding of public convenience and necessity. The element of inadequacy is thus not a controlling one, but is to be considered along with the other factors mentioned above. Even apart" }, { "docid": "17152536", "title": "", "text": "properly balanced the various competing interests. I. We recognize that the Commission has broad discretion in making its motor carrier licensing decisions. See Appleyard’s. Motor Transportation Co. v. ICC, 592 F.2d 8, 9-10 (1st Cir. 1979). That discretion is bounded, however, by the requirements that the Commission properly follow statutory standards and consider all relevant factors. See, e. g., Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); Schaffer Transportation Co. v. United States, 355 U.S. 83, 87-92, 78 S.Ct. 173, 2 L.Ed.2d 117 (1957). One of the Commission’s statutory duties in regard to granting a certificate for motor carrier service is to determine whether “the transportation to be provided under the certificate is or will be required by the present or future public convenience and necessity.” 49 U.S.C. § 10922(a)(2). The Commission also is guided by the national transportation policy, which seeks to develop and preserve adequate and efficient service. See 49 U.S.C. § 10101. Although these statutory standards are general, the Commission very early attempted to articulate certain criteria to be considered in licensing cases: [1] Whether the new operation or service will serve a useful public purpose, responsive to a public demand or need; [2] whether this purpose can and will be served as well by existing lines or carriers; and [3] whether the new operation or Service proposed can be served by applicant without endangering or impairing the operations of existing carriers contrary to the public interest. Pan American Bus Lines Operation, 1 M.C.C. 190, 203 (1936). These Pan American criteria have been applied and emphasized to varying degrees, with no one factor controlling. The courts, however, do require the Commission to balance carefully the various competing interests in determining “whether the ‘public convenience and necessity’ would be' served by the entry of new carriers into markets served by [existing carriers],” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 288, 293, 95 S.Ct. 438, 443, 42 L.Ed.2d 447, rehearing denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433 (1974); and, in light of" } ]

[ { "docid": "19929167", "title": "", "text": "character of the Defendant and the nature of the crime, which are important § 3553(a) factors. Defendant was sentenced to 78 months. On February 9, 2006, Pulyer’s counsel filed an Anders brief arguing only that the right to appeal was waived by the agreement to plead guilty. On March 15, 2006, Pulyer submitted a pro se brief in which he argued that: (1) the sentencing guideline enhancements were unconstitutional because they were not proven beyond a reasonable doubt; and (2) his counsel was ineffective. II. Pursuant to Third Circuit Local Appellate Rule 109.2(a), if trial counsel reviews the District Court record and “is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting [.Anders ] brief.” Third Circuit L.A.R. 109.2(a). In considering counsel’s submission, we must examine: (1) “whether counsel adequately fulfilled the rule’s requirements;” and (2) “whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). To satisfy the Anders requirements counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000). The entire thrust of the Anders brief is the erroneous assertion that as part of the plea agreement Pulyer has waived all of his appellate rights. The brief did not address any potential appealable issues on the merits, nor did it explain why such issues are frivolous. Indeed, even the government pointed out that Pulyer did not waive his appellate rights, (Gov. Br. at pp. 11-12), and at sentencing the District Judge specifically advised Defendant of his right to appeal. (App. at p. 65). However, even when an Anders brief is inadequate, we may nevertheless affirm a conviction where the frivolousness of appeal is patent. See Youla, 241 F.3d at 300. We see four possible issues, including the two raised by Pulyer in his pro se brief, and we will consider each in turn. First, the District Court might have" } ]

[ { "docid": "10202294", "title": "", "text": "Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. To the extent that Mitchell’s Rule 59(e) motion to alter or amend the judgment sought to undo the district court’s denial of habeas relief on the merits, it was an unauthorized successive petition that the district court lacked jurisdiction to entertain. See Gonzalez v. Crosby, 545 U.S. 524, 532 & n.4, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); Williams v. Thaler, 602 F.3d 291, 312 (5th Cir. 2010); Crone v. Cockrell, 324 F.3d 833, 836-38 (5th Cir. 2003). To the extent that the Rule 59(e) motion challenged the denial of Mitchell’s due process claim as procedurally defaulted, it was not a successive § 2254 petition, but Mitchell needs a COA to proceed on appeal. See § 2253(c)(1)(B); see also Gonzalez, 545 U.S. at 532 & n.4, 125 S.Ct. 2641; Cardenas v. Thaler, 651 F.3d 442, 443 (5th Cir. 2011). Because we discern no legal points arguable on their merits regarding this aspect of the Rule 59(e) ruling, the attempt to appeal that issue is frivolous, see Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983), and reasonable jurists could not debate whether it is adequate to- deserve encouragement to proceed further, see Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. With respect to these postjudgment rulings, we DISMISS this matter for lack of jurisdiction as remand would be futile. See Alvarez, 210 F.3d at 310. We deny Mitchell’s request for appointment of counsel. See Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985). COA -DENIED IN PART AND DISMISSED IN PART. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "17572752", "title": "", "text": "supported by the record ... ”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under 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.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). m. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned their negligence misrepresentation claim." }, { "docid": "21604962", "title": "", "text": "it in the first instance to the district court and further development of the record. In sum, on remand, the Government is permitted to present additional evidence related to the restitution award for these five victims. See Jones, 616 Fed.Appx. at 729. V. CONCLUSION For the foregoing reasons, we VACATE the restitution order and REMAND the case to the district court for further proceedings consistent with this opinion. The sentence is otherwise AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . In October 2016, while this appeal was pending, the Government filed an opposed motion to supplement the record on appeal with the letter sent by the victims’ counsel. This court granted the motion. This court also denied a motion for reconsideration filed by Jimenez. . Section 3553(b)(2) provides in full: In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless— (i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence greater than that described; (ii) the court finds that there exists a mitigating circumstance of a land or to a degree, that— (I) has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28, taking ac count of any amendments to such sentencing guidelines or policy statements by Congress; (II) has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and (III) should result in a sentence different from that described; or (iii) the court finds, on motion of the Government, that the defendant has provided substantial assistance" }, { "docid": "16170293", "title": "", "text": "under pre-Burlington Northern jurisprudence. Hunt, 277 F.3d at 769. In addition, the record reflects that a four day work week is an alternative schedule that is sometimes offered as a privilege to DSS employees. It is not a right. DSS treated other workers similarly, switching them from a four to five day work week when they were unable to adequately manage their case loads. This action would not have dissuaded a reasonable worker from making or supporting a charge of discrimination. Accordingly, we agree that Lu-shute has not made out a prima facie case of retaliation under FMLA and the district court’s judgment dismissing her claims on summary judgment was correct. This decision could also be justified on the basis of inadequate briefing by the plaintiff. Lu-shute argues only that issues of fact exist as to the defendant’s motivations for changing her work schedule. She makes the assertion that “Defendant admitted that it considered the time she was off from work on leave pursuant to the FMLA as a reason for taking said action.” However, her argument consists entirely of a legal discussion relating to the mixed motive analysis, which authority the district court also cited. Critically, she did not relate the legal discussion to the facts of this case or provide citations to the record to support her assertion of improper motivation. See Fed. R.App. Proc. 28(a)(9)(A). We need not consider inadequately briefed issues. AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "61272", "title": "", "text": "to impute to Officers Larsen (and Mata) the particular allegations against Officer DeLaPaz, citing Grandstaff v. City of Borger, 767 F.2d 161, 168 (5th Cir.1985), does not comport with the heightened pleading standard applicable in cases involving qualified immunity defenses. B. State Law Malicious Prosecution Claim Officers Larsen and Mata assert that any federal cause of action for malicious prosecution by DeLeon is foreclosed by circuit precedent. See Castellano v. Fragozo, 352 F.3d 939 (5th Cir.2003) (en banc). His malicious prosecution claim, however, is founded in state law, to which Castellano is inapplicable. Because the Officers have not briefed state law, we decline to rule on an inadequately briefed issue. CONCLUSION Based on the foregoing discussion, this court REVERSES the district court’s denial of immunity to Officers Larsen and Mata for DeLeon’s false arrest and detention claims, and we REMAND WITH INSTRUCTIONS TO DISMISS these claims. The appeal is DISMISSED insofar as it relates to the Officers’ inadequately briefed challenge to the sufficiency of pleading of DeLeon’s state law claims. REVERSED IN PART, REMANDED IN PART, and DISMISSED IN PART. Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . We take as true the facts alleged by DeLeon’s Complaint, see R. at 86-100. . Although Officers Larsen and Mata do not appear to appeal directly the district court’s denial of their Rule 7(a) motion, the district court should have ordered a Rule 7(a) reply in this case. As we have consistently held, “trial courts ought routinely require plaintiffs to file a reply under [Rule] 7(a) to qualified immunity defenses.” Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.1999). Despite the district court’s error, we need not remand this case for a Rule 7(a) reply as we are convinced, especially after oral argument, that DeLeon has pled his \"best case.” see Morin, 77 F.3d at 121. . Erubiel Cruz, et al. v. Mark DeLaPaz, et al., Civil Action No. 3:02-CV-0649-K, on appeal to this Court in" }, { "docid": "21604961", "title": "", "text": "harm of the ongoing possession and distribution of the images. Cf. Paroline, 134 S.Ct. at 1722 (“Complications may arise in disaggregating losses sustained as a result of the initial physical abuse, but those questions may be set aside for present purposes.”). Several circuit courts have expounded on. this issue post-Paroline. See, e.g., United States v. Galan, 804 F.3d 1287, 1289-91 (9th Cir. 2015) (“[T]he principles set forth by the [Supreme] Court lead to the conclusion that [the defendant] should not be required to pay for losses caused by the original abuser’s actions.”); United States v. Dunn, 777 F.3d 1171, 1181-82 (10th Cir. 2015) (“We think it inconsistent with ‘the bedrock principle that restitution should reflect the consequences of the defendant’s own conduct’ to hold [the defendant] accountable for those harms initially caused by [the victim’s] abuser.” (quoting Paroline, 134 S.Ct. at 1725)); see also United States v. Miner, 617 Fed.Appx. 102, 103 (2d Cir. 2015) (holding that the district court adequately disaggregated the victim’s losses). We have not yet directly addressed this issue and leave it in the first instance to the district court and further development of the record. In sum, on remand, the Government is permitted to present additional evidence related to the restitution award for these five victims. See Jones, 616 Fed.Appx. at 729. V. CONCLUSION For the foregoing reasons, we VACATE the restitution order and REMAND the case to the district court for further proceedings consistent with this opinion. The sentence is otherwise AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . In October 2016, while this appeal was pending, the Government filed an opposed motion to supplement the record on appeal with the letter sent by the victims’ counsel. This court granted the motion. This court also denied a motion for reconsideration filed by Jimenez. . Section 3553(b)(2) provides in full: In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under" }, { "docid": "3017291", "title": "", "text": "that jurists of reason could debate whether the state court’s application of the Supreme Court’s harmless-error test was reasonable. We grant a COA on claim 5. We acknowledge the respondent’s extensive argument that the AEDPA statute of limitations bars this claim. While that would normally bar a COA if true, our inspection of the record reveals that the respondent may have waived this argument in the district court. However, we do not foreclose the issue; more searching review on a merits appeal may reveal that inclination to be incorrect. Y. In sum, we deny a COA on Jones’s claim la of ineffective assistance of trial counsel for failing to raise a Sixth Amendment objection. We grant a COA on Jones’s claim 5 regarding the harmlessness of the admission of a confession obtained in -violation of Miranda. Further, we deny Jones’s motion for reconsideration of our denial of leave to file a separate brief on his § 3599 claim. Jones should brief that claim along with the claim that we grant COA on here. Pursuant to 5th Cm. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cm. R. 47.5.4. . Jones v. State, 119 S.W.3d 766, 770-71 (Tex. Crim. App. 2003). . Id. at 771. . id. . Id. at 771-72. Jones was never charged with these two additional murders, but evidence of them was admitted as relevant to his punishment. Id. . Id. at 770. . Id. . Jones v. Texas, 542 U.S. 905, 124 S.Ct. 2836, 159 L.Ed.2d 270 (2004). . Ex parte Jones, No. WR-57,299-01, 2005 WL 2220030 (Tex. Crim. App. Sept. 14, 2005) (unpublished). . ROA.84-119. . ROA.763-69. . ROA.891-900; Respondent’s Br. 14-15 (ECF 71, 20-21). . ROA. 1223-34; Respondent’s Br. 15 (ECF 71,21). . Jones v. Thaler, 383 Fed.Appx. 380 (5th Cir. 2010) (unpublished) (referencing 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010)); Respondent's Br. 15 (ECF 71, 21). . ROA.1574-1601; Respondent’s Br. 15 (ECF 71, 21). . ROA. 1671-84; Respondent’s Br. 16 (ECF 71, 22)." }, { "docid": "14098567", "title": "", "text": "States v. Cordero, 18 F.3d 1248, 1253 (5th Cir.1994) (citation omitted). After the defendant has had an opportunity to raise any additional points, the court fully examines the record and decides whether any nonfrivo-lous issue is presented for appeal. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); see also Smith v. Robbins, 528 U.S. 259, 273, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (the purpose of the Anders procedure is “to vindicate the constitutional right to appellate counsel”). The FPD failed to furnish this court with a rearraignment transcript, reflecting the colloquy between the court and the defendant when the defendant entered his guilty plea — nor did he order one. In his Anders brief, the FPD asserts that “Garcia has informed counsel that he does not seek to vacate his guilty plea but seeks to appeal his sentence.” Counsel has cited no authority that permits an attorney moving to withdraw to decline to undertake a “conscientious” examination of part of the record, based solely on his assertion that his client wishes to appeal only part of the judgment. This court has not directly addressed this issue in a published opinion. In United States v. Prado-Prado, 188 Fed.Appx. 329 (5th Cir.2006) (unpublished), the court was faced with a similar factual pattern. In that case, counsel filed an Anders brief but did not review the record relating to the guilty plea based on her assertion that Prado-Prado instructed her not to challenge the plea. In response to counsel’s Anders brief, Prado-Prado filed a motion to appoint substitute counsel. The response did not challenge counsel’s assertion that Prado-Prado did not wish to appeal his guilty plea. Instead, the defendant requested the appointment of substitute counsel to challenge sentencing issues. The court construed Prado-Prado’s response as confirmation that he did not desire to appeal his guilty plea. Therefore, the court concluded that counsel’s Anders brief was sufficient. The court then went on to address the sentencing issues raised in the case. Prado-Prado is persuasive authority, see 5th CiR. R. 47.5, for the proposition that it is consistent" }, { "docid": "5670274", "title": "", "text": "in both actions. As the district court pointed out, it is undisputed that the Meyerses controlled the instant action as well as the dismissed case. RMC alleges that it is an entity owned by the Meyerses; public records show that the Meyerses are the sole managers or members of RMC; and RMC stipulated that the Meyerses owned RMC and were RMC’s sole members and managers with “full authority to exercise RMC’s powers and bring or defend claims on RMC’s behalf.” R. at 178. To whatever extent RMC has a legitimate interest in the claims and causes of action alleged in the instant action, RMC’s interests in those claims and causes of action were adequately represented by the Meyerses in the previously dismissed case. Thus, the record supports a finding of privity. Because we affirm on the district court’s dismissal of RMC’s suit on grounds of res judicata, we do not need to reach the Rule 9(b) issue. United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir.2009) (“[A court of appeals] may affirm for any reason supported by the record ...”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under 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.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). hi. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned" }, { "docid": "2843175", "title": "", "text": "to have evidence tending to show, that the Government refused to file a motion for suspect reasons such as his race or his religion.” Id. The factual discrepancies between the two parties’ accounts do not entitle Brown to an evidentiary hearing. Brown would not be entitled to relief as a matter of law, because he has not alleged the Government’s failure to file the Rule 35(b) motion was the result of an unconstitutional motive. See supra Part III.B. We hold that the district court did not abuse its discretion because, as the district court correctly observed, even “[assuming arguendo that the Government did enter into a subsequent verbal agreement with the defendant, the Court could not compel the Government to file a [R]ule 35(b) motion under the circumstances here.” IV. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s decision. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Although the Government sought to enforce the waiver in the district court, the Government does not seek to enforce it in this Court. Therefore, the waiver is not binding, and this Court may consider the instant appeal. See United States v. Story, 439 F.3d 226, 231 (5th Cir.2006) (\"In the absence of the government's objection to [the appellant’s] appeal based on his appeal waiver, the waiver is not binding because the government has waived the issue.”). . The record is unclear as to Brown's relationship with the woman who made the call. At some points, she is referred to as Brown’s wife, in others, as Brown’s girlfriend. . In its opposition to Brown’s original § 2255 motion, the Government also argued that Brown waived his right to appeal, see supra, and Brown's claim was not cognizable under § 2255. The Government has not pressed these issues on appeal, and so we do not consider them here. See United States v. Griffith, 522 F.3d 607, 610 (5th Cir.2008) (\"It is a well worn principle that the" }, { "docid": "14098568", "title": "", "text": "his client wishes to appeal only part of the judgment. This court has not directly addressed this issue in a published opinion. In United States v. Prado-Prado, 188 Fed.Appx. 329 (5th Cir.2006) (unpublished), the court was faced with a similar factual pattern. In that case, counsel filed an Anders brief but did not review the record relating to the guilty plea based on her assertion that Prado-Prado instructed her not to challenge the plea. In response to counsel’s Anders brief, Prado-Prado filed a motion to appoint substitute counsel. The response did not challenge counsel’s assertion that Prado-Prado did not wish to appeal his guilty plea. Instead, the defendant requested the appointment of substitute counsel to challenge sentencing issues. The court construed Prado-Prado’s response as confirmation that he did not desire to appeal his guilty plea. Therefore, the court concluded that counsel’s Anders brief was sufficient. The court then went on to address the sentencing issues raised in the case. Prado-Prado is persuasive authority, see 5th CiR. R. 47.5, for the proposition that it is consistent with Anders for counsel to pretermit consideration of an appellant’s guilty plea at the appellant’s request. However, Prado-Prado suggests that there should be some confirmation in the record of appellant’s request. In Jones v. Estelle, 584 F.2d 687 (5th Cir.1978), this court considered whether counsel must file an Anders brief following a defendant’s withdrawal of appeal at the advice of counsel. We held that “Compliance was not required ... because [the defendant] voluntarily withdrew his appeal after consultation with, and advice from, counsel.” Id. at 691. The court emphasized that the decision must be one “the client has ‘suggested, acquiesced in, or concurred with.’ ” Id. (Citation omitted). The record in that case confirmed that the defendant’s “decision was his own.” Id. We stated that only where “counsel gives his client good-faith and effective advice to withdraw an appeal he believes meritless and the client voluntarily instructs him to do so, the Anders requirements do not apply.” We are persuaded that the Prado-Prado/Jones approach to this problem is a sensible one. Read together these cases" }, { "docid": "1531083", "title": "", "text": "sponte only “as long as the procedure employed is fair.” Id. (quotation marks and citation omitted). This court has “suggested that fairness in this context requires both notice of the court’s intention and an opportunity to respond.” Id. Even if the district court failed to provide notice to the plaintiff prior to dismissal, this court still may affirm if the plaintiff has alleged its “best case” and the dismissal was otherwise proper. Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 643 (5th Cir.2007). “At some point a court must decide that a plaintiff has had fair opportunity to make his case; if, after that time, a cause of action has not been established, the court should finally dismiss the suit.” Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir.1986). REI contends that the district court erred by failing to give REI notice of the court’s intention to dismiss the claims or an opportunity to amend its complaint. Despite several amendments, REI insists it only had one opportunity to amend once employing counsel. The defendants argue that despite the lack of notice, REI had the opportunity to allege its best case. The district court permitted REI to amend its complaint four times to correct deficiencies noted by the court before its sua sponte dismissal. REI’s explanation for wanting to amend again did not offer reasons that would change the outcome of the case. REI had the opportunity to allege its best case. We find no error in the dismissal of REI’s remaining claims. AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Norsworthy filed for bankruptcy on or about April 17, 2008, and the district court signed an order administratively closing the case against him on June 6, 2008. . The claims we are not discussing because of inadequate briefing are identified in REI's brief as Issues 5. 6. 8. 9. and 10. . We discuss Issue 1 from REI's brief in this section." }, { "docid": "22655601", "title": "", "text": "v. Rojas-Luna, 522 F.3d 502, 504-06 (5th Cir.2008) (holding that the fact of removal must be admitted or proven beyond a reasonable doubt). The PSR calculated Flores’ total offense level at 21. This included a 16-level increase, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), because she had previously been deported following a felony conviction for a crime of violence, specifically, a December 2000 Florida conviction for aggravated assault with a deadly weapon. It determined Flores’ criminal history score to be III, subjecting her to a guidelines range of 46 to 57 months of imprisonment. Flores did not object to the PSR’s calculations. The district court sentenced her at the low end of the guidelines range, 46 months, followed by a three-year period of supervised release. Flores timely appealed. II. The Federal Public Defender appointed to represent Flores has filed a motion for leave to withdraw and an Anders brief. Anders established standards for a court-appointed attorney who seeks to withdraw from a direct criminal appeal on the ground that the appeal lacks an issue of arguable merit. After a “conscientious examination” of the case, the attorney must “request permission to withdraw” and submit a “brief referring to anything in the record that might arguably support the appeal.” Anders, 386 U.S. at 744, 87 S.Ct. 1396. Flores was informed of counsel’s motion to withdraw but has not filed a response. At this point our current practice is to examine the brief submitted by counsel raising anything in the record that might arguably support an appeal, examine any points raised by the appellant himself, and independently examine the record, to determine whether counsel has adequately identified all nonfrivolous issues. We write in this case to signal a change in this court’s approach to Anders cases. Our analysis must start with the Supreme Court’s seminal decision in Anders v. California. In Anders, after the California District Court of Appeal had appointed counsel to conduct a first appeal to that court from an indigent’s conviction, counsel informed the court by letter that after a study of the record and consultation with the accused, he had concluded" }, { "docid": "22655609", "title": "", "text": "a new lawyer for the defendant.) If the brief explains the nature of the case and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous. We shall confine our scrutiny of the record to the portions of it that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer’s discussion of the issues that he chose to discuss is responsible and if there is nothing in the district court’s decision to suggest that there are other issues the brief should have discussed, we shall have enough basis for confidence in the lawyer’s competence to forgo scrutiny of the rest of the record. The resources of the courts of appeals are limited and the time of staff attorneys and law clerks that is devoted to searching haystacks for needles is unavailable for more promising research. Id. at 553. The Third Circuit follows the Seventh Circuit approach. See United States v. Youla, 241 F.3d 296 (3d Cir.2001) and United States v. Ripoll, 123 Fed.Appx. 479 (3d Cir.2005) (unpublished). We agree with the Seventh Circuit’s analysis and adopt its approach to Anders cases. The holding in this case, along with the holding in our companion case, United States v. Garland, No. 09-50317, 632 F.3d 877 (5th Cir.Tex.), setting forth the minimum standards for Anders briefs, will fully satisfy defendants’ Sixth Amendment right of counsel on direct appeal. Applying this process to the facts of Flores’ guilty plea and sentence, and based on our review of counsel’s brief and the relevant portions of the record referenced therein, we accept counsel’s assessment that Flores has no nonfrivolous issues to raise on appeal. III. Accordingly, counsel’s motion to withdraw is granted and the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. . We have incorporated a number of changes in the opinion suggested" }, { "docid": "22655610", "title": "", "text": "searching haystacks for needles is unavailable for more promising research. Id. at 553. The Third Circuit follows the Seventh Circuit approach. See United States v. Youla, 241 F.3d 296 (3d Cir.2001) and United States v. Ripoll, 123 Fed.Appx. 479 (3d Cir.2005) (unpublished). We agree with the Seventh Circuit’s analysis and adopt its approach to Anders cases. The holding in this case, along with the holding in our companion case, United States v. Garland, No. 09-50317, 632 F.3d 877 (5th Cir.Tex.), setting forth the minimum standards for Anders briefs, will fully satisfy defendants’ Sixth Amendment right of counsel on direct appeal. Applying this process to the facts of Flores’ guilty plea and sentence, and based on our review of counsel’s brief and the relevant portions of the record referenced therein, we accept counsel’s assessment that Flores has no nonfrivolous issues to raise on appeal. III. Accordingly, counsel’s motion to withdraw is granted and the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. . We have incorporated a number of changes in the opinion suggested by other judges on the court and, with those changes, all active judges have assented." }, { "docid": "5670275", "title": "", "text": "reason supported by the record ...”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under 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.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). hi. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned their negligence misrepresentation claim." }, { "docid": "17572751", "title": "", "text": "in both actions. As the district court pointed out, it is undisputed that the Meyerses controlled the instant action as well as the dismissed case. RMC.alleges that it is an entity owned by the Meyerses; public records show that the Meyerses are the sole managers or members of RMC; and RMC stipulated that the Meyerses owned RMC and were RMC’s sole members and managers with “full authority to exercise RMC’s powers and bring or defend claims on RMC’s behalf.” R. at 178. To whatever extent RMC has a legitimate interest in the claims and causes of action alleged in the instant action, RMC’s interests in those claims and causes of action were adequately represented by the Meyerses in the previously dismissed case. Thus, the record supports a finding of privity. Because we affirm on the district court’s dismissal of RMC’s suit on grounds of res judicata, we do not need to reach the Rule 9(b) issue. United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir.2009) (“[A court of appeals] may affirm for any reason supported by the record ... ”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under 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.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). m. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned" }, { "docid": "20879050", "title": "", "text": "certainly said nothing disagreeing with the mandatory/permissive distinction. The vast majority of district courts deciding this issue have rejected Atlantic Marine’s application to permissive forum selection clauses. See, e.g., Fin. Cas. & Sur., Inc. v. Parker, 2014 WL 2515136, at *3 (S.D.Tex. June 4, 2014) (citing cases). So has the only court of appeals that has considered the issue. GDG Acquisitions, LLC v. Gov’t of Belize, 749 F.3d 1024, 1029-30 (11th Cir.2014) (remanding case for determination whether the contract “contains a mandatory forum- selection clause” that would implicate Atlantic Marine). Jefferson Parish relies on two district court cases applying Atlantic Marine to permissive clauses, but those cases do not analyze the issue in depth or acknowledge contrary authority. See Compass Bank v. Palmer, 2014 WL 355986, at *5 (WD.Tex. Jan. 30, 2014); United Am. Healthcare Corp. v. Backs, 997 F.Supp.2d 741, 750 (E.D.Mich.2014). Given the absence of any language from the Supreme Court rejecting our longstanding approach on this issue and the heavily lopsided nature of the post-Atlantic Marine split in the district courts, Jefferson Parish has not persuaded us that we should exercise our discretion to hear this interlocutory appeal. IT IS ORDERED that leave to appeal from the interlocutory order of the United States District Court of the Eastern District of Louisiana, New Orleans, entered on September 4, 2014, is DENIED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Atlantic Marine involved a motion to transfer venue based on a mandatory forum selection clause that designated a different federal forum. The Supreme Court added, however, that the same framework it set forth applies to a forum non conveniens motion seeking dismissal based on a forum selection clause requiring a state or foreign forum. See 134 S.Ct. at 580-82." }, { "docid": "16194243", "title": "", "text": "acted to conceal this fact. The MJ determined that the pleading did not support personal jurisdiction. In addition, the MJ rejected, as disingenuous, Bustos’s assertion that he had previously been unaware of Lennon’s medical condition. As the MJ pointed out, not only were Lennon’s health issues revealed to the Oregon court two years before the instant lawsuit was filed, but Bustos waited six months to file this motion from the date he alleges he first heard of Lennon’s stroke. We review the denial for abuse of discretion. Crostley v. Lamar Cnty., Tex., 717 F.3d 410, 420 (5th Cir.2013). The discretion given to the district court for this determination is broad. Id. “A district court abuses its discretion if it: (1) relies on clearly erroneous factual findings; (2) relies on erroneous conclusions of law; or (3) misapplies the law to the facts.” Priester v. JP Morgan Chase Bank, 708 F.3d 667, 672 (5th Cir.2013) (quoting In re Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir.2008) (en banc)). Federal Rule of Civil Procedure 15(a)(2) demands that leave to amend should be freely given “when justice so requires.” A district court, however, also has the power of managing its cases and docket and may consider factors, such as undue delay, bad faith, dilatory motive, and futility of the amendment, when deciding whether to grant leave to amend. Priester, 708 F.3d at 678. Considering the futility of the proposed amendment and the delay in submitting it, there is no abuse of discretion. AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . See SEC v. Ross, 504 F.3d 1130 (9th Cir.2007) (discussing the Alpha Telcom litigation); see also SEC v. Rubera, Nos. 12-35108, 12-35415, 535 Fed.Appx. 553, 2013 WL 3929231 (9th Cir. July 31, 2013) (mem.); SEC v. Rubera, 412 Fed.Appx. 980 (9th Cir.2011) (mem.); SEC v. Rubera, 350 F.3d 1084 (9th Cir.2003). . Bustos appears to be working at cross-purposes. He successfully appealed an order disgorging" }, { "docid": "16168517", "title": "", "text": "show that the ... sentence the district court imposed was not influenced in any way by the erroneous Guidelines calculation.” Id. at 719. Here, the district court imposed a sentence at the bottom of the higher, incorrect guidelines range and stated that the guidelines range was “fair and reasonable.” We see nothing in the record to indicate that the district court’s reasoning in choosing a sentence would have been the same had it been confronted with a guidelines range of 97-121 months. The Government has not shown that Peralta’s sentence was not influenced by an erroneous calculation. See Ibarra-Luna, 628 F.3d at 717-19. III. CONCLUSION For the above reasons, we AFFIRM the convictions and sentences of Ceballos. We VACATE the sentences of Peralta and REMAND for re-sentencing in accordance with this opinion. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . Although Lilliana is referred to as Ceballos’s wife, during her testimony she stated that they were not married but were \"just living together.” . The dissent apparently discounts Vasquez’s testimony because he did not testify as to Ceballos's specific statements and also parses through Vasquez’s testimony attempting to cast doubt as to Vasquez’s identification of Ceballos. Dissent at 2-4 & n. 2. Further, the dissent attempts to discredit Vasquez's testimony because he had been drinking alcohol when he observed Ceballos at the hotel. Id. at 4. \"It is not our role, however, under our standard of review for sufficiency of the evidence, to second-guess the determinations of the jury as to the credibility of the evidence.” United States v. Guidry, 406 F.3d 314, 318 (5th Cir.2005). . The dissent would find the district court erred in applying a two-level enhancement for obstruction of justice. Dissent at 12-16. But the rationale and arguments advanced in the dissent to support such a view are not advanced in Ceballos's brief on appeal and therefore are not properly before us. As we view Ceballos’s brief, he is raising" } ]

[ { "docid": "16704816", "title": "", "text": "her contention that her underlying state law claim for medical malpractice is not preempted. Mary Kuhl’s claim for emotional distress, like the Kuhls’ other state law claims, is based upon Lincoln National’s failure to expeditiously precertify payment for the St. Louis surgery. We conclude that Mary Kuhl’s claim for 'emotional distress “relates to” Lincoln National’s administration of the Belger Plan within the broad meaning of the ERISA preemption clause. Accordingly, Mary Kuhl’s claim for emotional distress is also preempted under section 514(a) of ERISA. We recognize the obvious salutary effect that imposing state law liability on Lincoln National might have on deterring poor precertification decisions. However, this is precisely the type of state regulation of plan administration that ERISA was designed to replace. “Section 514(a) was intended to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government.” Ingersoll-Rand, 498 U.S. at 142, 111 S.Ct. at 484. Other courts have speculated that Congress could not have foreseen the precertification review process when it enacted a preemption clause so broad that it relieves ERISA-regu-lated plans of most tort liability. See Corcoran v. United Healthcare, Inc., 965 F.2d 1321, 1334 (5th Cir.), cert. denied, — U.S.-, 113 S.Ct. 812, 121 L.Ed.2d 684 (1992). Although this may well be true, modification of ERISA in light of questionable modern insurance practices must be the job of Congress, not the courts. B. ERISA Claims The Kuhls’ argue that even if their state law claims are preempted by ERISA, the district court erred by not recharacterizing their state law claims under ERISA, by denying the Kuhls’ motion to amend the complaint to allege a cause of action under ERISA, and by dismissing their subsequent complaint alleging a breach of fiduciary duty under ERISA. Although the Kuhls apparently did not ask the district court to rechar-acterize their state law claims under ERISA, see App. at 830-31, the court examined the civil remedies available under section 502(a) of" } ]

[ { "docid": "19695257", "title": "", "text": "on state claims of vicarious liability are far too broad, and are contradicted by a substantial body of law. It is undisputed that ERISA preempts claims which arise from the manner in which an HMO administered plan benefits or which derive from the type or extent of benefits the defendant HMO promised or provided. See Kuhl v. Lincoln Nat. Health Plan, 999 F.2d 298, 303 (8th Cir. 1993), cert. denied, — U.S.-, 114 S.Ct. 694, 126 L.Ed.2d 661 (1994); Harms v. Cavenham Forest Industries, Inc., 984 F.2d 686, 694 (5th Cir.1993); Corcoran v. United Healthcare, Inc., 965 F.2d 1321, 1332 (5th Cir.), cert. denied, — U.S.-, 113 S.Ct. 812, 121 L.Ed.2d 684 (1992); Berger v. Edge-water Steel Co., 911 F.2d 911 (3d Cir.), cert. denied, 499 U.S. 920, 111 S.Ct. 1310, 113 L.Ed.2d 244 (1990); Elsesser v. Hospital of Philadelphia College, 802 F.Supp. 1286, 1291-92 (E.D.Pa.1992). Courts are in disagreement, however, over whether ERISA preempts a beneficiary’s medical malpractice claim against an HMO under an ostensible agency theory. Some courts reason that an action based on a theory of vicarious liability or ostensible agency “would require [a plaintiff] to show that [he] looked to the HMO for medical care and that the HMO held out the supposedly negligent doctor or facility as its employee,” thereby necessitating an examination of the benefits plan and, consequently, triggering ERISA preemption. Pomeroy, 868 F.Supp. at 113. See also Visconti v. U.S. Health Care, 857 F.Supp. 1097 (E.D.Pa.1994); Dukes, supra; Butler v. Wu, 853 F.Supp. 125 (D.N.J.1994); Ricci v. Gooberman, 840 F.Supp. 316, 317-18 (D.N.J.1993); Altieri v. Cigna Dental Health, Inc., 753 F.Supp. 61 (D.Conn.1990). Other courts take the opposite view. These courts begin with the principle that the term “related to” should be applied in a manner that is consistent with the policies of ERISA. Pohl v. National Benefits Consultants, Inc., 956 F.2d 126, 128 (7th Cir.1992). This Court agrees with the Third Circuit Court of Appeals’ opinion that a law relates to an ERISA plan if it is designed to affect such plans, singles them out for special treatment or predicates rights or" }, { "docid": "22832695", "title": "", "text": "Thus, the court determined that plaintiffs were “attempting to recover for a tort allegedly committed in the course of handling a benefit determination,” id. at 1332, and that such state law claims are preempted by ERISA. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 48, 107 S.Ct. 1549, 1553, 95 L.Ed.2d 39 (1987) (common law cause of action arising from “improper processing of a claim for benefits” preempted by ERISA); see also Kuhl v. Lincoln Nat’l Health Plan, Inc., 999 F.2d 298, 303 (8th Cir.1993) (medical malpractice claim against plan administrator for delaying pre-certification of heart surgery arose from administration of benefits and therefore was preempted), cert. denied, — U.S. -, 114 S.Ct. 694, 126 L.Ed.2d 661 (1994); Berger v. Edgewater Steel Co., 911 F.2d 911, 923 (3d Cir.1990) (claim against plan sponsor for misrepresenting available benefits preempted), cert. denied, 499 U.S. 920, 111 S.Ct. 1310, 113 L.Ed.2d 244 (1991). The HMOs argue that we should read Corcoran broadly to hold that medical malpractice claims against an HMO should be removable under Metropolitan Life whenever an HMO provides the complained-about medical treatment as a benefit of an ERISA-covered health plan. They note that several district courts have adopted versions of their suggested approach. See, e.g., Ricci v. Gooberman, 840 F.Supp. 316, 317-18 (D.N.J.1993) (plaintiffs attempt to hold an HMO liable under a vicarious liability claim similar to the ones at bar held preempted); Butler v. Wu, 853 F.Supp. 125, 129-30 (D.N.J.1994) (same); Nealy v. U.S. Healthcare HMO, 844 F.Supp. 966, 973 (S.D.N.Y.1994) (plaintiffs attempts to hold an HMO liable under several common law theories held preempted); Altieri v. Cigna Dental Health, Inc., 753 F.Supp. 61, 63-65 (D.Conn.1990) (ERISA preempts plaintiffs negligent supervision claim against an HMO). But see Independence HMO, Inc. v. Smith, 733 F.Supp. 983, 987-89 (E.D.Pa.1990) (ERISA does not preempt medical malpractice-type claims brought against HMOs under a vicarious liability theory); Elsesser v. Hospital of the Philadelphia College of Osteopathic Medicine, 802 F.Supp. 1286, 1290-91 (E.D.Pa.1992) (same for a claim against an HMO for the HMO’s negligence in selecting, retaining, and evaluating plaintiffs primary-care physician). See" }, { "docid": "10479815", "title": "", "text": "97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983). Such laws are preempted even when an aggrieved party will have no adequate remedy as a consequence. Smith v. Dunham-Bush, Inc., 959 F.2d 6, 11 (2d Cir.1992). However characterized, plaintiffs claims which arise from the manner in which defendant administered benefits or which are premised on the type or extent of benefits defendant promised or provided are preempted. See Kuhl v. Lincoln Nat. Health Plan, 999 F.2d 298, 303 (8th Cir.1993) (claims for breach of contract and malpractice against plan administrator for delaying heart surgery for plaintiffs decedent arose from administration of benefits and thus preempted), cert. denied, — U.S.—, 114 S.Ct. 694, 126 L.Ed.2d 661 (1994); Harms v. Cavenham Forest Industries, Inc., 984 F.2d 686, 694 (5th Cir.1993) (claim against plan sponsor for misrepresentation of available benefits preempted); Corcoran v. United Healthcare, Inc., 965 F.2d 1321, 1332 (5th Cir.) (malpractice claim against plan administrator’s utilization review agency for wrongful decision that hospitalization was not necessary alleged tort committed in connection with plan benefit determination and was preempted), cert. denied, — U.S. —, 113 S.Ct. 812, 121 L.Ed.2d 684 (1992); Berger v. Edgewater Steel Co., 911 F.2d 911, 923 (3d Cir.1990) (claim against plan sponsor for misrepresentation regarding benefits preempted); Elsesser v. Hospital of Philadelphia College, 802 F.Supp. 1286, 1291-92 (E.D.Pa.1992) (claims against plan administrator for wrongful refusal to pay for testing and for breach of contractual obligations and misrepresentation regarding qualifications of primary care physician and availability of specialized treatment preempted); Kohn v. Delaware Valley HMO, Inc., 1991 WL 275609 at *4 (E.D.Pa. Dec. 20, 1991) (claims against HMO plan for failure to provide promised benefits and discouraging referrals to specialists preempted). Accordingly, plaintiffs claims premised on misrepresentation, negligence and breach of contract will be dismissed. Plaintiffs vicarious liability malpractice claim is another matter. Pennsylvania recognizes a cause of action against hospitals for malpractice on an ostensible agency theory where a patient looks to the institution for care and it holds out a physician as its employee, that is by its conduct it leads the patient reasonably to believe that" }, { "docid": "6696773", "title": "", "text": "Sixth Circuit Court of Appeals in Tolton v. American Biodyne, Inc., 48 F.3d 937 (6th Cir.1995), confronted whether claims of wrongful death, medical malpractice, negligent and intentional refusal to authorize inpatient treatment, insurance bad faith, breach of contract, negligent retention of services, and loss of consortium were preempted by ERISA. See id. at 939. The claims arose out of the administrator and health provider’s refusal to authorize certain psychiatric benefits to Henry Tolton prior to his suicide. See id. at 939-940. Because such denials were based on assessments of what benefits were available to the deceased under the plan, the court held that claims related to those denials were preempted by ERISA. See id. at 942. ERISA has also been interpreted as preempting claims based on a health organization’s benefits determination even when the decision was considered to constitute medical advice as well. See Corcoran v. United HealthCare, Inc., 965 F.2d 1321, 1331 (5th Cir.), cert. denied, 506 U.S. 1033, 113 S.Ct. 812, 121 L.Ed.2d 684 (1992). In Corcoran, the Fifth Circuit Court of Appeals held that because the health organization’s medical advice was in the context of making a determination about the availability of benefits under the plan, the plaintiffs’ wrongful death action based on the loss of their unborn fetus was preempted by ERISA. See id. at 1331. Turning to the case at bar, the Court is confronted with plaintiffs allegations that defendants wrongfully advised plaintiff she was not a policyholder. This error goes directly to the administration of the benefits plan. The threshold question is whether plaintiffs son was in fact covered by the Keystone benefit plan at the times plaintiff called for a referral. If so, the fundamental question becomes why did the administrator(s) give plaintiff inaccurate information about her coverage. Despite plaintiffs attempts to craft defendants’ actions as medical malpractice, the wrong committed in this case relates to the administration of the plan, not to the provision or supervision of medical services. In fact, the overarching problem was that no medical treatment was ever initiated let alone provided. Plaintiff was seeking a referral pursuant to" }, { "docid": "19695256", "title": "", "text": "created and imposed by the benefit plan and, as such, was subject to scrutiny under ERISA. Relying on Dukes v. U.S. Health Care Systems of Pennsylvania, 848 F.Supp. 39 (E.D.Pa.1994), the Court concluded that even under a theory of vicarious responsibility the benefit plan would have to be examined to determine what representations were made to the plaintiffs with regard to whether the HMO “held out” the doctors as its employees. Pomeroy, 868 F.Supp. at 113. Indeed, the relevant language of Dukes states emphatically: [A] medical malpractice claim against an HMO, whether couched in direct or vicarious liability terms, relates to the benefit plan. One who enrolls in an HMO is assured of medical services of a given extent and quality. A malpractice claim asserts the services provided did not measure up to the benefit plan’s promised quality. The question is one of relating plan-performance to plan-promise, and is therefore preempted by ERISA. 848 F.Supp. at 42. This Court concludes that the scope of Dukes’ analysis of and conclusions about the preemptive effect of ERISA on state claims of vicarious liability are far too broad, and are contradicted by a substantial body of law. It is undisputed that ERISA preempts claims which arise from the manner in which an HMO administered plan benefits or which derive from the type or extent of benefits the defendant HMO promised or provided. See Kuhl v. Lincoln Nat. Health Plan, 999 F.2d 298, 303 (8th Cir. 1993), cert. denied, — U.S.-, 114 S.Ct. 694, 126 L.Ed.2d 661 (1994); Harms v. Cavenham Forest Industries, Inc., 984 F.2d 686, 694 (5th Cir.1993); Corcoran v. United Healthcare, Inc., 965 F.2d 1321, 1332 (5th Cir.), cert. denied, — U.S.-, 113 S.Ct. 812, 121 L.Ed.2d 684 (1992); Berger v. Edge-water Steel Co., 911 F.2d 911 (3d Cir.), cert. denied, 499 U.S. 920, 111 S.Ct. 1310, 113 L.Ed.2d 244 (1990); Elsesser v. Hospital of Philadelphia College, 802 F.Supp. 1286, 1291-92 (E.D.Pa.1992). Courts are in disagreement, however, over whether ERISA preempts a beneficiary’s medical malpractice claim against an HMO under an ostensible agency theory. Some courts reason that an action based" }, { "docid": "17237560", "title": "", "text": "L.Ed.2d 130 (1996) (holding that a participant or beneficiary may recover individualized \"equitable relief” for a breach of a fiduciary duty pursuant to 29 U.S.C. § 1132[a][3], but,reiterating the holding of Mertens, 508 U.S. at 255-58, 113 S.Ct. at 2067-69, that compensatory damages do not constitute “equitable relief” within the meaning of section 1132[a][3]). Despite arguments to the contrary, it is widely recognized that the absence of a comparable remedy under ERISA does not alter the analysis concerning preemption of the state law claims. See, e.g., Turner, 127 F.3d at 198-200; Tolton, 48 F.3d at 943; Corcoran, 965 F.2d at 1333; Custer v. Pan American Life Ins. Co., 12 F.3d 410, 418-19 (4th Cir.1993); First Nat'l Life Ins. Co. v. Sunshine-Jr. Food Stores, 960 F.2d 1546, 1550 (11th Cir.1992); Lister v. Stark, 890 F.2d 941, 946 (7th Cir.1989). .Several recent cases have held that when the doctors who actually treated the plan beneficiary are actual or ostensible agents of the plan (as is often the case in a staff-model HMO) a malpractice claim against the plan based upon a theory of vicarious liability is not preempted by ERISA. See, e.g., Nascimento v. Harvard Community Health Plan, Inc., No. 94-2534, slip op. at 1, 11-12 (Mass.Super.Ct. Sept. 26, 1997) (McHugh, J.) (malpractice claim against doctor and doctor’s employer, Harvard Community Health Plan, not preempted by ERISA because the question of whether the Plan’s doctor negligently diagnosed or wrongfully withheld treatment from the plaintiff \"requires no reference whatsoever to the terms of the plan”); Pacificare of Oklahoma v. Burrage, 59 F.3d 151, 155 (10th Cir.1995) (malpractice claim at issue does not challenge the administration of benefits under an ERISA plan, but rather alleges that the decedent received negligent treatment from a doctor who was held out by the HMO as its agent); Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 361 (3rd Cir.1995), cert. denied, -U.S. -, 116 S.Ct. 564, 133 L.Ed.2d 489 (1995) (”[T)here is no allegation here that the HMOs denied anyone any benefits that they were due under the plan. Instead, the plaintiffs are attempting to hold the HMOs" }, { "docid": "6696769", "title": "", "text": "111 S.Ct. 478 (holding that state tort claims arising out of a wrongful discharge allegedly committed in an effort to avoid paying out pension benefits were preempted); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 64, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) (stating that state law claims for breach of contract, wrongful termination, and retaliation were preempted). Although the Third Circuit Court of Appeals has not specifically addressed the question presented in the case at bar, the appellate court has discussed the relationship between state medical malpractice claims and ERISA’s enforcement provision. In Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3d Cir.), cert. denied, 516 U.S. 1009, 116 S.Ct. 564, 133 L.Ed.2d 489 (1995), plaintiffs from two cases joined for decision were suing a health maintenance organization for injuries arising from the medical malpractice of several affiliated hospitals and health care professionals. See id. at 351. In one case a health facility had refused to perform a blood test, leading to a delayed detection of a high blood sugar level and, allegedly, to the patient’s unnecessary death. See id. at 352. The plaintiffs in the other case were suing based on a doctor’s alleged failure to prevent their baby from being stillborn. See id. at 353. The Third Circuit Court of Appeals first noted the plaintiffs were complaining not about benefits being withheld but rather about the poor quality of medical treatment they received. See id. at 356. The court then explained there is a critical distinction between a company performing its administrative functions, e.g., conducting a utilization or pre-certification review, and a company providing, arranging for, and supervising the doctors who provided the actual medical treatment for the plan participants. See id. at 360-361. Only the former implicates ERISA. See id. Cf. Berger v. Edgewater Steel Co., 911 F.2d 911, 923 (3d Cir.1990) (holding misrepresentation claim preempted), cert. denied, 499 U.S. 920, 111 S.Ct. 1310, 113 L.Ed.2d 244 (1991); Pane v. RCA Corp., 868 F.2d 631, 634-635 (3d Cir.1989) (holding state claims for breach of contract, breach of covenants of good faith and fair dealing, and" }, { "docid": "6696772", "title": "", "text": "See id. The Eighth Circuit Court of Appeals held that artful characterization of the action as malpractice did not change the fact that plaintiffs’ claims were based on the organization’s delay in recerti-fying payment for surgery. See id. at 303-304. Such a failure constituted an improper processing of a claim for benefits and was, therefore, preempted. See id.; see also Cannon v. Group Health Service of Oklahoma, Inc., 77 F.3d 1270, 1273-1274 (10th Cir.) (holding plaintiff’s breach of contract and breach of fiduciary duty claims arising out of wife’s death allegedly caused by health organization’s delayed approval of bone marrow transplant were preempted), cert. denied, - U.S. -, 117 S.Ct. 66, 136 L.Ed.2d 27 (1996); Spain v. Aetna Life Insurance Co., 11 F.3d 129, 131-132 (9th Cir.1993) (holding-plaintiffs wrongful death action resulting from a health organization’s delayed approval of the third part of a bone marrow transplant was a claim for the negligent administration of benefits and was preempted by ERISA), cert. denied, 511 U.S. 1052, 114 S.Ct. 1612, 128 L.Ed.2d 340 (1994). Similarly, the Sixth Circuit Court of Appeals in Tolton v. American Biodyne, Inc., 48 F.3d 937 (6th Cir.1995), confronted whether claims of wrongful death, medical malpractice, negligent and intentional refusal to authorize inpatient treatment, insurance bad faith, breach of contract, negligent retention of services, and loss of consortium were preempted by ERISA. See id. at 939. The claims arose out of the administrator and health provider’s refusal to authorize certain psychiatric benefits to Henry Tolton prior to his suicide. See id. at 939-940. Because such denials were based on assessments of what benefits were available to the deceased under the plan, the court held that claims related to those denials were preempted by ERISA. See id. at 942. ERISA has also been interpreted as preempting claims based on a health organization’s benefits determination even when the decision was considered to constitute medical advice as well. See Corcoran v. United HealthCare, Inc., 965 F.2d 1321, 1331 (5th Cir.), cert. denied, 506 U.S. 1033, 113 S.Ct. 812, 121 L.Ed.2d 684 (1992). In Corcoran, the Fifth Circuit Court of Appeals" }, { "docid": "13580208", "title": "", "text": "unique circumstances that led to the amended complaint and the leniency afforded to plaintiffs in their position, the motion to remand will be determined according to the amended complaint. Furthermore, even if jurisdiction had been proper at the time of removal based on the original complaint, subject matter jurisdiction can always be raised before judgment is entered. If at any point prior to final judgment the court determines that it lacks subject matter jurisdiction, it must remand the action to state court. 28 U.S.C. § 1447(c). The issues raised in the present motions go to subject matter jurisdiction. In deciding whether state law claims come within the scope of section 502(a), and are therefore completely preempted by ERISA, the court must consider whether the claims are “to recover benefits due ... under the terms of the plan, to enforce ... rights under terms of the plan, or to clarify ... rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). Recently the Third Circuit, in Dukes, found that a claim about the quality of a benefit was not a claim under section 502(a), noting that nothing “in the legislative history, structure, or purpose of ERISA suggest that Congress viewed § 502(a)(1)(B) as creating a remedy for a participant injured by medical malpractice.” Dukes, 57 F.3d at 357. In confronting a similar issue, the Fifth Circuit held that the medical decisions made by an HMO were preempted by ERISA because they were made in the context of a benefits determination under the plan. Corcoran v. United HealthCare, Inc., 965 F.2d 1321, 1331 (5th Cir.), cert. denied, 506 U.S. 1033, 113 S.Ct. 812, 121 L.Ed.2d 684 (1992). In Corcoran, a woman brought a wrongful death action for the loss of her fetus after the plaintiffs HMO determined that the recommended hospitalization of plaintiff was unnecessary under a cost containment program known as utilization review. The Dukes court distinguished Corcoran on the ground that the medical decisions made by the HMO in that case were purely a function of its administrative role, while the HMO in Dukes not only" }, { "docid": "22832696", "title": "", "text": "Life whenever an HMO provides the complained-about medical treatment as a benefit of an ERISA-covered health plan. They note that several district courts have adopted versions of their suggested approach. See, e.g., Ricci v. Gooberman, 840 F.Supp. 316, 317-18 (D.N.J.1993) (plaintiffs attempt to hold an HMO liable under a vicarious liability claim similar to the ones at bar held preempted); Butler v. Wu, 853 F.Supp. 125, 129-30 (D.N.J.1994) (same); Nealy v. U.S. Healthcare HMO, 844 F.Supp. 966, 973 (S.D.N.Y.1994) (plaintiffs attempts to hold an HMO liable under several common law theories held preempted); Altieri v. Cigna Dental Health, Inc., 753 F.Supp. 61, 63-65 (D.Conn.1990) (ERISA preempts plaintiffs negligent supervision claim against an HMO). But see Independence HMO, Inc. v. Smith, 733 F.Supp. 983, 987-89 (E.D.Pa.1990) (ERISA does not preempt medical malpractice-type claims brought against HMOs under a vicarious liability theory); Elsesser v. Hospital of the Philadelphia College of Osteopathic Medicine, 802 F.Supp. 1286, 1290-91 (E.D.Pa.1992) (same for a claim against an HMO for the HMO’s negligence in selecting, retaining, and evaluating plaintiffs primary-care physician). See also Kearney v. U.S. Healthcare, Inc., 859 F.Supp. 182, 186-87 (E.D.Pa.1994) (holding in a ease similar to those at bar that ERISA preempts plaintiffs direct negligence claim, but not its vicarious liability claim). The HMOs’ reliance on Corcoran is misplaced. Although United’s decisions in Cor-coran were in part medical decisions, United, unlike the HMOs here, did not provide, arrange for, or supervise the doctors who provided the actual medical treatment for plan participants. (Blue Cross played that role in Corcoran.) Instead, United only performed an administrative function inherent in the “utilization review.” The difference between the “utilization review” and the “arranging for medical treatment” roles is crucial for the purposes of § 502(a)(1)(B) because only in a utilization-review role is an entity in a position to deny benefits due under an ERISA welfare plan. 965 F.2d at 1333 n. 16 (noting that ERISA is implicated in “utilization review” decisions but not medical-treatment decisions because only the former are “made in connection with a cost containment plan”); see also Kuhl, 999 F.2d at 301-03 (malpractice claims" }, { "docid": "13580209", "title": "", "text": "the quality of a benefit was not a claim under section 502(a), noting that nothing “in the legislative history, structure, or purpose of ERISA suggest that Congress viewed § 502(a)(1)(B) as creating a remedy for a participant injured by medical malpractice.” Dukes, 57 F.3d at 357. In confronting a similar issue, the Fifth Circuit held that the medical decisions made by an HMO were preempted by ERISA because they were made in the context of a benefits determination under the plan. Corcoran v. United HealthCare, Inc., 965 F.2d 1321, 1331 (5th Cir.), cert. denied, 506 U.S. 1033, 113 S.Ct. 812, 121 L.Ed.2d 684 (1992). In Corcoran, a woman brought a wrongful death action for the loss of her fetus after the plaintiffs HMO determined that the recommended hospitalization of plaintiff was unnecessary under a cost containment program known as utilization review. The Dukes court distinguished Corcoran on the ground that the medical decisions made by the HMO in that case were purely a function of its administrative role, while the HMO in Dukes not only performed an administrative role, but also arranged for the medical treatment of plan participants. According to the Third Circuit, to the extent a complaint alleges liability for actions taken solely in this latter role, ERISA does not apply and the court lacks removal jurisdiction. Dukes, 57 F.3d at 361. In the absence of Ninth Circuit authority on point, this court finds Dukes persuasive and applies it to the instant action. B. Analysis 1. Health Net The Roesserts allege that Health Net acted negligently in calling Hill to have its doctors assist in committing Mrs. Roessert because they were acting outside the bounds of the plan and without adequate medical knowledge. The facts cited in the complaint also include the allegation that Health Net directed the Roesserts to switch their PMG to Alta Bates for the purpose of consulting with Dr. Rest, although that act is not specifically included in any of the causes of action. Plaintiffs also bring causes of action for negligent and intentional infliction of emotional distress for the above acts. However, the" }, { "docid": "6537094", "title": "", "text": "plaintiffs were not claiming that the HMO failed properly to provide them with their healthcare plan benefits, but, as in this case, that the treating physician was negligent. The Third Circuit held that the plaintiffs medical malpractice claims were not preempted by ERISA because plaintiffs claims were not “to recover [plan] benefits due ... under the terms of [the] plan, to enforce ... rights under the terms of the plan, or to clarify ... rights to future benefits under the terms of the plan.” Id. at 351-52 (quoting § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B)). See also Pacificare of Oklahoma, Inc. v. Burrage, 59 F.3d 151, 154 (10th Cir.1995) (ERISA does not preempt medical malpractice claims because doctor’s negligence can be reviewed without reference to benefit plan); Rice v. Panchal, 65 F.3d 637, 645 (7th Cir.1995) (“[T]his is a case in which ‘beyond the simple need to refer to the ... [Plan], the ... [Plan] is irrelevant to the dispute_’”); Prihoda v. Shpritz, 914 F.Supp. 113, 117-18 (D.Md.1996) (where issue is quality of service supplied and not whether benefits were provided, there is no ERISA preemption). Defendant relies on various cases that have found ERISA preemption in malpractice cases against HMOs themselves, particularly regarding an HMO decision to deny certain benefits to their participants. See, e.g., Corcoran v. United HealthCare, Inc., 965 F.2d 1321 (5th Cir.1992); Kuhl v. Lincoln Health Plan of Kansas City, 999 F.2d 298 (8th Cir.1993). Defendant’s reliance on these cases is misplaced, however, because these eases involved claims relating to a denial of benefits — for example, the refusal of an HMO to pre-certify a patient for heart surgery or in-patient hospital care — rather than the quality of care provided by an HMO doctor. The plaintiffs in these cases were not claiming that their HMO doctors were negligent in earing for them; they were claiming that no care was ever provided because of the HMO’s policies. The present case is completely different. Under defendant’s theory, every medical malpractice claim would fall under the exclusive jurisdiction of the federal district courts because of the ERISA" }, { "docid": "2439409", "title": "", "text": "HMO, 844 F.Supp. 966, 972 (S.D.N.Y.1994). Stated in a different way, “if [plaintiffs’] claims were stripped of their link to the [benefit plan], they would cease to exist.” Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1220 (5th Cir.1992), cert. denied, — U.S.-, 113 S.Ct. 68, 121 L.Ed.2d 35 (1992). Therefore, although Plaintiffs’ claims are drafted in state common law terms of medical malpractice, negligence, and intentional infliction of emotional distress, they are nonetheless integrally and inextricably “related to” their employee benefit plan. Indeed, the gravamen of their action against Prudential is for the substandard performance of its fiduciary duty as health care administrator. See Kuhl v. Lincoln National Health Plan of Kansas City, Inc., 999 F.2d 298, 303 (8th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 694, 126 L.Ed.2d 661 (1994) (“Artful pleading by characterizing [the provider’s] actions in refusing to pay for the surgery ... or by characterizing the same administrative decisions as ‘malpractice’ does not change the fact that plaintiffs’ claims are based on the contention that [the plan provider] improperly processed [plaintiffs] claim for medical benefits.”); Nealy v. U.S. Healthcare HMO, 844 F.Supp. 966, 973 (S.D.N.Y.1994) (“[N]o matter how the claim is pleaded, state law claims of medical malpractice are preempted by ERISA.”) III. PLAINTIFFS’ CLAIMS DO NOT FALL WITHIN THE “SAVINGS CLAUSE” Plaintiffs argue that even if their claims were found to “relate to” the employee benefit plan, they would not be preempted by ERISA Section 514(a) because the claims fall within ERISA Section 514(b), the “savings clause.” Section 514(b) provides an exemption from ERISA’s broad preemption provision for claims based on state law “regulating insurance.” 29 U.S.C. § 1144(b)(2)(A). Plaintiffs’ argument fails for two reasons. First, Prudential may not be deemed an insurer merely because of its status as an HMO or administrator of an employee benefit plan. In fact, the ERISA subsection immediately following the “savings clause” expressly states that no “employee benefit plan ... shall be deemed to be an insurance company or other insurer, ... or to be engaged in the business of insurance ... for purposes of any law" }, { "docid": "10479816", "title": "", "text": "was preempted), cert. denied, — U.S. —, 113 S.Ct. 812, 121 L.Ed.2d 684 (1992); Berger v. Edgewater Steel Co., 911 F.2d 911, 923 (3d Cir.1990) (claim against plan sponsor for misrepresentation regarding benefits preempted); Elsesser v. Hospital of Philadelphia College, 802 F.Supp. 1286, 1291-92 (E.D.Pa.1992) (claims against plan administrator for wrongful refusal to pay for testing and for breach of contractual obligations and misrepresentation regarding qualifications of primary care physician and availability of specialized treatment preempted); Kohn v. Delaware Valley HMO, Inc., 1991 WL 275609 at *4 (E.D.Pa. Dec. 20, 1991) (claims against HMO plan for failure to provide promised benefits and discouraging referrals to specialists preempted). Accordingly, plaintiffs claims premised on misrepresentation, negligence and breach of contract will be dismissed. Plaintiffs vicarious liability malpractice claim is another matter. Pennsylvania recognizes a cause of action against hospitals for malpractice on an ostensible agency theory where a patient looks to the institution for care and it holds out a physician as its employee, that is by its conduct it leads the patient reasonably to believe that he is being treated by an employee of the institution. See Capan v. Divine Providence Hospital, 287 Pa.Super. 364, 368-70, 430 A.2d 647 (1980). This theory has been held applicable to an HMO. See Boyd v. Albert Einstein Medical Center, 377 Pa.Super. 609, 620-21, 547 A.2d 1229 (1988). Courts are divided on the issue of whether ERISA preempts a medical malpractice claim against an HMO employee benefits plan party or administrator by a beneficiary under an ostensible agency theory. See, e.g., Visconti v. U.S. Health Care, 857 F.Supp. 1097, 1104-05 (E.D.Pa.1994) (vicarious liability claim against HMO administering benefits plan for malpractice of participating physician alleged to be ostensible agent is preempted); Dukes v. U.S. Health Care Systems of Pennsylvania, Inc., 848 F.Supp. 39, 43 (E.D.Pa.1994) (same); Nealy v. U.S. Healthcare HMO, 844 F.Supp. 966, 973 (S.D.N.Y.1994) (same); Ricci v. Gooberman, 840 F.Supp. 316, 317-18 (D.N.J.1993) (same); and, Smith v. HMO Great Lakes, 852 F.Supp. 669, 671-72 (N.D.Ill.1994) (vicarious liability claim against plan administrator for malpractice of participating physician not preempted); Elsesser, 802 F.Supp. at 1290" }, { "docid": "17237561", "title": "", "text": "plan based upon a theory of vicarious liability is not preempted by ERISA. See, e.g., Nascimento v. Harvard Community Health Plan, Inc., No. 94-2534, slip op. at 1, 11-12 (Mass.Super.Ct. Sept. 26, 1997) (McHugh, J.) (malpractice claim against doctor and doctor’s employer, Harvard Community Health Plan, not preempted by ERISA because the question of whether the Plan’s doctor negligently diagnosed or wrongfully withheld treatment from the plaintiff \"requires no reference whatsoever to the terms of the plan”); Pacificare of Oklahoma v. Burrage, 59 F.3d 151, 155 (10th Cir.1995) (malpractice claim at issue does not challenge the administration of benefits under an ERISA plan, but rather alleges that the decedent received negligent treatment from a doctor who was held out by the HMO as its agent); Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 361 (3rd Cir.1995), cert. denied, -U.S. -, 116 S.Ct. 564, 133 L.Ed.2d 489 (1995) (”[T)here is no allegation here that the HMOs denied anyone any benefits that they were due under the plan. Instead, the plaintiffs are attempting to hold the HMOs liable for their role as the arrangers’ of their decedents' medical treatment.”); see also F. Christopher Wethly, New York Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co.: Vicarious Liability Malpractice Claims Against Managed Care Organizations Escaping ERISA’s Grasp, 37 B.C. L.Rev. 813, 855-59 (1996). In the case, at bar, however, the malpractice claims against Travelers and Greenspring are premised upon a theory of direct rather than vicarious liability. Diane Andrews-Clarke does not allege that the doctors who treated Clarke at St. Joseph Hospital, Southern New Hampshire Medical Center, or Baldpate Hospital were actual or ostensible agents of Travelers or Greenspr-ing, or that Travelers or Greenspring directed Clarke to seek treatment at these hospitals, but rather wishes to recover for negligent medical decisions made during the utilization review process. As a general matter, this Court further notes that the vicarious liability crack in the shield of ERISA preemption is one of narrow applicability. Unlike fully integrated staff-model HMOs, which hire physicians as employees, the majority of managed care plans contract with independent" }, { "docid": "22832694", "title": "", "text": "experiencing with her pregnancy, recommended that Corcoran be hospitalized. As a result, Corcoran applied to the Bell Plan for disability benefits for the remainder of her pregnancy. Despite the recommendation of Corcoran’s doctor, United determined that hospitalization was unnecessary, and instead authorized only 10 hours a day of home nursing care. The fetus went into distress and died during a period of time when the nurse assigned to Corcoran was not on duty. Corcoran subsequently filed suit in Louisiana state court against Blue Cross and United. United removed the case to federal district court, claiming that Corcoran’s claims were completely preempted by ERISA. The district court then granted United’s motion to dismiss and Corcoran appealed. The U.S. Court of Appeals for the Fifth Circuit ruled that ERISA preempted Corcor-an’s claim against United and — implicitly, at least — that Corcoran’s claims were completely preempted. It explained that while United was in fact giving medical advice, it gave that advice as part of its role of making benefit determinations for the plan. 965 F.2d at 1331. Thus, the court determined that plaintiffs were “attempting to recover for a tort allegedly committed in the course of handling a benefit determination,” id. at 1332, and that such state law claims are preempted by ERISA. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 48, 107 S.Ct. 1549, 1553, 95 L.Ed.2d 39 (1987) (common law cause of action arising from “improper processing of a claim for benefits” preempted by ERISA); see also Kuhl v. Lincoln Nat’l Health Plan, Inc., 999 F.2d 298, 303 (8th Cir.1993) (medical malpractice claim against plan administrator for delaying pre-certification of heart surgery arose from administration of benefits and therefore was preempted), cert. denied, — U.S. -, 114 S.Ct. 694, 126 L.Ed.2d 661 (1994); Berger v. Edgewater Steel Co., 911 F.2d 911, 923 (3d Cir.1990) (claim against plan sponsor for misrepresenting available benefits preempted), cert. denied, 499 U.S. 920, 111 S.Ct. 1310, 113 L.Ed.2d 244 (1991). The HMOs argue that we should read Corcoran broadly to hold that medical malpractice claims against an HMO should be removable under Metropolitan" }, { "docid": "22832698", "title": "", "text": "against insurance company hired to perform a “pre-certification review” held to fall within § 502(a)’s civil enforcement provisions); Elsesser, 802 F.Supp. at 1290-91 (holding that the cause of action based on allegations that HMO withheld benefits were preempted, while the claims against HMO for its negligent selection, retention, and evaluation of a primary-care physician were not preempted). In these cases, the defendant HMOs play two roles, not just one. In addition to the utilization-review role played by United in Corcoran, the HMOs also arrange for the actual medical treatment for plan participants. Only this second role is relevant for this appeal, however: on the faces of these complaints there is no allegation that the HMOs somehow should be held liable for any decisions they might have made while acting in their utilization-review roles. Stated another way, unlike Corcoran, there is no allegation here that the HMOs denied anyone any benefits that they were due under the plan. Instead, the plaintiffs here are attempting to hold the HMOs liable for their role as the arrangers of their decedents’ medical treatment. For this reason, these cases are more like Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269 (2d Cir.1994). There, an employer had contracted with a psychotherapy service group, Human Affairs International, Inc. (“HAI”), to provide mental health services to its employees in connection with an employee benefit plan governed by ERISA. Lupo, an employee who received psychotherapy services from HAI, sued HAI in a state court for his therapist’s professional malpractice, breach of fiduciary duty, and intentional infliction of emotional distress. HAI, like the HMOs here, removed the ease to federal court, claiming that ERISA completely preempted Lupo’s claims. The district court agreed with HAI, and, accordingly, dismissed Lupo’s claim. The U.S. Court of Appeals for the Second Circuit reversed, holding that the district court lacked removal jurisdiction and was thus obligated to remand to the state court. It reached this conclusion because “[o]n their face, none of [Lupo’s] claims [bore] any significant resemblance to those described in [§ 502(a)(1)(B)].” 28 F.3d at 272. The situation in the cases at" }, { "docid": "5714518", "title": "", "text": "state law claims against defendants-alleging that the suicide resulted from defendant’s refusal to authorize certain inpatient benefits under the employee benefits plan which covered Tolton. The defendants removed the case to federal district court on grounds of ERISA preemption, and then moved for summary judgment on the same grounds. The district court granted the defendant’s motion for summary judgment and the plaintiff appealed. Reviewing the decision of the district court de novo, the Sixth Circuit affirmed, holding that because plaintiffs claims arose from the defendant’s refusal to authorize psychiatric benefits to Tolton under the plan, and because there was no dispute that the health plan was covered by ERISA, the claims “clearly ‘relat[ed] to’ the benefit plan” and were therefore, preempted. Id., at 942. The fact that Tolton was refused benefits pursuant to utilization review made no difference to the court, which explained that similar challenges to utilization review were found to be preempted in other circuits. Id. (relying on Corcoran v. United HealthCare, Inc., 965 F.2d 1321 (5th Cir.) (ERISA preempted wrongful death claim against utilization review provider for refusal to authorize hospitalization for plaintiff who then lost her fetus), cert. denied, 506 U.S. 1033, 113 S.Ct. 812, 121 L.Ed.2d 684 (1992), and also citing Kuhl v. Lincoln Nat’l Health Plan, 999 F.2d 298 (8th Cir.1993) (ERISA preempted wrongful death claim based upon delayed pre-authorization for surgery), cert. denied, 510 U.S. 1045, 114 S.Ct. 694, 126 L.Ed.2d 661 (1994), and Spain v. Aetna Life Ins. Co.,. 11 F.3d 129, 131 (9th Cir.1993) (ERISA preempted wrongful death claim based on withdrawal of authorization for surgery) cert. denied, 511 U.S. 1052, 114 S.Ct. 1612, 128 L.Ed.2d 340 (1994)). In its Tolton decision, the Sixth Circuit went on to cite additional reasons for its holding which are also informative with respect to the case at bar and plaintiffs arguments outlined above. The court rejected the plaintiffs argument, which is also made by the plaintiff here, that ERISA does not preempt its state law claims because ERISA provides no adequate alternative remedy. Id. at 943 (citing Pilot Life Ins. Co. v. Dedeaux, 481" }, { "docid": "22832697", "title": "", "text": "also Kearney v. U.S. Healthcare, Inc., 859 F.Supp. 182, 186-87 (E.D.Pa.1994) (holding in a ease similar to those at bar that ERISA preempts plaintiffs direct negligence claim, but not its vicarious liability claim). The HMOs’ reliance on Corcoran is misplaced. Although United’s decisions in Cor-coran were in part medical decisions, United, unlike the HMOs here, did not provide, arrange for, or supervise the doctors who provided the actual medical treatment for plan participants. (Blue Cross played that role in Corcoran.) Instead, United only performed an administrative function inherent in the “utilization review.” The difference between the “utilization review” and the “arranging for medical treatment” roles is crucial for the purposes of § 502(a)(1)(B) because only in a utilization-review role is an entity in a position to deny benefits due under an ERISA welfare plan. 965 F.2d at 1333 n. 16 (noting that ERISA is implicated in “utilization review” decisions but not medical-treatment decisions because only the former are “made in connection with a cost containment plan”); see also Kuhl, 999 F.2d at 301-03 (malpractice claims against insurance company hired to perform a “pre-certification review” held to fall within § 502(a)’s civil enforcement provisions); Elsesser, 802 F.Supp. at 1290-91 (holding that the cause of action based on allegations that HMO withheld benefits were preempted, while the claims against HMO for its negligent selection, retention, and evaluation of a primary-care physician were not preempted). In these cases, the defendant HMOs play two roles, not just one. In addition to the utilization-review role played by United in Corcoran, the HMOs also arrange for the actual medical treatment for plan participants. Only this second role is relevant for this appeal, however: on the faces of these complaints there is no allegation that the HMOs somehow should be held liable for any decisions they might have made while acting in their utilization-review roles. Stated another way, unlike Corcoran, there is no allegation here that the HMOs denied anyone any benefits that they were due under the plan. Instead, the plaintiffs here are attempting to hold the HMOs liable for their role as the arrangers of" }, { "docid": "6537093", "title": "", "text": "the Supreme Court has also noted, “Some state actions may affect employee benefit plans in too tenuous, remote or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 2901 n. 21, 77 L.Ed.2d 490 (1983). Thus, “run-of-the-mill state-law claims such as unpaid rent, failure to pay creditors, or even torts committed by an ERISA plan” are not subject to ERISA preemption. Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 833, 108 S.Ct. 2182, 2187, 100 L.Ed.2d 836 (1988). Plaintiffs claim is one of those “run-of-the-mill” state claims that has too tenuous a relationship to an employee benefit plan to support a finding of preemption. In Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3d Cir.) cert. denied, — U.S. -, 116 S.Ct. 564, 133 L.Ed.2d 489 (1995), the plaintiffs. brought vicarious liability claims against an HMO in connection with the alleged negligent medical treatment that , they received from HMO doctors. The plaintiffs were not claiming that the HMO failed properly to provide them with their healthcare plan benefits, but, as in this case, that the treating physician was negligent. The Third Circuit held that the plaintiffs medical malpractice claims were not preempted by ERISA because plaintiffs claims were not “to recover [plan] benefits due ... under the terms of [the] plan, to enforce ... rights under the terms of the plan, or to clarify ... rights to future benefits under the terms of the plan.” Id. at 351-52 (quoting § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B)). See also Pacificare of Oklahoma, Inc. v. Burrage, 59 F.3d 151, 154 (10th Cir.1995) (ERISA does not preempt medical malpractice claims because doctor’s negligence can be reviewed without reference to benefit plan); Rice v. Panchal, 65 F.3d 637, 645 (7th Cir.1995) (“[T]his is a case in which ‘beyond the simple need to refer to the ... [Plan], the ... [Plan] is irrelevant to the dispute_’”); Prihoda v. Shpritz, 914 F.Supp. 113, 117-18 (D.Md.1996) (where issue is quality of service" } ]

[ { "docid": "22696461", "title": "", "text": "either the defendant or the fund awarded to the class. Mr. Justice Powell, with whom Mr. Justice Stewart joins, dissenting. Respondents are two credit card holders who claim that petitioner charged them usurious interest in violation of the National Bank Act and Mississippi law. They filed this action late in 1971 to recover those charges plus a penalty equal to the same amount, for individual totals of $683.30. and $322.70. App. 59. Respondents also sought relief on behalf of a class alleged to include 90,000 persons with claims aggregating $12 million. After four years of litigation, the District Court denied respondents’ motion for class certification. Seven months later, petitioner tendered to respondents the full amount of their individual claims plus legal interest and court costs. Over respondents’ objection, the District Court entered final judgment in their favor. Petitioner then deposited the full amount due with the Clerk of the Court. No one disputes that the petitioner has tendered everything that respondents could have recovered from it in this action. Nevertheless, the Court of Appeals, for the Fifth Circuit rejected petitioner’s suggestion of mootness and reversed the denial of class certification. This Court affirms thé judgment of the Court of Appeals, after finding that respondents retain a personal stake in sharing the expense of litigation with members of the putative class. Ante, at 334, n. 6, 336. This speculative interest simply will not sustain the jurisdiction of an Art. Ill court under established and controlling precedents. Accordingly, I dissent. I Although there are differences, this case is similar to United States Parole Comm’n v. Geraghty, post, p. 388, in one important respect: both require us to decide whether putative class representatives may appeal the denial of class certification when they can derive no benefit whatever from the relief sought in the action. Here, as in Geraghty, the District Court refused to certify a class. In this case, however, the Court recognizes established Art. Ill doctrine. It states that the “right ... to employ Rule 23” is a “procedural right only, ancillary to the litigation of substantive claims.” Ante, at 332. It" } ]

[ { "docid": "23309692", "title": "", "text": "all. On his cross-appeal, Falcon claims that the only error involved in the certification was the trial judge’s limiting of the class to Mexican-Americans who are employed at or have applied to the Irving division of General, rather than all of the divisions. Wé shall examine each of those issues in turn. The appellant bases its argument on three theories. It says the claim of the class representative was not typical of the claims of the class; that the class representative could not fairly and adequately protect the interests of the class, and that the questions of law and fact raised by the claims of the class representative were not common to the questions of law and fact raised by the claims of the class. General also argues that the failure of the trial court to hold an evidentiary hearing on this matter may, in itself, require a reversal of certification. A. Failure to Hold a Hearing General alleges that the failure to hold an evidentiary hearing on the issue of certification requires reversal of the certification, citing Satterwhite v. City of Greenville, 578 F.2d 987 (5th Cir. 1978) (en banc), vac. and remanded, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980). Falcon says, in opposition, that such a hearing was not necessary. We disagree with General’s contention that the failure to hold such a hearing, in itself, requires a reversal of certification. It is true that this Court has repeatedly stressed the importance and value of such an evidentiary hearing on the certification issue. Satterwhite v. City of Greenville, 578 F.2d 987, 998 (5th Cir. 1978) (en banc), vac. and remanded on other grounds, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980); King v. Gulf Oil Co., 581 F.2d 1184, 1186-87 (5th Cir. 1978); Huff v. N.D. Cass Co. of Alabama, 485 F.2d 710 (5th Cir. 1973). But such a hearing is important only in the context of showing whether or not a class should have been certified. If later evidence shows the decision to certify to have been a correct one, there was obviously" }, { "docid": "11496835", "title": "", "text": "relief available under § 1983, however, we vacate the retrospective portion of the court’s order calling for the reopening of previous disciplinary decisions in which inmates’ good-time credits were revoked. . The litigation in Satterwhite v. City of Greenville, 578 F.2d 987 (5th Cir.1978), provides further support for our conclusion that the reason for the expiration of the named plaintiffs individual claims does not affect the survivability of the class claims. In Satterwhite, the named plaintiff had lost on the merits of her discrimination claim, see 578 F.2d at 990, 991, and the Fifth Circuit, sitting en banc, affirmed the dismissal of the class claims because the plaintiff “was not then and is not now an appropriate representative.\" Id. at 996. The Supreme Court, without opinion, vacated and remanded the case to the Fifth Circuit for reconsideration in light of Geraghty. See 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980) (Mem.). The Fifth Circuit, on remand, sent the case back to the district court with instructions to determine “whether as set forth in Geraghty, there is still a 'live controversy' between the defendant and at least some members of the class [the plaintiff] seeks to represent. In the event that the district court determines that there is a case or controversy, then the district court ... shall determine whether the action is appropriate for class certification, and whether [the plaintiff] is a proper class representative.” Satterwhite v. City of Greenville, 634 F.2d 231, 231 (5th Cir.1981); see also Walker v. Jim Dandy Co., 638 F.2d 1330, 1335 (5th Cir.1981) (issuing similar instructions in another class action in which the named plaintiffs' individual claims had been rejected on the merits and recognizing the Supreme Court’s direction that \"the status of the individual claims is not dispositive of the class claims.”). Thus, it is apparent from the Supreme Court's remand in Satterwhite that the vitality of class claims may remain intact even though the named plaintiff's individual claims are rejected on the merits rather than dismissed for mootness." }, { "docid": "13195885", "title": "", "text": "and Lowery’s individual claims is a weighty factor militating against certification. Appellees’ Brief at 20-21. Some of our past decisions suggest that such an argument is not valid. See, e. g., Long v. Sapp, 502 F.2d 34 (5th Cir. 1974) (plaintiff, whose individual discrimination charges failed, was permitted to represent a class including all present and prospective black employees; the court stated that “the likelihood of success on the individual claims is no more proper in the determination of membership in the class than it is in determining adequacy of representation under Rule 23(a)(4).” Id. at 42); Huff v. N.D. Cass Co., 485 F.2d 710 (5th Cir. 1973) (the court stated that “the standard for determining whether a plaintiff may maintain a class action is not whether he will ultimately prevail on his claim” and that “the court should not exclude plaintiff as a representative because he cannot succeed on the merits of his individual claim.” Id. at 712. The court affirmed the district court’s dismissal of the plaintiffs’ individual claim but vacated the order dismissing the class action. Id. at 715). A recent Supreme Court decision, United States Parole Comm’r v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), seems to buttress this position. In Geraghty the plaintiff, a federal prisoner challenging parole release guidelines and seeking to represent all federal prisoners subject to those guidelines, was permitted to press the claims of the purported class, which had never been certified, despite both the district court’s rejection of the challenge on the merits and the fact that the plaintiff had been released from prison and thus was no longer affected by the guidelines. Furthermore, we note particularly the action taken by this court en banc in Satterwhite v. City of Greenville, 634 F.2d 231 (5th Cir. 1981), after that ease had been remanded by the Supreme Court, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980), for further consideration in light of Geraghty and Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980). Minda Satterwhite, like Rhoades and" }, { "docid": "23224771", "title": "", "text": "all Mexican-American applicants who had not been hired. Without holding an evidentiary hearing, the district court certified a class consisting of those employees and applicants at one of the company’s facilities. After a trial, the district court found that the employer had not discriminated against the named plaintiff in hiring, but did discriminate against him in its promotion practices. As to the class claims, the court reached the converse conclusion, finding no discrimination in promotion practices, but finding the hiring practices unlawfully discriminatory. On appeal, the Fifth Circuit, using the across-the-board approach, upheld the class certification: [The across-the-board rule] permits an employee complaining of one employment practice to represent another complaining of another practice, if the plaintiff and the members of the class suffer from essentially the same injury. In this case, all of the claims are based on discrimination because of national origin. Falcon v. General Tel. Co., 626 F.2d 369, 375 (5th Cir.1980). The Supreme Court, on certiorari, began its analysis of the case by reiterating that Title VII does not relieve a private party plaintiff seeking to represent others from meeting the requirements of the class ac tion rule : “An individual litigant seeking to maintain a class action under Title VII must meet ‘the prerequisites of numerosity, commonality, typicality, and adequacy of representation’ specified in Rule 23(a). These requirements effectively ‘limit the class claims to those fairly encompassed by the named plaintiff’s claims.’ ” General Tel. Co. v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 2369-70, 72 L.Ed.2d 740 (1982) (citations omitted). Although the Court recognized “that racial discrimination is by definition class discrimination,” it said that the mere allegation of racial discrimination cannot answer the questions posed by Rule 23(a) or define the class that may be certified: Conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s" }, { "docid": "15759927", "title": "", "text": "of examination from the elements of justiciability to the ability of the named representative to ‘fairly and adequately protect the interests of the class.’ ” 445 U.S. at 406, 100 S.Ct. at 1214 (quoting Sosna v. Iowa, supra, 419 U.S. at 419, 95 S.Ct. at 567). In short, Geraghty holds that a plaintiff who is not personally affected by challenged practices is not preemptively foreclosed from representing the class. Applying Geraghty to the case at hand, even were we to assume for purposes of argument that Abron was not personally aggrieved by unlawful promotion practices, Geraghty holds that that fact is not alone sufficient to foreclose her representation of a class composed of black persons that Black & Decker failed to promote. Instead, the focus shifts to whether she would fairly protect the interests of the class. Conceivably, Geraghty might be distinguished on the basis that the plaintiff there once had a claim “similar” to that of a class, while here, arguendo, Abron never possessed such a claim. However, the crucial fact is that even if neither Abron (for sake of argument) nor the Geraghty plaintiff has anything concrete to gain by a favorable class determination on the merits, still she or he may possess sufficient interest to act as a class representative. As stated by the Third Circuit, “we can perceive no reasoned distinction between the personal stake of a person whose claim is mooted and one whose claim is without substantive merit.” Alexander v. Gino’s, Inc., 621 F.2d 71, 73 (3d Cir. 1980), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980). The Supreme Court’s recent decision in Satterwhite v. City of Greenville, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980), vacating and remanding 578 F.2d 987 (5th Cir. 1978) (en banc), on remand, 634 F.2d 231 (5th Cir. 1981) (en banc), confirms that conclusion. In Satterwhite the named plaintiff, a woman denied a position as Greenville’s airport manager, brought a sex discrimination class suit on behalf of herself and applicants and employees of the city. The district court denied certification and proceeded" }, { "docid": "4442775", "title": "", "text": "prerequisites include: 1) a class so numerous that joinder of all members is impracticable; 2) questions of law or fact common to the class; 3) typicality between the claims of the representative and the claims of the other class members; and 4) a representative, including his or her attorney, who will fairly and adequately represent the interests of the class. Fed.R.Civ.P. 23(a). Fleming’s suit is brought under Fed.R.Civ.P. 23(b)(2) which requires, in addition, a showing that the defendant Travenol acted, or refused to act, on grounds generally applicable to all the members of the class. Fleming’s apparent reliance below on the Fifth Circuit’s “across-the-board” approach to Title VII class action suits is no longer legally sound. Although this circuit formerly permitted victims of employment discrimination to maintain an “across-the-board” attack on all unequal employment practices alleged to have been committed by the employer pursuant to a policy of discrimination, Payne v. Travenol Laboratories, Inc., 565 F.2d 895 (5th Cir.), cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir.1969), that practice was limited by the United States Supreme Court in General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). In reversing the Fifth Circuit’s allowance of an across-the-board class action attack, the Court stated explicitly that a “Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Falcon, 102 S.Ct. at 2373. Moreover, the class representative must be part of the class and possess the same interests and suffer the same injury as the class members. Falcon, 102 S.Ct. at 2370; East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977). Here we have no factual basis for determining whether the numerosity requirement has been met. The mere allegation that the class is too numerous to make joinder practicable, by itself, is not sufficient to meet" }, { "docid": "22846912", "title": "", "text": "defendants and at least some unnamed member of the plaintiffs’ purported classes. As the Court recently explained in United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), the mootness doctrine has two aspects: a justiciable case must continue at each stage of the litigation (1) to present a “live controversy,” and (2) to be urged before the court by parties who have a “personal stake” in that controversy. 415 U.S. at 396. The controversy involved in this case is undoubtedly still live despite the mootness of the named plaintiffs’ individual claims. The classes which the plaintiffs seek to represent contain at least some number of persons who sold B&W securities during the periods at issue. If the named plaintiffs or their successors establish their case on the merits, these persons will be entitled to recover damages from the defendants. Whether the plaintiffs will actually prevail on the merits is of course irrelevant to the mootness question. Cruz v. Hauk, 627 F.2d 710, 715 (5th Cir. 1980). The case before us, therefore, rests not on whether there exists a live controversy, but on whether the district court has before it some plaintiff with a personal stake in that controversy. Cf. Satterwhite v. City of Greenville, 634 F.2d 231 (5th Cir. 1981) (en banc) (remanding to the district court, because of the inadequate development of the record, for a determination of whether a live controversy existed in the case). 2. Do the named plaintiffs have standing to bring this appeal? In the second place, no question has been raised as to the named plaintiffs’ standing to appeal the district court’s refusal to certify a purported class. This issue has been resolved in favor of the plaintiffs by the Supreme Court’s recent decisions in Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), and United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). Roper involved a factual situation similar to that now before us. In Roper, two credit card holders sued the" }, { "docid": "23309725", "title": "", "text": "the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. . See also Satterwhite v. City of Greenville, 578 F.2d 987, 993-994 n.8 (5th Cir. 1978) (en banc), vac. and remanded, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980) in which this Court said: . . . Nor is Rodriguez or this opinion contrary to the policy favoring “across the board” Title VII class actions. See Johnson v. Georgia Highway Express [417 F.2d 1122 (5th Cir.)], supra. It is not necessary that the representative suffer discrimination in the same way as other class members, but it is necessary that she suffer from the discrimination in some respects. As noted, Satterwhite was subsequently vacated and remanded by the Supreme Court. In Satterwhite, a job bias claimant, an applicant for city employment, had been denied the right to represent a class of present and future city employees because she was not a member of the proposed class. The Supreme Court remanded the case for reconsideration in the light of two recent cases, Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) and U.S. Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), which broadened the possible use of class actions when the named plaintiffs claim had become moot. Therefore, it seems that the Supreme Court’s remand did nothing to question the rule in this Court that “across the board” actions can still be brought. . On the adequacy of representation issue, General also argues that there was no evidence to show the qualifications of the attorneys who represented the class. While it is true that the requirement of adequate representation includes the competence of the legal counsel of the representatives, Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th" }, { "docid": "23309695", "title": "", "text": "of Rule 23(a) , most of these claims are based on the appellant’s contention that Falcon, who was complaining of discrimina tion with respect to promotion, could not represent a class complaining of discrimination with respect to hiring. General maintains that according to East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977), Falcon cannot represent both hiring and promotional discriminatees because he has not established a sufficient nexus between his claims of promotional discrimination and the other class members’ claims of hiring discrimination. See also Scott v. University of Delaware, 601 F.2d 76 (3rd Cir.), cert. denied 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 189 (1979); Hill v. Western Electric Co., Inc., 596 F.2d 99 (4th Cir.), cert. denied 444 U.S. 929, 100 S.Ct. 271, 62 L.Ed.2d 186 (1979). In contrast, Falcon argues that this Court has not interpreted the nexus requirement of East Texas Motor Freight as restrictively as other courts and that, therefore, this action was properly certified under this Court’s standards. See Payne v. Travenol Laboratories, Inc., 565 F.2d 895 (5th Cir.), cert. denied 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978); Vuyanich v. Republic National Bank of Dallas, 82 F.R.D. 420 (N.D.Tex.1979); Satterwhite v. City of Greenville, 578 F.2d 987 (5th Cir. 1978) (en banc), vac. and remanded 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980). Falcon’s position is essentially that this Court still permits “across the board” attacks on discrimination. We agree. In Payne v. Travenol Laboratories, Inc.; supra, this Court said: Plaintiffs’ action is an “across the board” attack on unequal employment practices alleged to have been committed by Travenol pursuant to a policy of racial discrimination. As parties who have allegedly been aggrieved by some of these discriminatory practices, plaintiffs have demonstrated a sufficient nexus to enable them to represent other class members suffering from different practices motivated by the same policies. (Citations omitted) It is therefore apparent that this Court permits an employee complaining of one employment practice to represent another complaining of another practice, if the plaintiff" }, { "docid": "13195888", "title": "", "text": "(5th Cir. 1978). The Supreme Court, without opinion, reversed and remanded our disposition of Satterwhite’s claim for further consideration in light of Roper and Geraghty. Both of those opinions focus on class action issues; neither, however, addresses the “adequate nexus” issue. On remand, this court, again sitting en banc, sent Satterwhite back to the trial court. We instructed the court to determine, after considering further evidence as it deemed appropriate, whether there was a “live” controversy between the City of Greenville and at least some members of the class Satterwhite sought to represent. If it found such a controversy, the district court was then to determine whether class certification was appropriate and, if so, who should litigate the class claims. The Satterwhite ease is sufficiently analagous to the one here to warrant similar instructions. We emphasize, however, that Geraghty and Roper (and perhaps Satterwhite) suggest simply that the status of the individual claims is not dispositive of the class claims. A different question, however, concerns the characteristics of the named plaintiff as representative of the class. It is well established that “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members” in order to satisfy the requirements of Fed.R.Civ.P. 23(a). East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1976). In Rodriguez, the Supreme Court held that the named plaintiffs were not proper representatives because, inter alia, they lacked the qualifications for the positions they sought and thus could not have been injured by the alleged discriminatory employment practices. The Court dismissed the class claim and concluded: We are not unaware that suits alleging racial or ethnic discrimination are often by their very nature class suits, involving classwide wrongs. Common questions of law or fact are typically present. But careful attention to the requirements of Fed.R.Civ.P. 23 remains nonetheless indispensable. The mere fact that a complaint alleges racial or ethnic discrimination does not itself ensure that the party who has brought the lawsuit will be an adequate representative of" }, { "docid": "16260083", "title": "", "text": "431 U.S. 395, 406 n.12, 97 S.Ct. 1891, 1898 n.12, 52 L.Ed.2d 453 (1977). In addition, the Supreme Court has recently held that the expiration of a named plaintiffs individual claim does not moot or destroy putative class claims, and that such a plaintiff has standing to appeal a denial of class certification. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). See Satterwhite v. City of Greenville, 578 F.2d 987 (5th Cir. 1978) (en banc) (holding that named plaintiff who lost her individual Title VII claim on the merits before class certification could not represent the putative class), vacated and remanded, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980), on remand, 634 F.2d 231 (5th Cir. 1981) (en banc). . See note 2, supra. . Fed.R.Civ.P. 24(a): Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. . Fed.R.Civ.P. 24(b): Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay" }, { "docid": "15759919", "title": "", "text": "118 Cong.Rec. 7168, 7170, 7573 (1972). In the face of such explicit congressional endorsement of the role and importance of class actions in combatting employment discrimination, we should not adopt a procedural limitation which would destroy the utility of the class action as a device to effectuate Title VII’s “broad remedial purposes.” See, e. g., International Brotherhood of Teamsters v. United States, supra, 431 U.S. at 348-49, 97 S.Ct. at 1861; Falcon v. General Tel. Co. of the Southwest, 626 F.2d 369, 375 (5th Cir. 1980), vacated and remanded on other grounds,-U.S.-, 101 S.Ct. 1752, 68 L.Ed.2d 234 (1981). D. In light of the substantial body of civil rights law concerning racial injury, it is clear that Rodriguez did not propose or authorize either a substantive cutback in the remedies available to Title VII plaintiffs nor propose to limit the availability of an across-the-board action to them. See Satterwhite v. City of Greenville, 578 F.2d 987, 993 n.8 (5th Cir. 1978) (en banc) (“Nor is Rodriguez or this opinion contrary to the policy favoring ‘across the board’ Title VII class actions. ... It is not necessary that the representative suffer discrimination in the same way as other class members, but it is necessary that she suffer from the discrimination in some respect.”), vacated and remanded on other grounds, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980), on remand, 634 F.2d 231 (5th Cir. 1981) (en banc). On the contrary, while ruling that Title VII plaintiffs must do more than merely allege discrimination in order to demonstrate their adequacy as representatives, the Court carefully acknowledged the customary class nature of Title VII claims. We are not unaware that suits alleging racial or ethnic discrimination are often by their very nature class suits, involving classwide wrongs. Common questions of law or fact are typically present. . . . [But] [t]he mere fact that a complaint alleges racial or ethnic discrimination does not in itself ensure that the party who has brought the lawsuit will be an adequate representative of those who may have been the real victims of that discrimination." }, { "docid": "4442776", "title": "", "text": "Express, Inc., 417 F.2d 1122 (5th Cir.1969), that practice was limited by the United States Supreme Court in General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). In reversing the Fifth Circuit’s allowance of an across-the-board class action attack, the Court stated explicitly that a “Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Falcon, 102 S.Ct. at 2373. Moreover, the class representative must be part of the class and possess the same interests and suffer the same injury as the class members. Falcon, 102 S.Ct. at 2370; East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977). Here we have no factual basis for determining whether the numerosity requirement has been met. The mere allegation that the class is too numerous to make joinder practicable, by itself, is not sufficient to meet this prerequisite. We likewise have only broad, general allegations to support the common questions of law or fact and the typicality requirements. Fleming’s only specific factual allegation is her suspension and discharge from Travenol. The unsupported allegations of discrimination include the failure to recruit and hire females, the denial of equal job opportunities, the failure to transfer or promote females, and the use of subjective, non-job related hiring criteria, all of which adversely affect females. These allegations, even if true, are not applicable to Fleming, the proposed class representative. She was, in fact, hired, and she was offered the same jobs as her fellow male employee, Sutton. She thus suffered no denial of opportunities based on her sex. Her acceptance of one of the three proffered second-shift jobs would have constituted both a transfer and a promotion; thus the failure to promote and transfer allegation is not typical of her own claim. Faced with a complete lack of data, evidence, memoranda or anything other than the allegations of Fleming’s complaint, the district court correctly denied" }, { "docid": "5692655", "title": "", "text": "that the Bank discriminated against (1) black applicants for nonexempt jobs from 1969-1974; (2) female applicants for exempt jobs from 1969-1974; .(3) black employees in pay from 1973-1978; (4) black exempt employees in promotion and placement from 1973-1978; (5) black and female nonexempt employees in promotion and placement from 1969-1978; and (6) female employees in maternity leave practices during 1969-1970. The court dismissed the plaintiffs’ claims of discrimination in hiring, pay, promotion, placement, maternity leave practices, and terminations. II Following Fifth Circuit precedent, the district court relied on the across-the-board theory of class certification. See 505 F.Supp. at 234-37. After the district court rendered its decision, however, the Supreme Court, in reversing a panel of this court, ruled that the across-the-board theory is appropriate only in limited instances. General Telephone Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 2371 & n. 15, 72 L.Ed.2d 740 (1982), rev’g 647 F.2d 633 (5th Cir.1981). Falcon teaches that an allegation of discrimination neither determines the appropriateness of a class action nor defines the scope of any potential class. 102 S.Ct. at 2371. Conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claims will share common questions of law or fact and that the individual’s claim will be typical of the class claims. Id. (footnote omitted). The Court reiterated the rule that the requirements of Rule 23(a) “limit the class claims to those fairly encompassed by the named plaintiff’s claims.” Id. at 2370 (quoting General Telephone Co. v. EEOC, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). In addition, a class representative must “possess the same interest and suffer the same injury” as the class members. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2929-30, 41 L.Ed.2d 706 (1974); see also East Texas" }, { "docid": "13195893", "title": "", "text": "or ethnic discrimination are often by their very nature class suits, evidencing classwide wrongs. Common questions of law or fact are typically present. East Texas Motor Freight v. Rodriguez, 431 U.S. at 405, 97 S.Ct. at 1897; see Huff v. N.D. Cass Co., 485 F.2d at 713-14. The district court’s order dismissing Walker’s claim is thus reversed, the order dismissing Rhoades’ and Lowery’s individual claims is affirmed, and the class action issue is remanded for further consideration consistent with this opinion. REVERSED in part; AFFIRMED in part, and REMANDED in part. . Walker does not contest the dismissal of his § 1981 claim or the denial of his request for class certification. Accordingly, we intimate no view on the court’s disposition of those issues. . Nothing in United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) requires an opposite conclusion. In Evans the charge was not filed until almost 4 years after the discriminatory act. Noting that the charge was not timely filed, Justice Stevens categorized the discriminatory act as “an unfortunate event in history which has no present legal consequences.” Id. at 558, 97 S.Ct. at 1889. Jim Dandy urges that Evans implicitly answers the question left open in Robbins & Myers. That argument is without merit. Evans’ charge was untimely even when measured against the expanded limitations period. It cannot be said that by noting the obvious the Court meant to intimate an opinion on the clearly different situation presented here. . For purposes of applying the 180 day period a charge is pending before the EEOC until such time as final action has been taken by the Commission. See Inda v. United Air Lines, Inc., 565 F.2d 554, 561 (9th Cir. 1977). Jim Dandy contends that a charge that was untimely could not have been “pending.” This argument was offered and rejected in Robbins & Myers, 429 U.S. at 242, 97 S.Ct. at 449. . The holding in Geraghty was intentionally narrow: We need not decide here whether Geraghty is a proper representative for the purpose of representing the class" }, { "docid": "15759928", "title": "", "text": "if neither Abron (for sake of argument) nor the Geraghty plaintiff has anything concrete to gain by a favorable class determination on the merits, still she or he may possess sufficient interest to act as a class representative. As stated by the Third Circuit, “we can perceive no reasoned distinction between the personal stake of a person whose claim is mooted and one whose claim is without substantive merit.” Alexander v. Gino’s, Inc., 621 F.2d 71, 73 (3d Cir. 1980), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980). The Supreme Court’s recent decision in Satterwhite v. City of Greenville, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980), vacating and remanding 578 F.2d 987 (5th Cir. 1978) (en banc), on remand, 634 F.2d 231 (5th Cir. 1981) (en banc), confirms that conclusion. In Satterwhite the named plaintiff, a woman denied a position as Greenville’s airport manager, brought a sex discrimination class suit on behalf of herself and applicants and employees of the city. The district court denied certification and proceeded to find that her individual claim was without merit. Affirming, the Fifth Circuit, sitting en banc, determined that since “Mrs. Satterwhite has never suffered any legally cognizable injury either in common with the class or otherwise,” under Rodriguez she .was not a proper representative of a class whose members did suffer injury. 578 F.2d at 992. The Supreme Court reversed and remanded for reconsideration in light of Geraghty and Roper. On remand, the Fifth Circuit interpreted the Supreme Court mandate to require it to return the case to the district court in order to determine whether the “action is a proper class action” and whether “Mrs. Satterwhite is an appropriate class representative.” 634 F.2d at 231. Despite the majority’s suggestion, no other circuit court has reached the result proposed in the instant case. Indeed, nearly every circuit has embraced the concept of across-the-board class certification. Gray v. Greyhound Lines, East, supra, 545 F.2d at 176 (D.C.Cir.1976); Lamphere v. Brown University, 553 F.2d 714, 719 (1st Cir. 1977); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d" }, { "docid": "4957703", "title": "", "text": "is axiomatic that in order to pursue an action on behalf of a class, the purported “representative must be part of the class and ‘possess the same injury’ as the class members,” East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977); Walker v. Jim Dandy Co., supra at 1335, and where the named plaintiff or representative is not an adequate representative, a class action should not be certified. Fed.R. Civ.P. 23(a). It is well settled further than even after certification, the district court has a duty to continually “scrutinize the adequacy of representation and withdraw certification if sufficient representation is not furnished.” DeGrace v. Rumsfeld, 614 F.2d 796, 808-811 (1st Cir. 1980); Grigsby v. North Mississippi Medical Center, Inc., 586 F.2d 457, 462 (5th Cir. 1978); Guerine v. J & W Inv., Inc., 544 F.2d 863, 864 (5th Cir. 1977); Gonzales v. Cassidy, 474 F.2d 67, 75 n.15 (5th Cir. 1973); Eisen v. Carlisle and Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968). See also United States Parole Comm’n v. Geraghty, 445 U.S. 388, 407, 100 S.Ct. 1202, 1214, 63 L.Ed.2d 479 (1980); Ford v. United States Steel Corp., 638 F.2d 753, 761-62 (5th Cir. 1981); Satterwhite v. City of Greenville, 634 F.2d 231 (5th Cir. 1981) (en banc); Armour v. City of Anniston, 622 F.2d 1226 (5th Cir. 1980). Cf. East Texas Motor Freight v. Rodriguez, supra, 431 U.S. at 406 n.12, 97 S.Ct. at 1898 n.12. The Court can also appoint a class representative, although not originally a named plaintiff, as long as the representative which the Court appoints satisfies Rule 23(a)(4). This is so because once certified, a class acquires an independent legal status separate from its named representative and the interests the representative asserts. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). As stated earlier, the parties urge the Court to decertify the conditionally certified class on the additional ground that plaintiff is an inadequate class representative. In support of their contention, the parties assert that because of plaintiff’s long absence from" }, { "docid": "16260082", "title": "", "text": "a case, the class claims would have already been tried, and, provided the initial certification was proper and decertification not appropriate, the claims of the class members would not need to be mooted or destroyed because subsequent events or the proof at trial had undermined the named plaintiffs’ individual claims. See, e. g., Franks v. Bowman Transportation Co., 424 U.S. 747, 752-757, 96 S.Ct. 1251, 1258-60, 47 L.Ed.2d 444 (1976); Moss v. Lane Co., 471 F.2d 853, 855-856 (CA4). Where no class has been certified, however, and the class claims remain to be tried, the decision whether the named plaintiffs should represent a class is appropriately made on the full record, including the facts developed at the trial of the plaintiffs’ individual claims. At that point, as the Court of Appeals recognized in this case, “there [are] involved none of the imponderables that make the [class-action] decision so difficult early in litigation.” 505 F.2d at 51. See also Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15-16 (CA4). East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 406 n.12, 97 S.Ct. 1891, 1898 n.12, 52 L.Ed.2d 453 (1977). In addition, the Supreme Court has recently held that the expiration of a named plaintiffs individual claim does not moot or destroy putative class claims, and that such a plaintiff has standing to appeal a denial of class certification. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). See Satterwhite v. City of Greenville, 578 F.2d 987 (5th Cir. 1978) (en banc) (holding that named plaintiff who lost her individual Title VII claim on the merits before class certification could not represent the putative class), vacated and remanded, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980), on remand, 634 F.2d 231 (5th Cir. 1981) (en banc). . See note 2, supra. . Fed.R.Civ.P. 24(a): Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating" }, { "docid": "13195886", "title": "", "text": "dismissing the class action. Id. at 715). A recent Supreme Court decision, United States Parole Comm’r v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), seems to buttress this position. In Geraghty the plaintiff, a federal prisoner challenging parole release guidelines and seeking to represent all federal prisoners subject to those guidelines, was permitted to press the claims of the purported class, which had never been certified, despite both the district court’s rejection of the challenge on the merits and the fact that the plaintiff had been released from prison and thus was no longer affected by the guidelines. Furthermore, we note particularly the action taken by this court en banc in Satterwhite v. City of Greenville, 634 F.2d 231 (5th Cir. 1981), after that ease had been remanded by the Supreme Court, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980), for further consideration in light of Geraghty and Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980). Minda Satterwhite, like Rhoades and Lowery here, sought to represent a class of those who allegedly had been denied employment by the city of Greenville because of their sex. The district court, finding that Satterwhite was not offered the job because of an apparent conflict of interest and therefore that she was not a victim of sex discrimination, denied class certification and ruled against Satterwhite on the merits. Satterwhite v. City of Greenville, 395 F.Supp. 698 (N.D.Tex.1975). After a number of appellate hearings, this court en banc held that Satterwhite was not a proper class representative because she did not have claims in common, and thus lacked an adequate nexus, with the proposed class. Furthermore, we held that because (1) Satterwhite had never been a member of the putative class of discriminatees; (2) no potential member of the alleged class came forward to assert the cause; and (3) no class had been certified, the requirements of Rule 23 had not been satisfied. Consequently, we instructed the district court to dismiss the complaint. Satterwhite v. City of Greenville, 578 F.2d 987" }, { "docid": "11496834", "title": "", "text": "part of the court’s injunctive order, which is permissible relief under § 1983, see Edwards, 117 S.Ct. at 1589, an injunction to restore revoked good-time credits may only be sought in ha-beas corpus proceedings. See Preiser v. Rodriguez, 411 U.S. 475, 487, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). The plaintiffs argue that the court’s retrospective injunction is only a mechanism for providing notice to class members who may want to pursue habeas proceedings, but this is not a fair reading of the district court’s order. The order plainly contemplates the reopening of past Adjustment Committee decisions that revoked prisoners’ good-time credits. The order offers the prison a choice of how to proceed—it may either hold new hearings or simply restore outright the previously revoked credits—but both alternatives imply the invalidity of the earlier revocation proceedings. We therefore vacate this portion of the district court’s injunctive award. For the reasons given above, we affirm the court’s entry of summary judgment in favor of the plaintiff class. Because of the limitations on the scope of relief available under § 1983, however, we vacate the retrospective portion of the court’s order calling for the reopening of previous disciplinary decisions in which inmates’ good-time credits were revoked. . The litigation in Satterwhite v. City of Greenville, 578 F.2d 987 (5th Cir.1978), provides further support for our conclusion that the reason for the expiration of the named plaintiffs individual claims does not affect the survivability of the class claims. In Satterwhite, the named plaintiff had lost on the merits of her discrimination claim, see 578 F.2d at 990, 991, and the Fifth Circuit, sitting en banc, affirmed the dismissal of the class claims because the plaintiff “was not then and is not now an appropriate representative.\" Id. at 996. The Supreme Court, without opinion, vacated and remanded the case to the Fifth Circuit for reconsideration in light of Geraghty. See 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980) (Mem.). The Fifth Circuit, on remand, sent the case back to the district court with instructions to determine “whether as set forth in" } ]

[ { "docid": "22755631", "title": "", "text": "Justice Brennan delivered the opinion of the Court. The question presented by these cases is whether application of the withdrawal liability provisions of the Multi- employer Pension Plan Amendments Act of 1980 to employers withdrawing from pension plans during a 5-month period prior to the statute’s enactment violates the Due Process Clause of the Fifth Amendment. We hold that it does not. I — I <C In 1974, after careful study of private retirement pension plans, Congress enacted the Employee Retirement Income Security Act (ERISA), 88 Stat. 829, 29 U. S. C. § 1001 et seq. Among the principal purposes of this “comprehensive and reticulated statute” was to ensure that employees and their beneficiaries would not be deprived of anticipated retirement benefits by the termination of pension plans before sufficient funds have been accumulated in the plans. Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U. S. 359, 361-362, 374-375 (1980). See Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 510-511 (1981). Congress wanted to guarantee that “if a worker has been promised a defined pension benefit upon retirement — and if he has fulfilled whatever conditions are required to obtain a vested benefit — he actually will receive it.” Nachman, supra, at 375; Alessi, supra, at 510. Toward this end, Title IV of ERISA, 29 U. S. C. § 1301 et seq., created a plan termination insurance program, administered by the Pension Benefit Guaranty Corporation (PBGC), a wholly owned Government corporation within the Department of Labor, § 1302. The PBGC collects insurance premiums from covered pension plans and provides benefits to participants in those plans if their plan terminates with insufficient assets to support its guaranteed benefits. See §§1322, 1361. For pension plans maintained by single employers, the PBGC’s obligation to pay benefits took effect immediately upon enactment of ERISA in 1974. §§ 1381(a), (b). For multiemployer pension plans, however, the payment of guaranteed benefits by the PBGC was not to become mandatory until January 1, 1978. § 1381(c)(1). During the intervening period, the PBGC had discretionary authority to pay benefits upon the termination of multi-employer pension plans. §§" } ]

[ { "docid": "1281584", "title": "", "text": "additional inquiry and that Appellants may qualify for equitable tolling of the time limit. For these reasons we will vacate and remand. I. The MPPAA, amended to the Employee Retirement Income Security Act of 1974 (ERISA), Pub.L. No. 93-406, 88 Stat. 829 (codified as amended in scattered sections of 5,18, 26, 29, 31 & 42 U.S.C., 1988 & Supp. IV 1992), regulates multiemployer pension plans. “Congress enacted MPPAA in particular because it found that existing legislation ‘did not adequately protect plans from the adverse consequences that resulted when individual employers terminated] their participation in, or withdr[e]w from, multiemployer plans.’” Flying Tiger Line v. Teamsters Pension Trust Fund, 830 F.2d 1241, 1243 (3d Cir.1987) (quoting Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 722, 104 S.Ct. 2709, 2714, 81 L.Ed.2d 601 (1984)) (alteration in original). The act sets rules for determining responsibility for a plan’s unfunded liabilities when an employer withdraws from the plan, and for collecting such liability. Withdrawal liability is calculated and assigned as set forth in 29 U.S.C. §§ 1381-1399. When an employer withdraws from a multiemployer pension fund, it is liable for a pro rata share of the unfunded benefits the plan owes the employees. 29 U.S.C. §§ 1381, 1391. All entities under common control with a contributing employer, as defined under Internal Revenue Code standards, are treated as a single employer. Id. § 1301(b)(1). The plan sponsor calculates withdrawal liability, notifies the employer, and demands payment. Id. § 1399(b)(1). The employer may request that the plan sponsor review its determination, and, if the review is unsatisfactory or not timely, may initiate arbitration within a set period of time. Id. § 1401(a)(1). If no arbitration proceeding is initiated within the time limit (whose proper calculation is at issue in this case, as discussed infra at Part V), “the amounts demanded by the plan sponsor ... shall be due and owing,” and the plan sponsor may bring a collection action in court. Id. § 1401(b)(1). II. Arrow, a trucking firm, was a contributing member of Teamsters Pension Trust Fund of Philadelphia. Paul S. Doherty" }, { "docid": "12098437", "title": "", "text": "BOGGS, Circuit Judge. Central States, Southeast and Southwest Areas Pension Fund appeals the district court’s decision reducing the amount of withdrawal liability assessed against Mason and Dixon Tank Lines, Inc. under the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1371, as amended by the Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. § 1381-1461. Because the issues addressed by the district court should have initially been submitted to arbitration, we reverse. I We begin with a brief overview of the statutory scheme governing employee pension benefits. In 1974, Congress enacted the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1371 (ERISA), to reassure employees who had been promised a pension benefit upon retirement that they would receive it. Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 213-14, 106 S.Ct. 1018, 1020, 89 L.Ed.2d 166 (1986); Nachman Cory. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 375, 100 S.Ct. 1723, 1733, 64 L.Ed.2d 354 (1980). Unfortunately, ERISA did not completely live up to its drafters’ expectations. In particular, the statute did not adequately address the adverse consequences that would occur when an employer withdrew from a multiemployer pension plan. As the Supreme Court explained in Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984): A key problem of ongoing multiemployer plans, especially in declining industries, is the problem of employer withdrawal. Employer withdrawals reduce a plan’s contribution base. This pushes the contribution rate for remaining employers to higher and higher levels in order to fund past service liabilities, including liabilities generated by employers no longer participating in the plan, so-called inherited liabilities. The rising costs may encourage — or force — further withdrawals, thereby increasing the inherited liabilities to be funded by an ever-decreasing contribution base. This vicious downward spiral may continue until it is no longer reasonable or possible for the pension plan to continue. Id. at 723 n. 2, 104 S.Ct. at 2714 n. 2 (quoting Pension Plan Termination Insurance Issues: Hearings before the Subcommittee on Oversight of the House Committee on" }, { "docid": "18780199", "title": "", "text": "administering a Chapter XI arrangement). Compare In re Straus-Duparquet, Inc., 386 F.2d 649 (2d Cir.1967) (severance pay is an administrative expense because the claim arises solely from the termination of employment); with In re Mammoth Mart, 536 F.2d 950 (1st Cir.1976) (where severance pay is based upon the length of service, the portion earned post-petition is entitled to administrative expense status). . MPPAA § 3, 29 U.S.C. § 1001a(c) (1985) provides: It is hereby declared to be the policy of the Act— (1) to foster and facilitate interstate commerce. (2) to alleviate certain problems which tend to discourage the maintenance and growth of multiemployer pension plans. (3) to provide reasonable protection for the interests of participants and beneficiaries of financially distressed multiemployer pension plans, and (4) to provide a financially self-sufficient program for the guarantee of employee benefits under multiemployer plans. The legislative history is even more explicit: The primary purpose of the [MPPAA] is to protect retirees and workers who are participants in [multiemployer] plans against the loss of their pensions.... [The bill] requires employers who withdraw from a multiem-ployer plan, or who experience severe declines in their covered operations under the plan, to continue to fund their fair share of the plan’s unfunded benefit obligations. H.R.REP. NO. 869, 96th Cong., 2d Sess. Part I 51-52, reprinted in 1980 U.S.CODE CONG. & AD.NEWS 2918, 2919-2920 [“H.R.REP. No. 869\"] (emphasis added). .ERISA § 4201(b)(1), 29 U.S.C. § 1381(b)(1) (1985) provides: The withdrawal liability of an employer to a plan is the amount determined under section § 1391 to be the allocable amount of unfunded vested benefits, adjusted ... . ERISA § 4201(a), 29 U.S.C. § 1381(a) (1985) provides: If an employer withdraws from a multi-em-ployer plan in a complete withdrawal or a partial withdrawal, then the employer is liable to the plan in the amount determined under this part to be the withdrawal liability. . A complete withdrawal occurs when an employer: (1) permanently ceases to have an obligation to contribute under the plan or (2) permanently ceases all covered operations under the plan. ERISA § 4203(a), 29 U.S.C. §" }, { "docid": "8574999", "title": "", "text": "problems, Congress established a system for computing and assessing the liability of employers who withdraw from pension plans. 29 U.S.C. § 1361, et seq. This system is designed to make employers pay their share of the real cost of pensions, by paying a share of the difference between the assets already contributed and the vested benefit liability. R.A. Gray & Co., 467 U.S. at 723, 104 S.Ct. at 2714-15, 81 L.Ed.2d at 607. When an employer withdraws from a multiemployer pension plan, such as the one administered by the Fund, ERISA requires a withdrawing employer to compensate a pension plan for benefits that have already vested with the employees at the time of the employer’s withdrawal. Id. 467 U.S. at 724, 104 S.Ct. at 2715, 81 L.Ed.2d at 608. This “withdrawal liability” is assessed against the employer to “ensure that employees and their beneficiaries [are not] deprived of anticipated retirement benefits by the termination of pension plans before sufficient funds have been accumulated in the plans.” Id. 467 U.S. at 720, 104 S.Ct. at 2713, 81 L.Ed.2d at 605. However, because of the enactment of the Deficit Reduction Act of 1984, Pub.L. 98-369, § 558, 98 Stat. 494, 899 (1984), into law, any employer who withdrew from a multiemployer pension plan prior to September 26, 1980 (the date the MPPAA was enacted) could not be assessed withdrawal liability. Employer challenges to withdrawal liability assessments are committed to a complex statutory procedure requiring review by the Fund followed by arbitration. 29 U.S.C. §§ 1382, 1399, 1401. B. Complete Withdrawal In accordance with the requirements of ERISA, as amended by the MPPAA, “[i]f an employer withdraws from a multiem-ployer plan in a complete withdrawal ... then the employer is liable to the plan in the amount determined ... to be the withdrawal liability.” 29 U.S.C. § 1381(a). “The term ‘complete withdrawal’ means a complete withdrawal described in section 1383 of this title.” 29 U.S.C. § 1381(b)(2). “[A] complete withdrawal from a multiem-ployer plan occurs when an employer — (1) permanently ceases to have an obligation to contribute under the plan, or (2)" }, { "docid": "15362875", "title": "", "text": "employers when they withdraw from a multiemployer pension fund. See H. C. Elliott, Inc. v. Carpenters Pension Trust Fund for N. Cal, 859 F.2d 808, 809-12 (9th Cir.1988); see also Concrete Pipe & Prods, of Cal, Inc. v. Constr. Laborers Pension Trust for S. Cal, 508 U.S. 602, 607-611, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993). In a nutshell, ERISA, which was enacted in 1974, was intended to protect employees covered by pension plans from being deprived of anticipated benefits because of employer underfunding. When it turned out to do so inadequately, MPPAA was enacted in 1980 to reduce an employer’s incentive to terminate its affiliation with a multiemployer pension plan by requiring employers who do withdraw to pay the unfunded vested benefits attributable to the withdrawing employers’ participation. MPPAA imposes withdrawal liability on an “employer” that withdraws from a multiemployer pension plan. 29 U.S.C. § 1381. The statute does not define “employer.” While Title I of ERISA does have a definition, 29 U.S.C. § 1002(5), it does not directly apply to Title IV, which contains MPPAA. Drawing on Title I’s definition, however, many courts have held that the term “employer” means “a person who is obligated to contribute to a plan either as a direct employer or in the interest of an employer of the plan’s participants.” See Korea Shipping Corp. v. N.Y. Shipping Ass’nr-Int’l Longshoremen’s Ass’n Pension Trust Fund, 880 F.2d 1531, 1537 (2d Cir.1989); Carriers Container Council, Inc. v. Mobile S.S. Ass’n Inc.Int’l Longshoreman’s Ass’n, AFL-CIO Pension Plan and Trust, 896 F.2d 1330, 1343 (11th Cir.1990); Seaway Port Auth. of Duluth v. Duluth-Superior ILA Marine Ass’n Restated Pension Plan, 920 F.2d 503, 507 (8th Cir.1990); Cent. States, Se. and Sw. Areas Pension Fund v. Cent. Transp., Inc., 85 F.3d 1282, 1287 (7th Cir. 1996); Cent. States, Se. and Sw. Areas Pension Fund v. Int’l Comfort Prods., LLC, 585 F.3d 281, 284-85 (6th Cir.2009). There is no question that M & M was the signatory entity and Simas Floor was not. This means that M & M was the “employer” for purposes of § 1381. But both parties" }, { "docid": "18813749", "title": "", "text": "Income Security Act of 1974 (ERISA) as amended by the Multi-employer Pension Plan Amendments Act of 1980 (MPPAA), 29 U.S.C. §§ 1001-1461 (1988 & Supp. IV 1992). The MPPAA requires an employer that withdraws from a multiemployer pension plan to pay its proportionate share of the plan’s unfunded vested employee benefits, the so-called withdrawal liability. See 29 U.S.C. §§ 1381 (1988), 1391 (1988 & Supp. IV 1992). Following Bank Line and Safmarine’s joint request for reconsideration, the Fund reaffirmed its determination imposing withdrawal liability on them. Bank Line and Safma-rine timely commenced arbitration, as required by 29 U.S.C. § 1401 (1988), which Safbank joined because its contribution history depends on whether it is a successor to Bank Line and Safmarine. On April 27, 1992 the arbitrator sustained the Fund’s determination. The following month the parties brought separate actions that were consolidated in the district court. Shortly thereafter, in June 1992, the Fund moved to confirm and enforce the arbitration award; Bank Line, Safmarine, and Safbank cross-moved to vacate the award, and for summary judgment on their claim that Bank Line and Safmarine were not subject to MPPAA’s withdrawal liability provisions. Judge Leisure, in an order and thorough opinion dated December 7, 1992, confirmed the arbitration award and denied the cross-motion to vacate and for summary judgment. See 810 F.Supp. 522 (S.D.N.Y.1992). On March 15, 1993 the district judge issued an order and opinion amending the judgment to provide that Bank Line’s and Safmarine’s withdrawal liabilities are payable in accordance with the Fund’s established schedules. See 817 F.Supp. 4 (S.D.N.Y.1993). This appeal followed. DISCUSSION I. VITALITY OF KOREA SHIPPING As an initial matter, appellants maintain that the Supreme Court’s decision in Nationwide Mutual Insurance Co. v. Darden, — U.S. -, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), undermines our holding in Korea Shipping Corp. v. NYSA-ILA Pension Trust Fund, 880 F.2d 1531 (2d Cir.1989), which ruled that steamship vessel carriers who contribute to the NYSA-ILA pension fund are “employers” for purposes of MPPAA withdrawal liability. Under 29 U.S.C. § 1381(a), withdrawal liability is only assessed against employers. Thus, if appellants are" }, { "docid": "12098438", "title": "", "text": "statute did not adequately address the adverse consequences that would occur when an employer withdrew from a multiemployer pension plan. As the Supreme Court explained in Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984): A key problem of ongoing multiemployer plans, especially in declining industries, is the problem of employer withdrawal. Employer withdrawals reduce a plan’s contribution base. This pushes the contribution rate for remaining employers to higher and higher levels in order to fund past service liabilities, including liabilities generated by employers no longer participating in the plan, so-called inherited liabilities. The rising costs may encourage — or force — further withdrawals, thereby increasing the inherited liabilities to be funded by an ever-decreasing contribution base. This vicious downward spiral may continue until it is no longer reasonable or possible for the pension plan to continue. Id. at 723 n. 2, 104 S.Ct. at 2714 n. 2 (quoting Pension Plan Termination Insurance Issues: Hearings before the Subcommittee on Oversight of the House Committee on Ways and Means, 95th Cong., 2d Sess. 22 (1978) (statement of Matthew M. Lind, Executive Director of the Pension Benefit Guaranty Corporation)). Indeed, congressional study revealed that “the preexisting pension plan termination program, enacted as title IV of [ERISA], perversely operated to provide employers with an incentive to withdraw from financially weak plans.” I.A.M. National Pension Fund v. Clinton Engines Corp., 825 F.2d 415, 416 (D.C.Cir.1987). The threat of significant employer withdrawals also jeopardized the solvency of the Pension Benefit Guaranty Corporation, which was created to provide benefits to plan participants in the unfortunate event that a pension plan was terminated without sufficient assets to cover guaranteed benefits. R.A. Gray, 467 U.S. at 721, 104 S.Ct. at 2713. In response to these problems, Congress amended ERISA by enacting the Multiem-ployer Pension Plan Amendments Act of 1980 (MPPAA), 29 U.S.C. §§ 1381-1461. The MPPAA requires employers who withdraw, completely or partially, from a mul-tiemployer pension plan to contribute to the plan a proportionate share of the unfunded, vested benefits. R.A. Gray, 467 U.S. at 725, 104" }, { "docid": "23561011", "title": "", "text": "arbitration. I. OVERVIEW OF MPPAA Under the Employee Retirement Income Security Act of 1974, Pub.L. No. 93-406, 88 Stat. 1020 (“ERISA”), as amended by MPPAA, employers may make contributions to one or more pension plans on behalf of all their employees who belong to a participating union. Congress enacted MPPAA in particular because it found that existing legislation “did not adequately protect plans from the adverse consequences that resulted when individual employers terminate[d] their participation in, or withdr[e]w from, multiemployer plans.” Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 722, 104 S.Ct. 2709, 2714, 81 L.Ed.2d 601 (1984) (“R.A. Gray”); accord IUE AFL-CIO Pension Fund v. Barker & Williamson, Inc., 788 F.2d 118, 127 (3d Cir.1986) (“The MPPAA was designed ‘(1) to protect the interests of participants and beneficiaries in financially distressed multiemployer plans, and (2) ... to ensure benefit security to plan participants.’”) (original ellipses) (quoting H.R. Rep. No. 869, 96th Cong., 2d Sess. 71 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 2918, 2939) (“Barker & Williamson”). The Act addressed this problem by assessing such employers with withdrawal liability, defined in the statute as the employer’s adjusted “allocable amount of unfunded vested benefits.” 29 U.S.C. § 1381(b)(1) (1982). We will briefly outline the MPPAA provisions that are relevant to this case. The Act requires that “all ... trades or businesses (whether or not incorporated) [that] are under common control”, as defined in regulations issued by amicus curiae the Pension Benefit Guaranty Corporation (“PBGC”), “shall be treated ... as a single employer.” 29 U.S.C. § 1301(b)(1) (1982). Since a controlled group is to be treated as a single employer, each member of such a group is liable for the withdrawal of any other member of the group. See Barker & Williamson, 788 F.2d at 127-28. In determining whether a withdrawal has occurred, MPPAA explicitly provides that any transaction designed to “evade or avoid” withdrawal liability should be ignored: “[i]f a principal purpose of any transaction is to evade or avoid liability under this part, this part shall be applied (and liability shall be determined and" }, { "docid": "13711805", "title": "", "text": "to the Pension Fund, Centra makes two related claims: (1) that M & D was the only source of Centra’s liability to the Fund, and that therefore M & D’s discharge in bankruptcy also discharged Centra; and (2) that Centra was not an “employer” for MPPAA purposes because Centra purchased the stock of the reorganized debtor M & D after confirmation of the plan, free and clear of all pre-confirmation liability. We find that the district court correctly determined that summary judgment was appropriate in the light of the statutory directive that claims such as these, which raise issues concerning the Pension Fund’s determinations concerning withdrawal liability, are subject to mandatory arbitration and thus are not cognizable in the Pension Fund’s action to compel interim withdrawal payments. 29 U.S.C.A. § 1401(a)(1) (1985). When the sponsors of a multi-employer pension fund issue a withdrawal liability assessment to an employer pursuant to 29 U.S.C. § 1399(b)(1), the MPPAA requires that such withdrawal liability ... shall be payable in accordance with the schedule set forth by the plan sponsor ... beginning no later than 60 days after the date of the demand notwithstanding any request for review or appeal. ... 29 U.S.C.A. § 1399(c)(2) (1985) (emphasis added). If the employer wishes to challenge the sponsors’ determinations, the Act further provides that [a]ny dispute between an employer and the plan sponsor ... concerning a determination made under sections 1381 through 1399 of this title shall be resolved through arbitration. 29 U.S.C.A. § 1401(a)(1) (1985). As many courts have noted, this statutory scheme unambiguously established a “pay now, dispute later” dispute resolution procedure designed to protect the financial stability of multi-employer pension plans from unnecessary risk caused by protracted delay in the collection of withdrawal liability payments. See, e.g., Debreceni v. Merchants Terminal Corp., 889 F.2d 1, 5 (1st Cir.1989); Robbins v. Pepsi-Cola Metropolitan Bottling Co., 637 F.Supp. 1014, 1018 (N.D.Ill.1986), aff'd, 800 F.2d 641 (7th Cir.1986). Courts in the majority of circuits have held that ERISA empowers a court to order the making of interim withdrawal liability payments. Debreceni, supra; Robbins v. Pepsi-Cola, supra;" }, { "docid": "23203978", "title": "", "text": "Judge Broderick correctly held that compliance with § 1415 transfer provisions is not a condition precedent to the determination and demand of an employer’s withdrawal liability. Nonetheless, we remand this case to the district court so that it can direct the ILA Fund to give TIME-DC the notice required by § 1415(b)(2). II In 1974 Congress enacted the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1381 (ERISA sections hereinafter referred to by sections of Title 29, U.S.C.). ERISA was designed to ensure that employees and their beneficiaries would not be deprived of anticipated benefits from their private retirement pension plans. See R.A. Gray & Co., 104 S.Ct. at 2713 (1984) (citing Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 361-62, 374-75, 100 S.Ct. 1723, 1726, 1732-1733, 64 L.Ed.2d 354 (1980)). See also § 1001(a). Congress also created the Pension Benefit Guaranty Corporation (PBGC), a wholly-owned government corporation within the Department of Labor. § 1302. The PBGC guarantees the payment of benefits to plan participants and beneficiaries, paying the plan’s obligations if the plan terminates with insufficient assets to support its guaranteed benefits. R.A. Gray & Co., 104 S.Ct. at 2713. By the late 1970s Congress became aware that ERISA did not adequately provide for the continued financial growth of multiemployer pension plans. A significant number of multiemployer plans were experiencing extreme financial hardship that Congress feared would result in termination of numerous plans, forcing the PBGC to assume obligations in excess of its limits. See Textile Workers Pension Fund v. Standard Dye & Finishing Co., 725 F.2d at 847-49 (discussing the background of the MPPAA). If an employer withdraws from a plan after its employees’ benefits have vested, but before it meets all of its funding obligations, the plan may be left with sizeable unfunded vested liabilities. Prior to the MPPAA, an employer that had paid all required contributions to a multiemployer plan could withdraw from the plan, and if the plan did not terminate within five years after withdrawal, the employer had no further responsibility for the plan’s unfunded liabilities. This provided an “undesirable incentive" }, { "docid": "8574998", "title": "", "text": "the assets of the pension fund (the hourly contributions paid by employers, plus earnings thereon) and the actuarial value of vested pension rights of the employees. Id. Prior to the enactment of the MPPAA, employers could withdraw from pension plans without paying their share of the plans’ unfunded vested benefit liability. See Bd. of Trustees of the Western Conf. of Teamsters Pens. Trust Fund v. Thompson Building Materials, Inc., 749 F.2d 1396, 1401-02 (9th Cir. 1984), cert, denied, — U.S. —, 105 S.Ct. 2116, 85 L.Ed.2d 481 (1985). The employers could simply cease making pension contributions (e.g., by ceasing covered business) and avoid any responsibility for the actual, but unfunded, liabilities of the plans. The other employers remaining in the plan were forced either to assume these additional liabilities or to withdraw, resulting in unfairness to the remaining employers or insolvency of the plan. Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 722, n. 2, 104 S.Ct. 2709, 2714, n. 2, 81 L.Ed.2d 601, 606-07, n. 2 (1984). To alleviate these problems, Congress established a system for computing and assessing the liability of employers who withdraw from pension plans. 29 U.S.C. § 1361, et seq. This system is designed to make employers pay their share of the real cost of pensions, by paying a share of the difference between the assets already contributed and the vested benefit liability. R.A. Gray & Co., 467 U.S. at 723, 104 S.Ct. at 2714-15, 81 L.Ed.2d at 607. When an employer withdraws from a multiemployer pension plan, such as the one administered by the Fund, ERISA requires a withdrawing employer to compensate a pension plan for benefits that have already vested with the employees at the time of the employer’s withdrawal. Id. 467 U.S. at 724, 104 S.Ct. at 2715, 81 L.Ed.2d at 608. This “withdrawal liability” is assessed against the employer to “ensure that employees and their beneficiaries [are not] deprived of anticipated retirement benefits by the termination of pension plans before sufficient funds have been accumulated in the plans.” Id. 467 U.S. at 720, 104 S.Ct. at 2713," }, { "docid": "12098439", "title": "", "text": "Ways and Means, 95th Cong., 2d Sess. 22 (1978) (statement of Matthew M. Lind, Executive Director of the Pension Benefit Guaranty Corporation)). Indeed, congressional study revealed that “the preexisting pension plan termination program, enacted as title IV of [ERISA], perversely operated to provide employers with an incentive to withdraw from financially weak plans.” I.A.M. National Pension Fund v. Clinton Engines Corp., 825 F.2d 415, 416 (D.C.Cir.1987). The threat of significant employer withdrawals also jeopardized the solvency of the Pension Benefit Guaranty Corporation, which was created to provide benefits to plan participants in the unfortunate event that a pension plan was terminated without sufficient assets to cover guaranteed benefits. R.A. Gray, 467 U.S. at 721, 104 S.Ct. at 2713. In response to these problems, Congress amended ERISA by enacting the Multiem-ployer Pension Plan Amendments Act of 1980 (MPPAA), 29 U.S.C. §§ 1381-1461. The MPPAA requires employers who withdraw, completely or partially, from a mul-tiemployer pension plan to contribute to the plan a proportionate share of the unfunded, vested benefits. R.A. Gray, 467 U.S. at 725, 104 S.Ct. at 2715. See Central States, Southeast and Southwest Areas Pension Fund v. 888 Corp., 813 F.2d 760, 762 n. 2 (6th Cir.1987). An employer completely withdraws from a multiemployer pension plan when it (1) permanently ceases to have an obligation to contribute under the plan, or (2) permanently ceases all covered operations under the plan. 29 U.S.C. § 1383(a). A partial withdrawal occurs if (1) there is a seventy-percent contribution decline for a given plan year, or (2) there is a partial cessation of the employer’s contribution obligation. Id. at § 1385(a). There is a partial cessation of the employer’s contribution obligation for a plan year if, during such year: (i) the employer permanently ceases to have an obligation to contribute under one or more but fewer than all collective bargaining agreements under which the employer has been obligated to contribute under the plan but continues to perform work in the jurisdiction of the collective bargaining agreement of the type for which contributions were previously required or transfers such work to another location. 29" }, { "docid": "6182631", "title": "", "text": "upon withdrawal from the plan. 29 U.S.C. § 1381(a). The plan sponsor must notify the employer of the amount of its withdrawal liability, establish a schedule for payment, and demand payment in accordance with the schedule. Id. § 1399(b)(1). If the employer disputes the amount of withdrawal liability, it must request a review within 90 days of the demand. Id. § 1399(b)(2)(A). If the parties cannot resolve the dispute, arbitration is mandatory, and it must be initiated within 60 days after the earlier of either (1) notification by the plan sponsor of the result of the requested review or (2) 120 days of the date review was requested. Id. § 1401(a)(1). Notwithstanding any request for review or demand of arbitration, the uncured failure to make overdue payments constitutes a default. Id. § 1399(c)(5); Pension Benefit Guar. Corp. Reg. on Notice and Collection of Withdrawal Liability, 29 C.F.R. § 2644.2 (1988). The issue whether TMM was an “employer” within the meaning of the MPPAA is properly for the courts, not an arbitrator, to determine. Korea Shipping Corp. v. New York Shipping Ass’n-Int’l Longshoremen’s Ass’n Pension Trust Fund, 880 F.2d 1531, 1536 (2d Cir.1989). Arbitration is prescribed only for disputes “between an employer and the plan sponsor.” 29 U.S.C. § 1401(a)(1) (emphasis added). Thus, the MPPAA does not preclude judicial resolution of the threshold legal issue whether TMM is an employer within the meaning of the statute. See Park South Hotel Corp. v. New York Hotel Trades Council, 851 F.2d 578, 582 (2d Cir.), cert. denied, — U.S.-, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988); T.I.M.E.-DC, Inc. v. Management-Labor Welfare & Pension Funds, of Local 1730, 756 F.2d 939, 945 (2d Cir.1985). The term “employer” in the MPPAA “means ‘a person who is obligated to contribute to a plan either as a direct employer or in the interest of an employer of the plan’s participants.’ ” Korea Shipping, 880 F.2d at 1537 (quoting district court, 663 F.Supp. 766, 770 (S.D.N.Y.1987) (Weinfeld, J.)). TMM admits that it made tonnage assessment payments of over $1.4 million, of which $366,660.60 went to the Fund for" }, { "docid": "13711819", "title": "", "text": "liberally construed in favor of protecting the participants in employee benefits plans. ILGWU National Retirement Fund v. Levy Bros. Frocks, Inc., 846 F.2d 879, 885 (2d Cir.1988) (quoting IUE AFL-CIO Pension Fund v. Barker & Williamson, Inc., 788 F.2d 118, 127 (3d Cir.1986). From the unambiguous language by which Congress established the primacy of arbitration in withdrawal liability disputes and in light of our decisions interpreting those terms, it should be beyond cavil that the existence of an issue of statutory interpretation, standing alone, does not justify bypassing arbitration. Accepting this action as a good faith threshold questioning of whether the statute applies is difficult, when Centra previously acknowledged the MPPAA’s jurisdiction by invoking arbitration. Centra’s defenses appear to be rather an attempt to “stylize [Centra’s] claim into a question of law” with the purpose of delaying if not altogether preventing further arbitration. Connors, supra, 668 F.Supp. at 7. We find that the district court properly applied the law in compelling Centra to make interim withdrawal liability payments during the pending arbitration. Therefore, the court’s granting of summary judgment to the Pension Fund is AFFIRMED. . In 1980 Congress amended ERISA by means of the Multiemployer Pension Plan Amendments Act (\"MPPAA”), 29 U.S.C. §§ 1381 et seq., to protect beneficiaries of multi-employer pension plans from the effects of the withdrawal of a contributing employer. Under the MPPAA, an employer who withdraws from an ongoing mul-ti-employer pension plan becomes absolutely liable on the date of withdrawal for a proportionate share of the plan’s unfunded vested liability. A complete withdrawal occurs when an employer permanently ceases to have an obligation to contribute under the plan, or permanently ceases all covered operations under the plan. 29 U.S.C.A. § 1383(a) (1985). Partial withdrawal results when there is a 70% contribution decline, or a partial cessation of the employer’s contribution obligation. 29 U.S.C.A. § 1385(a) (1985). . 11 U.S.C. § 1129(a)(8) provides that if a class of claims or interests has not accepted the plan, the bankruptcy court shall not approve the plan unless it ascertains that the objecting class is not impaired by the" }, { "docid": "21563369", "title": "", "text": "the Act would not be applicable to the contributing indirect employer. At the same time, the direct noncontributing employer would also be absolved of withdrawal liability because it would not be deemed to have “withdraw[n] from a mul-tiemployer plan,” 29 U.S.C. § 1381(a), in accordance with the meaning given the term “withdrawal” under the MPPAA. See 29 U.S.C. § 1383(a) (defining “withdrawal” as “(1) permanently eeas[ing] to have an obligation to contribute under the plan, or (2) permanently ceas[ing] all covered operations under the plan”). We turn now to analysis of these issues. DISCUSSION A. Definition of Employer In enacting ERISA in 1974, 29 U.S.C. § 1001 et seq., Congress sought to prevent the losses suffered by employees and their families when vested pension benefits were not paid because a pension plan was terminated before sufficient funds had been accumulated. See Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 720, 104 S.Ct. 2709, 2713, 81 L.Ed.2d 601 (1984); Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 374-75, 100 S.Ct. 1723, 1732-33, 64 L.Ed.2d 354 (1980). Multiemployer plans developed in industries where job changes are frequent, like longshoring “where workers change employers from day to day or week to week.” NLRB v. Truck Drivers Local Union No. 449, 353 U.S. 87, 94, 77 S.Ct. 643, 647, 1 L.Ed.2d 676 (1957). Collective bargaining agreements with multiple employers are particularly appropriate in such industries because of the pension protection provided by the pooled funds of many employers. See Textile Workers Pension Fund v. Standard Dye & Finishing Co., 725 F.2d 843, 847 (2d Cir.1984). Subsequent concern for the financial stability of some multiem-ployer plans prompted Congress, in 1980, to enact that provision of the MPPAA which states: “If an employer withdraws from a multiemployer plan in a complete withdrawal or a partial withdrawal, then the employer is liable to the plan in the amount determined ... to be the withdrawal liability.” 29 U.S.C. § 1381(a). The MPPAA itself contains no definition of the word employer. But Title I of ERISA does contain a definition that would support" }, { "docid": "1968917", "title": "", "text": "agreement between UA and the Union, UA made payments to the Fund to provide pension benefits for UA employees. When UA ceased operations, it stopped contributing to the Fund. Because the Fund believed UA had completely withdrawn from the plan, the Fund assessed withdrawal liability against UA under MPPAA, 29 U.S.C. §§ 1381(a), 1383(a). UA challenged the assessment and demanded arbitration under the Act. See id. § 1401(a)(1). In the interim, UA began making payments to the Fund. See id. § 1401(d). After an evidentiary hearing, an arbitrator determined that UA had not withdrawn from the Fund because UA came within the building and construction industry exception of MPPAA, id. § 1383(b). Thus, the arbitrator ordered the Fund to return UA’s previous payments. The Fund filed a complaint in federal district court seeking to vacate the arbitrator’s award; UA filed a complaint to enforce the award. See id. § 1401(b)(2). After careful review, the district court rejected the arbitrator’s determination that UA came within the statutory exception for the building and construction industry. Thus, the court held UA subject to withdrawal liability. UA appeals. Congress enacted the Employee Retirement Income Security Act of 1974 (ERISA), Pub.L. No. 93-406, 88 Stat. 829 (codified as amended at scattered sections in 5, 18, 26, and 29 U.S.C.), to regulate private retirement pension plans. Because ERISA did not adequately protect multiemployer pension plans when employers terminated their participation in those plans, Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 722, 104 S.Ct. 2709, 2714, 81 L.Ed.2d 601 (1984), Congress amended ERISA by enacting MPPAA. Under MPPAA, when an employer completely withdraws from a multiemployer pension plan, that employer must pay a sum determined by the particular fund under guidelines set by Congress. See 29 U.S.C. §§ 1381, 1382, 1391. This payment, labeled as the withdrawal liability, id. § 1381, protects the financial stability of the plan. See H.R. Rep. No. 869, 96th Cong., 2d Sess., pt. 1, at 67, reprinted in 1980 U.S.Code Cong. & Admin.News 2918, 2935 (Report). Under certain circumstances, however, the Act excuses employers in the building" }, { "docid": "1968918", "title": "", "text": "court held UA subject to withdrawal liability. UA appeals. Congress enacted the Employee Retirement Income Security Act of 1974 (ERISA), Pub.L. No. 93-406, 88 Stat. 829 (codified as amended at scattered sections in 5, 18, 26, and 29 U.S.C.), to regulate private retirement pension plans. Because ERISA did not adequately protect multiemployer pension plans when employers terminated their participation in those plans, Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 722, 104 S.Ct. 2709, 2714, 81 L.Ed.2d 601 (1984), Congress amended ERISA by enacting MPPAA. Under MPPAA, when an employer completely withdraws from a multiemployer pension plan, that employer must pay a sum determined by the particular fund under guidelines set by Congress. See 29 U.S.C. §§ 1381, 1382, 1391. This payment, labeled as the withdrawal liability, id. § 1381, protects the financial stability of the plan. See H.R. Rep. No. 869, 96th Cong., 2d Sess., pt. 1, at 67, reprinted in 1980 U.S.Code Cong. & Admin.News 2918, 2935 (Report). Under certain circumstances, however, the Act excuses employers in the building and construction industry from withdrawal liability. For example, an employer in the building and construction industry that goes out of business does not have to pay withdrawal liability to a multiemployer pension plan at that time. Report, supra, at 75-76, U.S.Code Cong. & Admin.News at 2943-44. While section 1383(a) defines “complete withdrawal” for most employers, section 1383(b) defines complete withdrawal for an employer in the building and construction industry. Section 1383(b) provides: (1) Notwithstanding [section 1383(a) ], in the case of an employer that has an obligation to contribute under a plan for work performed in the building and construction industry, a complete withdrawal occurs only as described in paragraph (2), if- (A) substantially all the employees with respect to whom the employer has an obligation to contribute under the plan perform work in the building and construction industry, and (B) the plan— (i) primarily covers employees in the building and construction industry (2) A withdrawal occurs under this paragraph if— (A) an employer ceases to have an obligation to contribute under the plan, and" }, { "docid": "17048049", "title": "", "text": "until it is no longer reasonable or possible for the pension plan to continue. Gray, 104 S.Ct. at 2714 n. 2, citing “Pension Plan Termination Insurance Issues,” Hearings Before the Subcommittee on Oversight of the House Committee on Ways and Means, 95th Cong., 2d Sess. 22 (1978) (statement of Matthew M. Lind). The PBGC suggested that in order to avoid these dire consequences, Congress should amend ERISA to include new rules wherein an employer withdrawing from a multiemployer pension plan would be required to pay his proportional share of the plan’s unfunded vested liabilities. The advantages of the proposed withdrawal liability were two-fold: first, it would “discourage voluntary withdrawals and curtail the current incentives to flee the plan;” and second, “[w]here such withdrawals [do] occur, ... withdrawal liability would cushion the financial impact on the plan.” Gray, 104 S.Ct. at 2714-15 n. 3 (citing statement of Matthew M. Lind). Congress took the PBGC’s recommendations to heart, and amended ERISA by enacting the MPPAA in 1980. See 29 U.S.C. §§ 1381 et seq. “As enacted, the [MPPAA] requires an employer withdrawing from a multiemployer pension plan pay a fixed and certain debt to the pension plan. This withdrawal liability is the employer’s proportionate share of the plan’s ‘unfunded vested benefits,’ calculated as the difference between the present value of the vested benefits and the current value of the plan’s assets.” Gray at 2715, citing 29 U.S.C. §§ 1381, 1391. The MPPAA thus created a statutory framework whereby an employer who terminates or significantly reduces the level of his contributions to a multiemployer pension plan would no longer be able to evade his responsibility to fund the plan. Under the MPPAA, an employer who effects a complete or partial withdrawal from the plan will be liable for a proportionate share of the plan’s unfunded vested benefit liability at the time of his withdrawal. The MPPAA requires an assessment of withdrawal liability if an employer effects either a complete or partial withdrawal from the plan. A complete withdrawal occurs if an employer (1) permanently ceases to have an obligation to contribute under the" }, { "docid": "21563368", "title": "", "text": "Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1002(5) (1982 & Supp. V 1987), was not directly applicable to the MPPAA. But the district judges nevertheless drew upon ERISA’s definition in holding that the carriers that were contractually obligated to contribute to a plan in the indirect interests of the direct employer (here, the stevedores) could not escape withdrawal liability without threatening “the very effectiveness of the Act.” Korea Shipping, 663 F.Supp. at 770 (quoted in Delta S.S., 688 F.Supp. at 1566). In reaching its determinations, the district court correctly observed that to apply a common law definition of employer to the MPPAA would encourage employers to insulate themselves contractually from liability by entering into agreements under which contributions to the pension plans would be made by entities that were not the direct employers of the plan’s beneficiaries. Under such a scenario, the contributing indirect employer could terminate its relationship with the direct employer and thereafter withdraw from the plan without incurring withdrawal liability because, pursuant to the definition of employer urged by appellants, the Act would not be applicable to the contributing indirect employer. At the same time, the direct noncontributing employer would also be absolved of withdrawal liability because it would not be deemed to have “withdraw[n] from a mul-tiemployer plan,” 29 U.S.C. § 1381(a), in accordance with the meaning given the term “withdrawal” under the MPPAA. See 29 U.S.C. § 1383(a) (defining “withdrawal” as “(1) permanently eeas[ing] to have an obligation to contribute under the plan, or (2) permanently ceas[ing] all covered operations under the plan”). We turn now to analysis of these issues. DISCUSSION A. Definition of Employer In enacting ERISA in 1974, 29 U.S.C. § 1001 et seq., Congress sought to prevent the losses suffered by employees and their families when vested pension benefits were not paid because a pension plan was terminated before sufficient funds had been accumulated. See Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 720, 104 S.Ct. 2709, 2713, 81 L.Ed.2d 601 (1984); Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 374-75, 100 S.Ct." }, { "docid": "13711820", "title": "", "text": "granting of summary judgment to the Pension Fund is AFFIRMED. . In 1980 Congress amended ERISA by means of the Multiemployer Pension Plan Amendments Act (\"MPPAA”), 29 U.S.C. §§ 1381 et seq., to protect beneficiaries of multi-employer pension plans from the effects of the withdrawal of a contributing employer. Under the MPPAA, an employer who withdraws from an ongoing mul-ti-employer pension plan becomes absolutely liable on the date of withdrawal for a proportionate share of the plan’s unfunded vested liability. A complete withdrawal occurs when an employer permanently ceases to have an obligation to contribute under the plan, or permanently ceases all covered operations under the plan. 29 U.S.C.A. § 1383(a) (1985). Partial withdrawal results when there is a 70% contribution decline, or a partial cessation of the employer’s contribution obligation. 29 U.S.C.A. § 1385(a) (1985). . 11 U.S.C. § 1129(a)(8) provides that if a class of claims or interests has not accepted the plan, the bankruptcy court shall not approve the plan unless it ascertains that the objecting class is not impaired by the plan. 11 U.S.C.A. § 1129(a)(8) (1979 & West Supp.1991). . The bankruptcy court stayed its order conditioned upon the Pension Fund's posting a $7 million supersedeas bond. The Pension Fund did not post the bond, so implementation of the plan began on April 9, 1986. Meanwhile, the Pension Fund sought review in federal district court of the confirmation plan itself. Central States, Southeast and Southwest Areas Pension Fund v. Central Transport, Inc., 68 B.R. 95 (Bankr.M.D.N.C.1986). The district court dismissed the appeal on the ground that it had become moot by reason of substantial implementation of the reorganization plan. The Fourth Circuit affirmed. Central States, Southeast and Southwest Areas Pension Fund v. Central Transport, Inc., 841 F.2d 92 (4th Cir.1988). . The MPPAA contains detailed dispute resolution provisions. Once the plan sponsors determine that an employer has completely or partially withdrawn from a pension plan, they must notify the employer of the amount of the liability, prepare a schedule for liability payments, and demand payment in accordance with the schedule. 29 U.S.C.A. §§ 1382, 1399(b)(1)" } ]

[ { "docid": "23135086", "title": "", "text": "the hands of his foster parents is not harm inflicted by state agents. See Milburn v. Anne Arundel County Dep’t of Social Servs., 871 F.2d 474 (4th Cir.), cert. denied, — U.S. -, 110 S.Ct. 148, 107 L.Ed.2d 106 (1989). It is even more clear that harm suffered by a child in the custody of a parent or grandparent is not harm inflicted by the State. Therefore, the complaint fails to assert federal jurisdiction under the substantive component of the due process clause. B. Procedural Due Process Similarly, most of the allegations fail to raise issues of procedural due process. Some allegations suggest that Weller is seeking relief which would require BCDSS to comply with state laws, such as those requiring certain investigative procedures to be followed prior to removing a child from a home to prevent child abuse. If Weller is seeking compliance with state law, this is not the proper forum. Even if BCDSS did violate state law, it is well settled that violations of state law cannot provide the basis for a due process claim. Clark v. Link, 855 F.2d 156, 163 (4th Cir. 1988). Weller has no property or liberty interest in the specific investigative procedures which he contends were neglected; therefore no due process claim can rest upon the state’s failure to conduct them. See Doe v. Hennepin County, 858 F.2d 1325, 1328 (8th Cir. 1988), cert. denied, — U.S.-, 109 S.Ct. 3161, 104 L.Ed.2d 1023 (1989). While the State’s requirements of certain investigative procedures are no doubt intended to provide a court with the best available evidence in cases of suspected abuse, the due process clause does not itself dictate the procedures for gathering such evidence. Weller also complains that inadequate procedures exist under which he could defend his reputation against allegations of child abuse. Although in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Supreme Court held that no protectible liberty interest was damaged by the publication of the arrest of a shoplifter, it is less clear that there is no protectible liberty interest in one’s reputation" } ]

[ { "docid": "9961606", "title": "", "text": "to provide the items described in the preceding sentence. . In Blessing the Court explained that the specific statutory provisions at issue as well as entire legislative enactment should be analyzed to determine whether those provisions create enforceable right within meaning of § 1983. 520 U.S. at 340, 117 S.Ct. at 1360 (observing that \"[o]nly when the complaint is broken down into manageable analytic bites can a court ascertain whether each separate claim satisfies the various criteria we have set forth for determining whether a federal statute creates rights.”). . The Fifth Circuit has not yet considered the question. Indeed, while the defendants in Del A. v. Edwards, 855 F.2d 1148, 1151 (5th Cir.1988), argued that the AACWA did not create substantive rights enforceable under § 1983, the Fifth Circuit avoided the issue, stating that \"it would be premature for us to decide these abstruse questions on this interlocutory appeal because they do not directly affect the issue of qualified immunity.” .Section 671(a)(15) requires that for a state to be eligible for payments under the Act, the state must have a plan approved by the Secre-taiy which provides that In each case, reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home. . See also Charlie H. v. Whitman, 83 F.Supp.2d 476, 490 (D.NJ.2000) (§ 675(5), standing alone, does not confer a right enforceable under § 1983); B.H. v. Johnson, 715 F.Supp. 1387, 1401' (N.D.Ill.1989) (\"It would be strange for Congress to create enforceable rights in the definitional section of a statute.”). . . . It does, however, state that the case plan must provide for a case review system \"which meets the requirements described in section 675(5)(B) of this title,\" which requires periodic administrative reviews. Nevertheless, the remaining rationale for the court's conclusion in 31 Foster Children applies fully to plaintiffs' claims herein based on § 675(5)(B) and § 671 (a)(l 6). . The court" }, { "docid": "7187457", "title": "", "text": "circuits, in none of these prior cases did the court actually reach the question of whether a child welfare statute required removal of a child from an unsafe environment, thus potentially imposing substantive as well as procedural requirements on state officials and creating a liberty or property interest sufficient to state a procedural due process claim. See Doe v. District of Columbia, 93 F.3d 861, 867-68 (D.C.Cir.1996) (per curiam) (“[B]y codifying procedures for investigating child abuse and neglect reports, D.C. has not assumed a constitutional obligation to protect children from such abuse and neglect.”); Tony L. v. Childers, 71 F.3d 1182, 1186 (6th Cir.1995) (“[Plaintiffs’] claim of a state-created liberty interest fails, however, because no particular substantive outcome is mandated. The requirement that an investigation be initiated only gives plaintiffs an expectation of receiving a certain process.”); Doe v. Milwaukee County, 903 F.2d 499, 503 (7th Cir.1990) (noting that particular statute cited by plaintiffs “is, in essence, a set of procedures that guides Wisconsin counties in their efforts to prevent child abuse ... [b]ut the procedures themselves are not ‘benefits’ within the meaning of Fourteenth Amendment jurisprudence”); Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 392 (4th Cir.1990) (“[Plaintiff] has no property or liberty interest in the specific investigative procedures which he contends were neglected.”). Indeed, as these cases dealt with child welfare statutes from other states, they provide only marginal guidance in this case, and highlight the need for a careful reading of § 17a-101g(c). C. Certification Under these circumstances, we believe that certification to the Connecticut Supreme Court is the most prudent path. See Conn. GemStat. § 51-199b(d). Although this Court may ordinarily interpret ambiguous state statutes using the normal rules of statutory interpretation, even in the absence of controlling state authority, several factors strongly suggest that we defer to the Connecticut Supreme Court in this case. First, there can be no doubt that Connecticut has a compelling interest in protecting child welfare. See Israel v. State Farm Mut. Auto. Ins. Co., 239 F.3d 127, 135 (2d Cir.2000) (indicating that certification is appropriate where the state has" }, { "docid": "19800138", "title": "", "text": "Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989)). Defendants argue that the interest at stake is their expectation of confidentiality in juvenile proceedings, which they allege is undermined by SORNA’s public registration requirements. However, SORNA does not render the entire juvenile adjudication process public. Juvenile sex offenders can still avail themselves of closed hearings, sealed records, and the other procedural protections of the juvenile process. But more importantly, because we conclude that the confidentiality provisions of the FJDA were intentionally superseded by the passage of SORNA, the underlying interest in confidentiality that defendants rely upon no longer exists. In the absence of that specific statutory right, defendants offer no support for the notion that they have a broader right. In fact, the Supreme Court has held that adverse publicity or harm to the reputation of sex offenders does not implicate a liberty interest for the purposes of due process analysis. Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 7, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003). Defendants rely heavily on the factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), to establish that SORNA is a punitive statute, and thus necessarily deprives them of a liberty or property interest. Whether SORNA is punitive is not dispositive. Even if defendants were correct that SORNA is punitive, that does not necessarily give rise to a protected liberty interest for the purposes of due process. We have recognized that constitutionally protected liberty interests can be created where a law sets forth “substantive predicates to govern official decision making” and contains “explicitly mandatory language” that mandates a particular outcome. Valdez v. Rosenbaum, 302 F.3d 1039, 1044 (9th Cir.2002) (internal quotation marks omitted). However, no such legal basis exists here, as the FJDA’s provisions have been superseded by SORNA. Our conclusion is consistent with that of other circuits that have considered this question, each rejecting the argument that SORNA is a punitive statute and characterizing it instead as a civil regulation. See, e.g., United States v." }, { "docid": "18947973", "title": "", "text": "“[o]ne cannot have a ‘property interest’ (or a life or liberty interest, for that matter) in mere procedures because [pjrocess is not an end itself.” Id. at 502-03 (quoting Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983)). The seventh circuit concluded that the Wisconsin statutes created a set of procedures which “assist the county in conferring the benefit of government protection upon Wisconsin’s minor residents!,]” but concluded that the state procedures were not themselves protected interests under the Fourteenth Amendment. Id. at 503. The court noted that: [I]t seems to us, the provision for investigation of required reports is designed to strike a balance between the state’s interest in protecting children and individual families’ interest in privacy from state intrusions. Thus, the statute can be seen as establishing a procedure by which the state may deprive a family of its liberty interest in privacy. Doe v. Milwaukee County, 903 F.2d 499, 504 n. 9 (7th Cir.1990). The court affirmed the district court’s dismissal of the action for failure to state a federal claim. Id. at 505. Similarly, in Doe v. District of Columbia, 93 F.3d 861 (D.C.Cir.1996), the District of Columbia circuit held that a minor could not sue government employees for violations of procedural due process where the defendants allegedly failed to investigate reports of child abuse. The court acknowledged that “state law which generates a legitimate claim of entitlement can create an interest the deprivation of which triggers application of the Due Process Clause.” Id. at 868. However, the court held, in enacting the child protection procedures, “D.C. has not assumed a constitutional obligation to protect children from such abuse and neglect.” Id. Like the seventh circuit held in Doe v. Milwaukee County, the District of Columbia circuit concluded that “state-created procedures do not create such an entitlement where none would otherwise exist.” Doe v. District of Columbia, 93 F.3d 861, 868 (D.C.Cir.1996). In the instant case, the plaintiffs do not argue that the state of Connecticut had the constitutional obligation to enact its child protection statutes, but rather, they argue that" }, { "docid": "20714068", "title": "", "text": "Nevada does have a law directing state courts to appoint a guardian ad litem for every eligible child. See Nev.Rev.Stat. § 432B.500(1) (“After a petition is filed that a child is in need of protection ... the court shall appoint a guardian ad litem for the child.”). But courts do not always order these appointments, because Clark County does not have enough guardian ad litem volunteers. See Nev.Rev.Stat. § 432B.500(2) (“No compensation may be allowed a person serving as a guardian ad litem pursuant to this section.”). Plaintiffs thus seek an injunction compelling the State and County defendants to “make it possible for state courts to appoint a guardian ad litem in every case.” The district court held that the guardian ad litem provision of CAPTA was not privately enforceable and that, in the alternative, abstention was warranted under the doctrine set forth in Younger v. Harris, 401 U.S. 87, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). As best we can tell, no court has specifically addressed whether the guardian ad litem provision of CAPTA is enforceable through § 1983, and no federal appellate court has considered whether any provision of the current version of CAPTA is privately enforceable. As a matter of first impression, we conclude that the guardian ad litem provision does not create an individual right enforceable through § 1983. The Sixth Circuit and the D.C. Circuit have held that an earlier version of CAP-TA is not privately enforceable. Doe v. District of Columbia, 93 F.3d 861, 866-67 (D.C.Cir.1996); Tony L. v. Childers, 71 F.3d 1182, 1188-89 (6th Cir.1995). That version required that in order to qualify for a grant, a State “shall provide that upon receipt of a report of known or suspected instances of child abuse or neglect,” the State would initiate an investigation and take immediate steps to protect the abused or neglected child. 42 U.S.C. § 5106a(b)(2) (1988) (emphasis added). Despite this mandatory language, both circuits held that CAPTA was not privately enforceable because it did not “mandate a particular means of investigation or state what type of actions must be taken” to" }, { "docid": "9961532", "title": "", "text": "violation of their alleged procedural and substantive due process rights, of their rights to equal protection and their alleged rights under the Adoption Assistance and Child Welfare Act. Defendants maintain in their motion that each of these claims is due to be dismissed for failure to state a claim upon which relief can be granted. The court addresses plaintiffs’ claims, and defendants’ motion as it relates to them, seriatim. Procedural Due Process: The Protective Services Class claims a constitutionally protected interest “in having credible reports of maltreatment referred to Youth Court, as required by state law, and having the Youth Court make the final determination regarding the disposition of those reports.” In their motion, defendants argue that these plaintiffs have no sustainable procedural due process claim because the state statute upon which they rely as the basis for their claimed interest merely prescribes procedures for investigating and referring reports of abuse and neglect and does not dictate a specific substantive outcome and hence does not create a constitutionally protected interest. The principles upon which defendants’ motion on this point is grounded were summarized by the court in Tony L. By and Through Simpson v. Childers, as follows: State-created liberty interests arise when a state places “substantive limitations on official discretion.” Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983); Kentucky Dep’t of Corrections, 490 U.S. at 462, 109 S.Ct. at 1909-10[, 104 L.Ed.2d 506 (1989)]. A state substantively limits official discretion “by establishing ‘substantive predicates’ to govern official decisionmaking ... and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” Id. (citation omitted). The state statutes or regulations in question also must use “explicitly mandatory language” requiring a particular outcome if the articulated substantive predicates are present. Id. at 463, 109 S.Ct. at 1910.... Finally, the statute or regulation must require a particular substantive outcome. State-created procedural rights that do not guarantee a particular substantive outcome are not protected by the Fourteenth Amendment, even where such procedural rights are mandatory. Pusey v. City of Youngstown," }, { "docid": "7187456", "title": "", "text": "significant difficulties for this Court in analyzing plaintiffs’ due process claims. Without a clear understanding of the underlying state law, we cannot determine in an informed manner whether plaintiffs have a legitimate entitlement to emergency removal potentially triggering Fourteenth Amendment protection. If § 17a-101g(c) makes removal mandatory, we cannot say at this preliminary stage of the litigation that plaintiffs have failed to allege the existence of a protected property or liberty interest. Cf. Gonzales v. City of Castle Rock, 307 F.3d 1258, 1264-66 (10th Cir.2002) (concluding that a Colorado statute providing that peace officers “shall arrest [or] ... seek a warrant for the arrest of a restrained person when the peace officer has information amounting to probable cause that ... [t]he restrained person has violated or attempted to violate any provision of a restraining order” creates a “legitimate claim of entitlement to the protection provided by arrest” in the holder of a restraining order sufficient to support a procedural due process claim) (emphasis in original). Although similar due process claims have been rejected by other circuits, in none of these prior cases did the court actually reach the question of whether a child welfare statute required removal of a child from an unsafe environment, thus potentially imposing substantive as well as procedural requirements on state officials and creating a liberty or property interest sufficient to state a procedural due process claim. See Doe v. District of Columbia, 93 F.3d 861, 867-68 (D.C.Cir.1996) (per curiam) (“[B]y codifying procedures for investigating child abuse and neglect reports, D.C. has not assumed a constitutional obligation to protect children from such abuse and neglect.”); Tony L. v. Childers, 71 F.3d 1182, 1186 (6th Cir.1995) (“[Plaintiffs’] claim of a state-created liberty interest fails, however, because no particular substantive outcome is mandated. The requirement that an investigation be initiated only gives plaintiffs an expectation of receiving a certain process.”); Doe v. Milwaukee County, 903 F.2d 499, 503 (7th Cir.1990) (noting that particular statute cited by plaintiffs “is, in essence, a set of procedures that guides Wisconsin counties in their efforts to prevent child abuse ... [b]ut the" }, { "docid": "4391312", "title": "", "text": "assumed a constitutional obligation to protect children from such abuse and neglect”); Tony L. v. Childers, 71 F.3d 1182, 1186 (6th Cir.1995) (ruling state-created procedural rights “only give Plaintiffs an expectation that a certain procedure will be followed,” and declaring “[a]n expectation that some sort of action will be taken is not enough.... [A] plaintiff must have an expectation that a particular result will follow from a particular, required action.”); Doe v. Milwaukee County, 903 F.2d 499, 503-04 (7th Cir.1990) (rejecting a procedural due process claim for failing to investigate child abuse, finding no “entitlement” in such procedures, and ruling the “procedures themselves are not ‘benefits’ within the meaning of Fourteenth Amendment jurisprudence”). Recently, in a case filed by children alleging abuse while in foster care, a recognized exception under DeShaney, the Second Circuit ruled that “the detailed and comprehensive procedures for investigating potential child abuse mandated by state law[J ... standing alone, create no independent substantive entitlements, whose deprivation might trigger application of the Due Process Clause.” Sealed, 332 F.3d at 57. The Second Circuit reasoned that “ ‘[ejlevating a state-mandated procedure to the status of a constitutionally protected’ liberty or property interest, would make process ‘an end in itself rather than a requirement whose ‘constitutional purpose is to protect a substantive interest in which the individual has a claim of entitlement.’ ” Id. at 57'n. 5 (citation omitted). Thus, based on the plain statutory language and court precedent, we hold sections 210.109 and 210.145 of the Missouri Revised Statutes, which were in effect in August 1999, did not create specific, constitutionally protected property or liberty interests in state-created investigative, preventive, and protective social services. Finding no protected interests, we need not decide what, if any, procedural process was due.' C. Substantive Due Process Forrester also claims the failure of Johnson and Rosa to comply with state-cheated statutory procedures violated Larry’s and Gary’s substantive due process rights to bodily integrity and their fundamental rights to life. While DeShaney does not control Forrester’s procedural due process claims, DeShaney squarely forecloses his substantive due process claims. Declaring a state has no" }, { "docid": "4391305", "title": "", "text": "Only if we find a protected interest do we examine whether the deprivation of the protected interest was done in accordance with due process. See Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). In Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Supreme Court defined a property interest-as an interest “a person has already acquired in specific benefits.” The Court- explained that to have a property interest in a benefit, an individual claiming the interest' “must have more than an- abstract- need or desire ... [or] a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Id. at 577, 92 S.Ct. 2701. A state-created liberty interest arises when a state imposes “substantive limitations on official discretion.” Olim v. Wakinekona, 461 U.S. 238, 249, 103.S.Ct. 1741, 75 L.Ed.2d 813 (1983). We. determine whether a state law creates an enforceable liberty interest by “examin[ing] closely the language of the relevant statutes and regulations.” Thompson, 490 U.S. at 461, 109 S.Ct. 1904. “[T]he most common manner in which a State creates a liberty interest is by establishing ‘substantive predicates’ to govern official decision-making, and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” Id. at 462, 109 S.Ct. 1904 (citation omitted). The Court also articulated a requirement that statutes and regulations must contain “ ‘explicitly mandatory language,’ i.e., specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow, in order to create a liberty interest.” Id. at 463, 109 S.Ct. 1904. “In sum, the use of ‘explicitly mandatory language,’ in connection with -the establishment of ‘specified substantive predicates’ to limit discretion, forces a conclusion that the State has created a liberty interest.” Id. , Sections 210.109 and 210.145 charged DFS personnel with the duties of receiving reports of child abuse and neglect, and determining whether a family assessment and services approach or an investigation should be employed to respond to the report." }, { "docid": "18947974", "title": "", "text": "state a federal claim. Id. at 505. Similarly, in Doe v. District of Columbia, 93 F.3d 861 (D.C.Cir.1996), the District of Columbia circuit held that a minor could not sue government employees for violations of procedural due process where the defendants allegedly failed to investigate reports of child abuse. The court acknowledged that “state law which generates a legitimate claim of entitlement can create an interest the deprivation of which triggers application of the Due Process Clause.” Id. at 868. However, the court held, in enacting the child protection procedures, “D.C. has not assumed a constitutional obligation to protect children from such abuse and neglect.” Id. Like the seventh circuit held in Doe v. Milwaukee County, the District of Columbia circuit concluded that “state-created procedures do not create such an entitlement where none would otherwise exist.” Doe v. District of Columbia, 93 F.3d 861, 868 (D.C.Cir.1996). In the instant case, the plaintiffs do not argue that the state of Connecticut had the constitutional obligation to enact its child protection statutes, but rather, they argue that the Connecticut child protection statutes “create a property interest in their provisions[.]” The plaintiffs’ framing of their argument makes clear that the procedural rights they seek to enforce stem not from a constitutional source, but rather from Connecticut’s state-created procedures. Procedures alone, however, do not demonstrate a legitimate claim of entitlement. The DeShaney court concluded that the states were under no obligation to protect children from the abuse of private actors. It would be inapposite to conclude that Connecticut’s child protection statutes, and the procedures contained within, trigger procedural due process rights. “The State may choose to require procedures for reasons other than the protection against deprivation of substantive rights, of course, but in making that choice the State does not create an independent substantive right.” Olim v. Wakinekona, 461 U.S. 238, 250-51, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). Based on the foregoing, the court concludes that the plaintiffs’ causes of action based on violations of substantive and procedural due process must be dismissed for failure to state a cause of action. Thirteenth Amendment" }, { "docid": "4391309", "title": "", "text": "although the plaintiffs “desired or even expected the social services set forth in the Minnesota statute, they ha[d] no legitimate claim of entitlement.” Doe, 858 F.2d at 1328. We explained in Doe that in order to have a legitimate entitlement, the benefit must be specific, i.e., clearly definable, and we provided several examples of clearly definable benefits, including public assistance, social security income, and unemployment benefits. Id. In contrast to these specific benefits, we explained the provision of Minnesota’s statutorily defined “social services is qualified by the considerable discretion placed in the hands of those who administer it.” Id. at 1329. We also noted the “lack of specificity of the Minnesota statute.” Id. The Minnesota statute examined in Doe and Myers is not identical to the Missouri statutes relied upon here, and the facts in Doe and Myers, both of which involved the emergency removal of children from parental custody following reported child abuse, are converse to those before us. Nonetheless, we conclude the legal reasoning employed in these earlier cases should apply. Similar to the Minnesota statute, sections 210.109 and 210.145 of the Missouri statutes codify procedures for administering the state’s child protection system, the telephone hot line, and the central registry. Sections 210.109 and 210.145 contain “explicit mandatory language,” e.g., an investigation is required when a child abuse report, if true, would constitute a crime or attempted crime against a child; notification of law enforcement, with a request for assistance, and direct observation of the child within twenty-four hours are also required under the same circumstances; and social services must be provided to the child and family. Despite explicit language requiring DFS officials to comply with certain procedures, the statutes contain no substantive predicates expressly limiting the discretion of DFS officials “by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” See Thompson, 490 U.S. at 462, 109 S.Ct. 1904 (citation omitted). The statutes do not mandate the particular substantive outcomes of required investigations, law enforcement notification and intervention, direct observation of subject children, and the provision of social services. See" }, { "docid": "7187451", "title": "", "text": "in analyzing plaintiffs’ claims we must first understand the underlying Connecticut child welfare statutes and then determine whether those statutes create a protected property or liberty interest. In evaluating whether a state has created a protected interest in the administrative context, we must determine whether the state statute or regulation at issue meaningfully channels official discretion by mandating a defined administrative outcome. As the Supreme Court has explained: “[A] State creates a protected liberty interest by placing substantive limitations on official discretion.... [generally] by establishing substantive predicates to govern official decision-making, and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 462, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (internal quotations and citations omitted). Similarly, to claim a protected property interest in a particular administrative benefit or measure, an individual must have “a legitimate claim of entitlement” in receiving the benefit or measure, not merely “a unilateral expectation” in a desired administrative outcome. See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Where the administrative scheme does not require a certain outcome, but merely authorizes particular actions and remedies, the scheme does not create “entitlements” that receive constitutional protection under the Fourteenth Amendment. See Kelly Kare, Ltd. v. O’Rourke, 930 F.2d 170, 175 (2d Cir.1991) (“If the statute, regulation, or contract in issue vests in the state significant discretion over the ... conferral of [a] benefit, it will be the rare case that the recipient will be able to establish an entitlement to that benefit.”). In support of their due process claims, plaintiffs rely on the statutorily expressed public policy of the state of Connecticut: To protect children whose health and welfare may be adversely affected through injury and neglect ... [and] to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where" }, { "docid": "4391310", "title": "", "text": "the Minnesota statute, sections 210.109 and 210.145 of the Missouri statutes codify procedures for administering the state’s child protection system, the telephone hot line, and the central registry. Sections 210.109 and 210.145 contain “explicit mandatory language,” e.g., an investigation is required when a child abuse report, if true, would constitute a crime or attempted crime against a child; notification of law enforcement, with a request for assistance, and direct observation of the child within twenty-four hours are also required under the same circumstances; and social services must be provided to the child and family. Despite explicit language requiring DFS officials to comply with certain procedures, the statutes contain no substantive predicates expressly limiting the discretion of DFS officials “by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” See Thompson, 490 U.S. at 462, 109 S.Ct. 1904 (citation omitted). The statutes do not mandate the particular substantive outcomes of required investigations, law enforcement notification and intervention, direct observation of subject children, and the provision of social services. See Mo. Rev.Stat. §§ 210.109(3)-(5), (8), (12), (16)-(17) (Supp.1998); 210.145.5-.6, .10-11 (1994). Nor do the statutes define mandatory social services, or dictate how, when, or for how long these social services must be provided. Instead, the statutory language simply mandates particular preliminary actions be undertaken and authorizes the provision of social services, thereby leaving the particular substantive outcome in each case to the sound discretion of trained social workers and law enforcement officers. See id. We agree with the Second Circuit’s ruling that where an administrative process does not require specific substantive outcomes, but merely authorizes and directs particular actions and remedies, the administrative process does not create “entitlements” subject to constitutional protections under the Fourteenth Amendment. See Sealed v. Sealed, 332 F.3d 51, 56 (2d Cir.2003). Other circuits, analyzing similarly drafted child welfare statutes, have reached this same conclusion. See Doe v. Dist. of Columbia, 93 F.3d 861, 868 (D.C.Cir.1996) (declaring “process alone does not give rise to a protected substantive interest: by codifying procedures for investigating child abuse and neglect reports, D.C. has not" }, { "docid": "7187463", "title": "", "text": "Doe v. Milwaukee County, 903 F.2d 499 (7th Cir.1990), would make process \"an end in itself” rather than a requirement whose \"constitutional purpose is to protect a substantive interest in which the individual has a claim of entitlement.” Olim, 461 U.S. at 250-51, 103 S.Ct. 1741. . For example, an investigation must include a home visit, and the DCF is required to prepare a written report of the investigation which includes “a review of criminal conviction information concerning the person or persons alleged to be responsible for [the suspected] abuse or neglect and previous allegations of abuse or neglect relating to the child or other children residing in the household or relating to family violence.” Conn. Gen.Stat. § 17a-101g(b). .Emergency removal under § 17a-101g(c) may not exceed 96 hours. If a child is not returned home within 96 hours, foster care proceedings pursuant to Conn. Gen.Stat. § 46b-129 must be initiated. See Conn. Gen. Stat. § 17a-101g(c). . We need not decide at this juncture whether plaintiffs' alleged \"entitlement” to removal pursuant to § 17a-101g(c) is best characterized as a liberty interest or a properly interest for due process purposes. . In Gonzales, as in this case, the state statute at issue mandates official action only upon an initial finding of \"probable cause.” We agree with the Tenth Circuit's conclusion that such a statute may nonetheless mandate a defined outcome, thus creating a protected interest for procedural due process purposes. See Gonzales, 307 F.3d at 1266 (rejecting argument “that because the officer's mandatory [statutory] duty to arrest only arises upon the existence of facts giving rise to probable cause, no legitimate claim of entitlement can ever exist”). Accepting the truth of plaintiffs' allegations, we must assume that defendants had probable cause to believe that immediate removal of plaintiffs from their home was necessary to prevent imminent physical harm and inquire as to whether § 17a-101g(c) mandates removal where such probable cause exists. . Although the parties did not request certification, we are empowered to seek certification nostra sponte. See 2d Cir. R. § 0.27. . Defendants urge us to dismiss" }, { "docid": "1013702", "title": "", "text": "years since DeShaney no other circuit has ventured this far. However, in a similar case the Second Circuit, citing the panel decision, certified a question about the reach of a child welfare statute to the Connecticut Supreme Court. Sealed v. Sealed, 332 F.3d 51 (2d Cir.2003). . All circuits reaching the merits have gone the other way. Jones v. Union County, Tenn., 296 F.3d 417, 429 (6th Cir.2002) (holding, among other things, that a state actor's violation of a Tennessee statute providing, \"[t]he court shall cause a copy of the [family violence] petition ... to be served upon the respondent at least five (5) days prior to such hearing” did not qualify as a state created liberty or property interest under Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (emphasis added)); cf., Matthews v. Pickett County, Tenn., 996 S.W.2d 162 (Tenn.1999) (allowing a state tort action against police officers who negligently failed to arrest a restrained person when requested by the victim); Doe by Fein v. District of Columbia, 93 F.3d 861 (D.C.Cir.1996) (rejecting a procedural due process claim for failing to effectuate child abuse protective services, finding there is no entitlement to such protective services under mandatory child abuse statute); Harrill v. Blount County, Tenn., 55 F.3d 1123, 1125 (6th Cir.1995) (a Tennessee statute requiring an arrestee to be given an opportunity to make a phone call before \"booking” did not create a protected property or liberty interest); Doe v. Milwaukee County, 903 F.2d 499 (7th Cir.1990) (rejecting a procedural due process claim for failing to investigate child abuse, finding no \"entitlement” in such procedures — no entitlement triggering due process protection in statutorily required child abuse investigation). See also Archie v. Racine, 847 F.2d 1211 (7th Cir.1988) (no property interest in required fire protection—prior to DeShaney), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989); Pierce v. Delta County Dep’t of Social Svcs., 119 F.Supp.2d 1139 (D.Colo.2000) (rejecting a procedural due process claim for failing to comply with statutory child protection reporting and investigatory procedures," }, { "docid": "20714069", "title": "", "text": "is enforceable through § 1983, and no federal appellate court has considered whether any provision of the current version of CAPTA is privately enforceable. As a matter of first impression, we conclude that the guardian ad litem provision does not create an individual right enforceable through § 1983. The Sixth Circuit and the D.C. Circuit have held that an earlier version of CAP-TA is not privately enforceable. Doe v. District of Columbia, 93 F.3d 861, 866-67 (D.C.Cir.1996); Tony L. v. Childers, 71 F.3d 1182, 1188-89 (6th Cir.1995). That version required that in order to qualify for a grant, a State “shall provide that upon receipt of a report of known or suspected instances of child abuse or neglect,” the State would initiate an investigation and take immediate steps to protect the abused or neglected child. 42 U.S.C. § 5106a(b)(2) (1988) (emphasis added). Despite this mandatory language, both circuits held that CAPTA was not privately enforceable because it did not “mandate a particular means of investigation or state what type of actions must be taken” to protect a child. Tony L., 71 F.3d at 1189; see also Doe, 93 F.3d at 867. The Sixth Circuit also observed that “Congress wanted to leave states a certain amount of discretion in this area.” Id. In 1996, the language of CAPTA was changed substantially. The current version requires each State receiving a grant to submit a plan that “specifies the areas of the child protective services system” that the State will address with its grant money. 42 U.S.C. § 5106a(b)(l)(A). That plan must “contain a description of the activities that the State will carry out,” including, as detailed above, a certification that the State is enforcing a law or operating a program that includes provisions and procedures requiring the appointment of guardians ad litem. 42 U.S.C. § 5106a(b)(2)(B)(xiii). Every federal district court to consider the question has found that the more recent versions of CAPTA do not satisfy the Blessing test. See, e.g., Charlie H, 83 F.Supp.2d at 496-97; AS. v. Tellus, 22 F.Supp.2d 1217, 1224 (D.Kan.1998); Jeanine B., 967 F.Supp. at 1118. These" }, { "docid": "9961533", "title": "", "text": "motion on this point is grounded were summarized by the court in Tony L. By and Through Simpson v. Childers, as follows: State-created liberty interests arise when a state places “substantive limitations on official discretion.” Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983); Kentucky Dep’t of Corrections, 490 U.S. at 462, 109 S.Ct. at 1909-10[, 104 L.Ed.2d 506 (1989)]. A state substantively limits official discretion “by establishing ‘substantive predicates’ to govern official decisionmaking ... and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” Id. (citation omitted). The state statutes or regulations in question also must use “explicitly mandatory language” requiring a particular outcome if the articulated substantive predicates are present. Id. at 463, 109 S.Ct. at 1910.... Finally, the statute or regulation must require a particular substantive outcome. State-created procedural rights that do not guarantee a particular substantive outcome are not protected by the Fourteenth Amendment, even where such procedural rights are mandatory. Pusey v. City of Youngstown, 11 F.3d 652, 656 (6th Cir. 1993) (holding that victim impact law, requiring prosecutor to give notice of trial or guilty plea entry to victim, does not create an interest protected by the Due Process Clause because it only creates expectation of process and not expectation of a particular substantive result), cert. denied, 512 U.S. 1237, 114 S.Ct. 2742, 129 L.Ed.2d 862 (1994). 71 F.3d 1182, 1185 (6th Cir.1995). The statute at issue in Tony L. provided that [u]pon receipt of a report of an abused, neglected or dependent child pursuant to this chapter, the cabinet as the designated agency or its delegated representative shall initiate a prompt investí- gation, take necessary action and shall offer protective services toward safeguarding the welfare of the child. Id. (citation omitted). The court agreed with the plaintiffs not only that the language of the statute was “undoubtedly mandatory,” but that it “mandate[d] action based upon substantive predicates.” Id. at 1186. The court nonetheless concluded that the plaintiffs’ claim of a state-created liberty interest failed “because no particular substantive" }, { "docid": "7187452", "title": "", "text": "of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Where the administrative scheme does not require a certain outcome, but merely authorizes particular actions and remedies, the scheme does not create “entitlements” that receive constitutional protection under the Fourteenth Amendment. See Kelly Kare, Ltd. v. O’Rourke, 930 F.2d 170, 175 (2d Cir.1991) (“If the statute, regulation, or contract in issue vests in the state significant discretion over the ... conferral of [a] benefit, it will be the rare case that the recipient will be able to establish an entitlement to that benefit.”). In support of their due process claims, plaintiffs rely on the statutorily expressed public policy of the state of Connecticut: To protect children whose health and welfare may be adversely affected through injury and neglect ... [and] to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family. Conn Gen Stat. § 17a-101(a). However, this policy statement creates no discrete rights or reasonable expectations in any specific protective measures. See Savage v. Aronson, 214 Conn. 256, 279 n. 25, 571 A.2d 696 (1990) (“[The] general statement of the goals of our child welfare laws, although valuable as an aid in construing ambiguous provisions of such statutes, creates no rights beyond those specifically provided by the statutes intended to implement that statement of policy.”). Plaintiffs also point to the detailed and comprehensive procedures for investigating potential child abuse mandated by state law. We emphasize that such procedures, standing alone, create no independent substantive entitlements, whose deprivation might trigger application of the Due Process Clause. See Olim v. Wakinekona, 461 U.S. 238, 250-61, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (“The State may choose to require procedures ... but in making that choice the State does not create an independent substantive right.”); Hewitt v. Helms, 459 U.S. 460, 471, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (explaining that the" }, { "docid": "4391311", "title": "", "text": "Mo. Rev.Stat. §§ 210.109(3)-(5), (8), (12), (16)-(17) (Supp.1998); 210.145.5-.6, .10-11 (1994). Nor do the statutes define mandatory social services, or dictate how, when, or for how long these social services must be provided. Instead, the statutory language simply mandates particular preliminary actions be undertaken and authorizes the provision of social services, thereby leaving the particular substantive outcome in each case to the sound discretion of trained social workers and law enforcement officers. See id. We agree with the Second Circuit’s ruling that where an administrative process does not require specific substantive outcomes, but merely authorizes and directs particular actions and remedies, the administrative process does not create “entitlements” subject to constitutional protections under the Fourteenth Amendment. See Sealed v. Sealed, 332 F.3d 51, 56 (2d Cir.2003). Other circuits, analyzing similarly drafted child welfare statutes, have reached this same conclusion. See Doe v. Dist. of Columbia, 93 F.3d 861, 868 (D.C.Cir.1996) (declaring “process alone does not give rise to a protected substantive interest: by codifying procedures for investigating child abuse and neglect reports, D.C. has not assumed a constitutional obligation to protect children from such abuse and neglect”); Tony L. v. Childers, 71 F.3d 1182, 1186 (6th Cir.1995) (ruling state-created procedural rights “only give Plaintiffs an expectation that a certain procedure will be followed,” and declaring “[a]n expectation that some sort of action will be taken is not enough.... [A] plaintiff must have an expectation that a particular result will follow from a particular, required action.”); Doe v. Milwaukee County, 903 F.2d 499, 503-04 (7th Cir.1990) (rejecting a procedural due process claim for failing to investigate child abuse, finding no “entitlement” in such procedures, and ruling the “procedures themselves are not ‘benefits’ within the meaning of Fourteenth Amendment jurisprudence”). Recently, in a case filed by children alleging abuse while in foster care, a recognized exception under DeShaney, the Second Circuit ruled that “the detailed and comprehensive procedures for investigating potential child abuse mandated by state law[J ... standing alone, create no independent substantive entitlements, whose deprivation might trigger application of the Due Process Clause.” Sealed, 332 F.3d at 57. The Second" }, { "docid": "4391306", "title": "", "text": "Thompson, 490 U.S. at 461, 109 S.Ct. 1904. “[T]he most common manner in which a State creates a liberty interest is by establishing ‘substantive predicates’ to govern official decision-making, and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” Id. at 462, 109 S.Ct. 1904 (citation omitted). The Court also articulated a requirement that statutes and regulations must contain “ ‘explicitly mandatory language,’ i.e., specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow, in order to create a liberty interest.” Id. at 463, 109 S.Ct. 1904. “In sum, the use of ‘explicitly mandatory language,’ in connection with -the establishment of ‘specified substantive predicates’ to limit discretion, forces a conclusion that the State has created a liberty interest.” Id. , Sections 210.109 and 210.145 charged DFS personnel with the duties of receiving reports of child abuse and neglect, and determining whether a family assessment and services approach or an investigation should be employed to respond to the report. See Mo.Rev.Stat. § 210.109.3(l)-(2) (Supp.1998). In cases in which a child abuse report, if true, would constitute a crime or attempted crime against the subject child or children, the statutes required DFS personnel to conduct an investigation, contact the appropriate law enforcement - agency, provide law enforcement with a detailed report, and request its assistance. Id. §§ 210.109.3(3)-(4); 210.145.5 (1994). The statutes also mandated that, within twenty-four hours of receiving such a report, JDFS personnel must initiate a thorough .investigation, including -direct observation of any subject child or children reported to be in danger of serious physical harm or threat of life. Id. §§ 210.109.3(5); 210.145.6. Furthermore, the statutes • required DFS personnel to provide protective and preventive services to the subject child or children and to others in the home. Id. §§ 210.109.3(8), (12), (16)-(17); 210.145.10-11. We have not considered previously whether these challenged Missouri child protection statutes bestow upon reportedly abused children a property or liberty interest in social services. We have, however, previously considered an identical issue in the context of a" } ]

[ { "docid": "12095891", "title": "", "text": "the judge erred when he refused to require a grant of immunity for a defense requested witness. In United States v. Martin, No. 78 1151, 9 M.J. 731 (NCMR 1979), on reconsideration, 9 M.J. 746 (NCMR 1980), this Court was confronted with a similar issue, whether the convening authority abused his discretion by refusing to grant testimonial immunity to a witness called by the defense. In that case, when the witness refused to answer certain questions, the judge directed the trial counsel to present the matter to the convening authority to ascertain if he would grant testimonial immunity. The convening authority declined to grant immunity, thus prompting the abuse of discretion assignment of error. This Court found no abuse of discretion on the basis that there had been no showing that the convening authority’s action was “unreasonable, arbitrary, exceeded the bounds of reason or showed an unconscionable attitude.” In the instant case, appellant requested that the convening authority grant testimonial immunity to two witnesses to enable their being called as material defense witnesses. Both of these prospective witnesses had been convicted by general courts-martial of charges arising from the same acts for which appellant was being tried. The convening authority denied the request for immunity and at trial the defense requested that the military judge order testimonial immunity for the two witnesses after an offer of proof as to their expected testimony was submitted. The judge treated the defense request as a motion for appropriate relief under military practice and procedure and ruled with respect to the first witness that if he was called and invoked his privilege against self-incrimination the judge would abate the proceedings until the witness could be compelled to testify pursuant to a grant of use or testimonial immunity. The judge declined to so rule with regard to the other witness who was appealing his conviction of a substantially identical offense. The effect of these rulings was that the first witness was thereafter granted immunity by the convening authority but the other was not. Appellant argues that the judge erred in not requiring a grant of" } ]

[ { "docid": "14503616", "title": "", "text": "Opinion COX, Judge: Appellant was tried by general court-martial on February 22 and 23, 1982. The court was convened at Mannheim, Federal Republic of Germany, and was composed of officer and enlisted members. Despite his pleas, he was found guilty of taking indecent liberties with and committing lascivious acts upon his daughter, who was under 16 years of age, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. He was sentenced to be confined for 5 years; to forfeit all pay and allowances; to be reduced to pay grade E-l; and to receive a bad-conduct discharge from the Army. The convening authority reduced the confinement to 3 years but otherwise approved the findings and sentence as adjudged. The Court of Military Review affirmed. 18 M.J. 559 (1984). This is yet another child-abuse case where the Government proved its case through use of an accused’s confession and statements made to an intermediary by the complaining witness. See United States v. Barror, 23 M.J. 370 (C.M.A.1987), and United States v. Hines, 23 M.J. 125 (C.M.A.1986). The victim failed to appear at trial. Furthermore, in spite of defense counsel’s objection, she was not subpoenaed; the military judge did not abate the proceedings until she was available; she was not deposed pretrial; and no other legal means were employed to compel her to appear. Indeed, although the Government made some informal effort to locate the witness, trial counsel’s assertions to the court members made it abundantly clear that he had no intention of calling the witness to the stand. Instead, he said he would rely on appellant’s confession and statements madé by the victim to her school counselor, the school nurse, and agents of the Criminal Investigation Command (CID) to corroborate that confession. According to the Government, on the night of November 5, 1981, appellant approached his 13-year-old daughter in the kitchen of their home “and felt her up” by fondling “her pubic area.” Later that evening, he entered her bedroom and told her to remove her underpants, which she did. Appellant heard his wife coming out of the" }, { "docid": "1186885", "title": "", "text": "After hearing oral argument, we specified this additional issue from the bench: WHETHER THE MILITARY JUDGE ERRED BECAUSE HE HAD A SUA SPONTE DUTY TO LITIGATE, MAKE SPECIAL FINDINGS, AND ISSUE A RULING ON THE VOLUNTARINESS OF APPELLANT’S CONFESSION WHERE APPELLANT DID NOT OBJECT TO ADMISSIBILITY OF HIS CONFESSION PRIOR TO TRIAL PURSUANT TO MILITARY RULE OF EVIDENCE 304 OR PRIOR TO THE CONFESSION’S ADMISSION INTO EVIDENCE AT TRIAL OR AT ANYTIME ON APPEAL. I At trial, the Government relied on circumstantial evidence concerning the offense and on oral statements made by appellant on August 11 to Special Agent Thompson of the Criminal Investigation Command (CID). Although the defense had made various pretrial motions for relief, it made no motion to suppress these statements or any objection at trial to their introduction. The defense presented alibi evidence. Also, both from government and defense witnesses, defense counsel adduced testimony that Miller had ingested alcohol and lysergic acid diethylamide (LSD) shortly before the alleged offenses had occurred. The defense offered two expert witnesses, Dr. Statham and Dr. Brooks, who opined that Miller’s ability accurately to recall and relate the events of the recent past when interrogated by Special Agent Thompson on August 11, would have been impaired by the LSD that he had consumed. Moreover, in response to a question from the judge, Dr. Brooks expressed doubt that Miller would have understood the warning as to his rights that he had received from the CID agent before making any statements. With this evidence in mind, the military judge gave this instruction at the request of the defense: A pretrial statement by the accused has been admitted into evidence through the testimony of Special Agent Thompson. The defense has introduced evidence that the accused’s statement was obtained while he was under thé influence of LSD, hashish and alcohol. It is for you to decide the weight or significance, if any, such a statement deserves under all the circumstances. In deciding what weight or significance, if any, to give to the accused’s statement, you should consider the specific evidence offered on the matter, including" }, { "docid": "1067295", "title": "", "text": "OPINION OF THE COURT WERNER, Senior Judge: Despite his pleas of not guilty, the appellant was convicted by a general court-martial composed of a military judge sitting alone, of conspiracy to wrongfully distribute cocaine and two specifications of wrongfully distributing cocaine in violation of Articles 81 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 912a (1988) [hereinafter UCMJ]. The military judge sentenced him to a bad-conduct discharge, confinement for four years and six months, forfeiture of all pay and allowances, and reduction to Private El. The convening authority approved the sentence as adjudged. In his appellate brief, the appellant has asserted two principal errors. First, he contends that the military judge erroneously failed to invoke the provisions of the Jencks Act, 18 U.S.C. § 3500, by not striking the testimony of a key prosecution witness after the government did not produce tape recordings of the witness’ testimony at the Article 32, UCMJ, investigation. Second, he contends that the military judge violated the provisions of Military Rule of Evidence 404(b) [hereinafter Mil.R.Evid.] by admitting evidence of uncharged misconduct indicating that the appellant was involved in other drug transactions. The appellant has also contended, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), that his trial defense counsel were ineffective. We disagree with all contentions. I. Facts The charges arose out of an undercover drug suppression operation conducted by the Drug Suppression Team (DST) of the Fort Knox, Kentucky, Criminal Investigation Command. In the course of the operation, the DST learned that Ms. Jennetta Scott, a civilian employee at Fort Knox, was selling illicit drugs to servi.cemembers. Special Agent (SA) Mark Clay was assigned the task of contacting Ms. Scott, winning her trust, and purchasing drugs from her with a view towards apprehending her and anyone else involved in the illegal activity. SA Clay did his job well. On 12 June 1991, SA Clay telephoned Ms. Scott and arranged to buy crack cocaine from her at her apartment in Radcliff, Ken tucky. As instructed, he arrived at her apartment building to find Ms. Scott, her brother, and" }, { "docid": "23568579", "title": "", "text": "the defense was provided with Captain Schwoefferman’s address, and a letter was mailed to him on that date. Defense attempts to contact Commander Fitzwilliam were more successful as that officer telephoned defense counsel on January 14 and indicated that he would give very favorable character testimony for the appellant. Although the defense had not contacted three of the witnesses, the military judge observed “that the defense counsel, . has stated exactly the same factors concerning the prospective testimony” of the requested witnesses, i. e., each witness involved had given the appellant a favorable performance evaluation during the period in question. Accordingly, the military judge held: I deem it on their face that these prospective witnesses’ testimony would be cumulative, and on that basis I feel that I would not be remiss in denying some of these witnesses. The military judge did, however, grant appellant’s request for Commander Fitzwilliam, the most recent commanding officer. The appellant entered a plea of guilty to the charged offense, and Commander Fitzwilliam presented favorable testimony during the sentencing portion of the trial. The appellant testified in his own behalf and asked the court members to impose a discharge in lieu of confinement. Defense counsel also made a similar request during his closing argument. Appellant now submits that the failure to produce the other three named witnesses requires reversal. We disagree. Appellant asserts that the provision of paragraph 115a, Manual for Courts-Martial, United States, 1969 (Revised edition), which requires him to submit a request for witnesses through trial counsel, is inconsistent with Article 46, UCMJ, 10 U.S.C. § 846, which assures an accused “equal opportunity” with the Government in the procurement of witnesses. See generally United States v. Williams, 3 M.J. 239, 240 n. 2 (C.M.A.1977), and United States v. Carpenter, 1 M.J. 384, 386 n. 8 (C.M.A.1976). Although trial counsel treated appellant’s initial communication as a request for witnesses, the document was, in substance, an attempt to elicit trial counsel’s aid merely to locate the witnesses. Indeed, the record reflects that trial defense counsel voiced some complaint as to trial counsel’s lack of cooperation in" }, { "docid": "7131618", "title": "", "text": "of a negative result on a urinalysis test that appellant had taken on 14 March 1989. We find no error in the military judge’s ruling. Appellant was charged and found guilty of wrongful use of hashish on divers occasions between on or about 1 February 1988 and 30 September 1988. A negative urinalysis result on a sample taken in March 1989 was not during the period of charged drug use and is not relevant to show a “tendency to cast doubt” on appellant’s hashish use during the charged period. United States v. Farrar, 25 M.J. 856 (A.F.C.M.R.1988); United States v. Johnson, 20 M.J. 610 (A.F.C.M.R.1985). III The third error we address is whether the military judge correctly refused to give an instruction regarding the credibility of informants. The instruction requested by the defense was one that termed informant testimony to be of “questionable integrity” to be considered with “great caution and care.” The proposed instruction also advised that an accused could not be convicted on the “uncorroborated testimony of an informant if that testimony is self-contradicotry (sic), uncertain, or improbable.” When the trial defense counsel was unable to cite any authority to support his instruction, the military judge declined to give it. We agree with the military judge’s position that the instruction on credibility of witnesses contained at paragraph 7-7 of Department of the Army Pamphlet 27-9, Military Judges’ Benchbook (Feb 1989) adequately addressed the issue of credibility of the witnesses who testified at appellant’s trial. Although there is some authority to support giving an instruction, similar to that requested, with respect to accomplice testimony; we are unaware of any requirement to so instruct with respect to informant testimony. See United States v. Lee, 6 M.J. 96 (C.M.A.1978); United States v. Moore, 8 M.J. 738 (A.F.C.M.R.1980), aff'd, 10 M.J. 405 (C.M.A.1981); R.C.M. 918(c) Discussion. IV The next asserted error we address is that trial counsel made an improper comment in sentencing argument that appellant should not be considered for rehabilitation because he had failed to admit his guilt. The government maintains that pointing out appellant’s lack of acknowledgement of guilt" }, { "docid": "18913048", "title": "", "text": "wrongfully convict an individual through subornation of perjury and the making of false statements in a case “related to contemporaneous and somewhat similar events.” Finally, the witness’ crime in the present case is not directly related to the appellant’s criminal misconduct as in United States v. Senft, 274 F. 629 (E.D.N.Y. 1921). Thus, the evidence in the present case is limited to general impeachment. Considering the entire evidence of record, we are convinced that this evidence would not “probably cause a different result.” The decision of the United States Army Court of Military Review is affirmed. The Petition for New Trial is denied. Judge FLETCHER concurs. . In accordance with his pleas, the appellant was acquitted of other offenses. . Paragraph 109d, Manual for Courts-Martial, United States, 1969 (Revised edition), defines this condition as “would probably produce a substantially more favorable result for the accused.” EVERETT, Chief Judge (concurring in part and dissenting in part): I agree with the majority’s disposition of the issue concerning denial of appellant’s request for various witnesses. However, my review of the evidence of record convinces me that the petition for new trial should be granted. In United States v. Chadd, 13 U.S.C.M.A. 438, 32 C.M.R. 438 (1963), we discussed the four requisites for granting a new trial: a. The record of trial, petition, and other matters presented by the accused indicate an injustice may have resulted. b. The evidence in fact is newly discovered. c. Due diligence to discover it was exercised at the time of trial. d. The newly discovered evidence will probably cause a different result when presented to another court-martial. Id. at 442, 32 C.M.R. at 442. See para. 109d, Manual for Courts-Martial, United States, 1969 (Revised edition). In my view, appellant has fulfilled these requirements in the case at hand. Prior to the argument on findings, trial counsel had revealed to defense counsel that an investigation was pending of a government witness, Special Agent Walters of the Criminal Investigation Division (CID). After a continuance had been granted in appellant’s trial because of this pending investigation, the trial was resumed —" }, { "docid": "12122880", "title": "", "text": "truthfulness related to Yarborough, the Government contends that the members were adequately informed about the proper use of the character evidence. Apparently in Robinson a similar general instruction on credibility of witnesses was not viewed as adequate to inform the court members how to use an accused’s evidence of his truthful character. In any event, we believe that, upon proper request, Yarborough was entitled to a more specific instruction about the significance of the testimony by his four character witnesses. Nonetheless, when we consider the ambiguous nature of the defense request for an instruction, Robinson does not require reversal. Furthermore, from our consideration of the instruction given on credibility of witnesses and the other events of the trial, we conclude that Yarborough was not prejudiced by the absence of a more specific instruction about his character evidence. IV The decision of the United States Army Court of Military Review is affirmed. Senior Judge COOK concurs. . Uniform Code of Military Justice, 10 U.S.C. § 839(a). . Apparently, defense counsel was referring to a form instruction in the Military Judges’ Bench-book (DA Pam 27-9). However, we have been unable to locate a form instruction in the bench-book in use at the time which connects an accused's character for truthfulness with his innocence, so we still are uncertain about the precise language she had in mind. . Defense counsel's reference to the form instruction did not clarify the situation very much, because, so far as we can determine, this instruction does not recognize the unique nature of defense evidence that an accused is a truthful person. FLETCHER, Judge (concurring in the result): Chief Judge Everett, the author of the majority opinion in United States v. Robinson, 11 M.J. 218, 220-21 (C.M.A. 1981), stated in that opinion: Since it is well-established that a witness’ truthful character tends to show that his sworn testimony at a trial is truthful [citations omitted], the judge could properly have instructed to this effect. Indeed, since the central issue of the trial was whether appellant or Tipton [the prosecution witness] was testifying truthfully, the military judge would have" }, { "docid": "1186884", "title": "", "text": "Opinion of the Court EVERETT, Chief Judge: A general court-martial composed of officer members tried Miller on charges that “during the early morning hours of 11 August 1987,” he had committed the premeditated murder, felony-murder, and the rape of Specialist Emma Jean Kumre at McNair Kaserne, Federal Republic of Germany, in violation of Articles 118 and 120, Uniform Code of Military Justice, 10 USC §§ 918 and 920, respectively. The charges had been referred as capital by the convening authority. Contrary to his pleas, appellant was found guilty of premeditated murder and rape (the felony-murder charge was dismissed as multiplicious); and the members sentenced him to dishonorable discharge, confinement for life, total forfeitures, and reduction to the grade of E-l. The convening authority approved the sentence; and the Court of Military Review affirmed the findings and sentence. 28 MJ 998 (1989). We granted appellant’s petition for review on this issue: WHETHER THE FAILURE OF THE MILITARY JUDGE TO GIVE AN INSTRUCTION SUA SPONTE ON THE VOLUNTARINESS OF THE CONFESSION PREJUDICED THE SUBSTANTIAL RIGHTS OF APPELLANT. After hearing oral argument, we specified this additional issue from the bench: WHETHER THE MILITARY JUDGE ERRED BECAUSE HE HAD A SUA SPONTE DUTY TO LITIGATE, MAKE SPECIAL FINDINGS, AND ISSUE A RULING ON THE VOLUNTARINESS OF APPELLANT’S CONFESSION WHERE APPELLANT DID NOT OBJECT TO ADMISSIBILITY OF HIS CONFESSION PRIOR TO TRIAL PURSUANT TO MILITARY RULE OF EVIDENCE 304 OR PRIOR TO THE CONFESSION’S ADMISSION INTO EVIDENCE AT TRIAL OR AT ANYTIME ON APPEAL. I At trial, the Government relied on circumstantial evidence concerning the offense and on oral statements made by appellant on August 11 to Special Agent Thompson of the Criminal Investigation Command (CID). Although the defense had made various pretrial motions for relief, it made no motion to suppress these statements or any objection at trial to their introduction. The defense presented alibi evidence. Also, both from government and defense witnesses, defense counsel adduced testimony that Miller had ingested alcohol and lysergic acid diethylamide (LSD) shortly before the alleged offenses had occurred. The defense offered two expert witnesses, Dr. Statham and Dr." }, { "docid": "1102715", "title": "", "text": "recruit, its interpretation as supporting void enlistments simply on the basis of a nonwaivable regulatory disqualification is deemed untenable. To do otherwise would subject the enlistment contract law principles announced in Grimley to the innumerable variables of the non-uniform regulations for enlistment of each service. We do not believe, that the violation of these regulations encompass in themselves an inherent vice, so contemplated by the Supreme Court, to automatically void an enlistment contract. Accordingly, the appellant’s enlistment was valid for purpose of court-martial jurisdiction. II The initial motion made by trial defense counsel requested the presence of three witnesses to testify to the circumstances surrounding the appellant’s enlistment in the Army. After hearing testimony from the appellant and evaluating the defense requests for witnesses, the military judge ordered the production of the recruiter but denied the motion for the civilian prosecutor and the appellant’s civilian defense counsel for the earlier civilian charges. There is no legitimate averment in the record of trial of the materiality of these two denied witnesses to put the military judge on notice that they may offer proof to negate the government’s evidence or support the defense. See United States v. Lucas, 5 M.J. 167 (C.M.A.1978); United States v. Iturralde-Aponte, 1 M.J. 196, 198 (C.M.A.1975). Indeed, the stipulations of testimony offered by the defense later in the court-martial provide no indication that such testimony would have been elicited from these witnesses on behalf of the defense. Under these circumstances, we are reluctant to conclude the military judge erred in denying this part of the appellant’s motion. The decision of the United States Army Court of Military Review is affirmed. Judge PERRY concurs. . The appellant’s court-martial took place on April 8, 1975, and May 6, 1975. Our decision in United States v. Jackson, 3 M.J. 101 (C.M.A.1977), renders our holding in United States v. Courtney, 1 M.J. 438 (C.M.A.1976), inapplicable to the present case. . Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839(a). . United States v. Catlow, 23 U.S.C.M.A. 142, 146, 48 C.M.R. 758, 762 (1974); United States v. Overton, 9 U.S.C.M.A." }, { "docid": "18913049", "title": "", "text": "of the evidence of record convinces me that the petition for new trial should be granted. In United States v. Chadd, 13 U.S.C.M.A. 438, 32 C.M.R. 438 (1963), we discussed the four requisites for granting a new trial: a. The record of trial, petition, and other matters presented by the accused indicate an injustice may have resulted. b. The evidence in fact is newly discovered. c. Due diligence to discover it was exercised at the time of trial. d. The newly discovered evidence will probably cause a different result when presented to another court-martial. Id. at 442, 32 C.M.R. at 442. See para. 109d, Manual for Courts-Martial, United States, 1969 (Revised edition). In my view, appellant has fulfilled these requirements in the case at hand. Prior to the argument on findings, trial counsel had revealed to defense counsel that an investigation was pending of a government witness, Special Agent Walters of the Criminal Investigation Division (CID). After a continuance had been granted in appellant’s trial because of this pending investigation, the trial was resumed — apparently after a conversation between appellant’s defense counsel and a CID official concerning the status and progress of the investigation. The election by defense counsel not to seek a further continuance did not reflect any lack of due diligence on his part. Instead, in view of various prior delays in completing appellant’s trial and the uncertainty as to when the investigation of Walters would be completed, the decision to proceed was simply a realistic response to the delay that would be involved in awaiting the end of the investigation. Special Agent Walters was a central prosecution witness. Since the Government did not call an alleged eye witness, Sergeant Evans, its case rested largely on the testimony of Special Agent Walters and of an alleged accomplice, who was testifying under a grant of immunity. Walters had served as an undercover agent for some 3 years and, so far as the trier of fact might discern, was reliable. Certainly much less reliance would have been placed on his tes timony had it been known that, during the" }, { "docid": "343176", "title": "", "text": "196 (C.M.A.1987), appellant never at any time invoked his right to consult with a lawyer. See United States v. Harris, 19 M.J. 331 (C.M.A.1985), rev’d. on reconsideration, 21 M.J. 173 (C.M.A.1985); United States v. Muldoon, 10 M.J. 254 (C.M.A.1981); see also Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Finally, we are convinced beyond a reasonable doubt that the statement was not the product of unlawful coercion. United States v. Schneider, supra. II The second granted issue was raised in the following factual context. Appellant defended against the charge claiming a lack of mental responsibility or insanity. Prior to the testimony of the defense expert psychiatrist, Dr. Bob Rollins, defense counsel moved the admission into evidence of videotapes of the interview of appellant conducted by the witness. The tapes were offered to aid the court members in evaluating the opinion of the psychiatrist. The members “would be able to see his [appellant’s] reaction, to see how he responded to questions, to basically be able to put their own evaluations and to invite — to legitimately evaluate ... [the doctor’s] opinion.” Also, appellant’s expert witness claimed that appellant was hypnotised during some of the interviews, a fact contested by the Government’s experts. The Government objected to the admissibility of the videotaped interviews on two grounds: First, that evidence adduced under hypnosis is not reliable; second, that the evidence is hearsay and would permit appellant to offer his testimony to the members without being called as a witness. The military judge sustained the objection, reasoning that the tapes “would be a left-handed way of putting ... [appellant] on the stand and not being subject to” cross-examination. He also reasoned that the testimony would be cumulative because it was already before the court members through the testimony of the experts. It should first be noted that the military judge did not predicate any of his rulings on the fact that appellant may or may not have been hypnotised. We are not confronted with deciding the" }, { "docid": "12095912", "title": "", "text": "extent indicated above, I answer the questions certified by the Acting Judge Advocate General. The decision of the United States Navy Court of Military Review is affirmed. . This case is before us at the request of the Acting Judge Advocate General of the Navy. See Article 67(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2). Appellate defense counsel and government counsel both refer to Private Villines as appellant on the certified question apparently because his conviction was affirmed by the Court of Military Review. Cf. Rule 7, Court of Military Appeals, Rules of Practice and Procedure, 4 M.J. XCVIII. In view of Rule 31, id. at CXVII, we also shall refer to Private Villines as appellant. . Appellant was also found guilty of two specifications of unauthorized absence, in violation of Article 86, UCMJ, 10 U.S.C. § 886, which are unrelated to the certified question. . See 18 U.S.C. § 6002; see also Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). . Defense counsel also requested that testimonial immunity be granted to Lance Corporal Paul. . UCMJ, 10 U.S.C. § 839(a). United States v. Martin, 9 M.J. 734 (1979). . Government counsel avers that Private Holodinski was appealing his conviction on the ground that it was secured by the use of perjured testimony. . Transactional immunity may be defined as immunity which protects the witness from criminal prosecution for any act about which he may testify. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). See Green, Grants of Immunity and Military Law, 53 Mil.L.Rev. 1, 4 (1971). Paragraph 68h. Manual for Courts-Martial, United States, 1969 (Revised edition), does not specify the type of immunity, transactional or testimonial, which may be granted. See Article 36(a), UCMJ, 10 U.S.C. § 836(a). . We need not decide whether JAGMAN 0112 prohibits granting immunity to a witness who would testify in favor of the defense or whether such a service regulation so interpreted is lawful within the meaning of the Uniform Code of Military Justice and the Manual for Courts-Martial. See" }, { "docid": "15053040", "title": "", "text": "Opinion of the Court EVERETT, Chief Judge. Contrary to appellant’s pleas, a military judge sitting alone as a special court-martial found him guilty of distributing 17 grams of marihuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The convening and supervisory authorities approved these findings and the sentence to a bad-conduct discharge, confinement at hard labor and partial forfeitures of pay for 5 months, and reduction to E-l. After the United States Navy-Marine Corps Court of Military Review affirmed, this Court granted review to consider whether the military judge committed prejudicial error in preventing appellant from introducing evidence of his truthful character. 18 M.J. 292 (1984). I The Government’s case-in-ehief consisted of the testimony of Seaman Gary Wilson, an undercover informant for the Naval Investigative Service. Wilson asked appellant, who was one of his shipmates, “where ... [he] could get some ‘smoke’ and Allard replied that “he’d look around.” Subsequently, Wilson purchased marihuana from appellant. Wilson was cross-examined about his undercover activities; and in response to a government objection to one of the questions, defense counsel explained that he was seeking “to show motive to fabricate.” After the Government rested, appellant took the stand as the only defense witness. According to him, Wilson “wanted to purchase drugs from me, and I told him he was crazy.” The next day, he had a hostile encounter with Wilson. On cross-examination about his relationship with Wilson, appellant testified that, after he had refused to sell drugs, they “exchanged dirty looks” whenever they ran into each other on their ship. In response to the question, “You’re testifying that Wilson is lying,” appellant answered in the affirmative. Upon questioning by the military judge, appellant acknowledged that he believed that Wilson had made up his story because of their argument. In rebuttal, the prosecution called Radioman Chief David Sands to testify about Wilson’s character for truthfulness. The defense objected unsuccessfully on the ground that they had not been informed of this witness, although they had requested such information. Subsequently, the defense proposed to call Lieutenant Herbert Loughery to testify about" }, { "docid": "16010055", "title": "", "text": "of two sworn statements of appellant’s friends, Private First Class DeMott and Specialist Mulcahy who testified in support of appellant’s alibi. In their post-trial statements they admitted to having committed perjury by testifying falsely at appellant’s behest. Inclusion of these two statements was not addressed by the trial defense counsel in his rebuttal to the staff judge advocate’s post-trial review. Further, inclusion of the statements in the review did not result in manifest injustice nor deprive the appellant of any fundamental rights. The content of these statements added nothing new to the substance of the military judge’s sua sponte findings that the testimony about the alibi “was totally unbelievable.” Accordingly, the appellant waived any right to assert this error on appeal. United States v. Goode, 1 M.J. 3 (C.M.A. 1975). Appellant’s last contention that the military judge abandoned his impartial role during his inquiries of defense witnesses is also without merit. The trial judge is not a mere figurehead or an umpire in a trial contest. While he can not lay aside impartiality and become an advocate for one side or the other, he can, and in our view sometimes must, ask questions to clear up uncertainties in the evidence or further develop the facts. Paragraphs 54a, b, Manual for Courts-Martial, United States, 1969 (Revised edition); United States v. Hobbs, 8 M.J. 71 (C.M.A. 1979); United States v. Blackburn, 2 M.J. 929 (A.C.M.R.), pet. denied, 2 M.J. 166 (C.M.A. 1976). In the case at hand the military judge asked follow-up questions of witnesses for both sides. After the defense reopened its case once again attempting to persuade the military judge, the fact finder, that on 15 August 1981, Vance was at Kelly’s Bar, the military judge asked the trial counsel to call personnel from Walson Army Hospital “to testify as to the probability or possibility of Vance being able to leave the hospital on the 15th of August.” At trial the appellant raised no objection to the military judge’s questioning of wit nesses. At this level, his complaint is focused on the military judge’s: (1) attempt to elicit a valid" }, { "docid": "23003239", "title": "", "text": "Article 32 investigation. We cannot locate any summary report of CID Agent Blake’s conversation with Private Davis. Cf. United States v. Lucas, 5 M.J. 167, 173 (C.M.A.1978). Nevertheless, defense counsel on the record and based on this summary report clearly indicated what he expected this witness’ testimony would be. The Government did not specifically challenge the legitimacy of this report but pointed out that it was not a sworn statement nor had defense counsel personally interviewed the witness. Accordingly, we are not precluded as a matter of law from assessing the materiality of this witness’ expected testimony. Cf. id. at 172. Defense counsel averred that Davis would testify that he was awake in his room during the time when the alleged sexual assaults occurred in a laundry room across the hall. Counsel also asserted that this witness would testify that he did not hear screams or any noise during this period. Accordingly, it was incumbent upon the military judge to decide whether this expected testimony was “material.” In other words, would this testimony “negate the Government’s evidence or ... support the defense?” United States v. Iturralde-Aponte, 1 M.J. 196, 198 (C.M.A.1975). The military judge knew from the face of the charges and specifications that the Government had the burden to prove beyond a reasonable doubt that the alleged victim had not consented to certain sexual acts with appellant. See Article 120(a), Uniform Code of Military Justice, 10 U.S.C. § 920(a). Moreover, from an earlier Article 39(a) session, the military judge knew that appellant contended the victim consented to these sexual activities. It was clear that testimony from a third party witness in a position to hear such screams that he heard none could support the defense’s assertion of consent and weaken the government’s case. United States v. Lucas, supra. The Government nonetheless asserted that this testimony was cumulative. See United States v. Williams, 3 M.J. 239 (C.M.A.1977). It pointed out that Private Griffin, the roommate of Private Davis, was available to testify at trial and would testify that he heard no screams up until the time he went to sleep" }, { "docid": "16313307", "title": "", "text": "Opinion of the Court EVERETT, Chief Judge: Contrary to his pleas, appellant was convicted by a special court-martial convened in Korea of having possessed and transferred methamphetamines on January 28, 1978, and of having attempted to possess and to sell methamphetamines on February 4, 1978, in violation of Articles 92 and 80, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 880, respectively. These findings — as well as his sentence to a bad-conduct discharge — were approved by the convening authority and affirmed by the United States Army Court of Military Review. 8 M.J. 757 (1980). We granted review out of concern for the conduct of trial counsel in withholding from the defense certain information impacting upon both the credibility and the competence of a key prosecution witness to the offenses charged. After careful examination of the record and full consideration of the well-argued positions of the parties, we conclude that it was improper for trial counsel not to divulge this information and that the failure of trial counsel to bring this information to the attention of opposing counsel prejudiced appellant’s defense. Reversal of the convictions is therefore required. I Private Timothy Brown was the soldier to whom appellant allegedly transferred methamphetamines on January 28, 1978, when no one else was present. While Brown operated generally under the tutelage of agents of the Army’s Criminal Investigation Division (CID), he did not do so pursuant to specific direction. He had introduced Brickey to an undercover agent on February 3, 1978, which led to the subsequent attempted possession and sale of methamphetamines on February 4. On February 17,1978, prior to referral of the charges against appellant, Brown was routinely reassigned to Fort Lewis, Washington, from Korea, where the offenses allegedly had occurred. Sometime in May 1978, someone — the record does not indicate who — requested that the Fort Lewis CID office conduct a polygraph examination of Brown. However, on May 12, that office sent this message to the Seoul CID office: 1. On 8 May 78 PV2 Brown was admitted to the emergency room, MAMC, suf fering from an" }, { "docid": "12075673", "title": "", "text": "v. Whitley, the appellant unearthed additional evidence of organic brain damage and mental disorders. 945 F.2d 812. The court held this evidence did not implicate the validity of the aggravating circumstances so a rational trier of fact could still have sentenced him to death. Id. In the appellant’s case, we hold that he has failed to show by clear and convincing evidence that, but for constitutional error at his sentencing proceedings, no reasonable court members would have imposed the death penalty under the Uniform Code of Military Justice. XVI. FUNDS FOR AN INDEPENDENT INVESTIGATOR The appellant alleges the military judge denied him due process of law by refusing to grant him the funds to hire an independent investigator. It is clear that an accused is entitled to investigative assistance. See United States v. Garries, 22 M.J. 288 (C.M.A.1986), cert. denied, 479 U.S. 985, 107 S.Ct. 575, 93 L.Ed.2d 578 (1986); United States v. Mustafa, 22 M.J. 165 (C.M.A.1986), cert. denied, 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986). In the majority of cases, the investigative services available in the military are sufficient. Garries, 22 M.J. at 291. Our appellate review of whether or not funds should have been granted involves an assessment of the reasonableness of the military judge’s ruling at the time it was made. We must look at the sufficiency of the accused’s explanation, determine if he showed the requisite need and justification, and decide whether the assistance provided was adequate. See United States v. Mann, 30 M.J. 639 (N.M.C.M.R.1990), review denied, 32 M.J. 45 (C.M.A.1990). The defense team requested assistance early in the proceedings. In response, a Criminal Investigation Command [hereinafter CID] agent was appointed specifically to assist the defense in its investigation. In response to the defense’s request, the CID agent’s actions included locating and interviewing the appellant’s natural father, obtaining blood and saliva samples from two possible suspects, and questioning the Terminal Cab Company drivers. After carefully reviewing the specific requests made by the defense and the information provided in response by the CID agent, we conclude that the assistance provided was adequate" }, { "docid": "15053015", "title": "", "text": "Cf. United States v. Rauhoff 525 F.2d 1170, 1178 (7th Cir. 1975). An exception which admits both appellant’s standing to contest grants of immunity and this Court’s authority to review the legality of such grants exists if the alleged deficiencies of the grants create a likelihood that appellant was deprived of his constitutional or military due process rights to a fair trial by court-martial. See United States v. Martin, 9 M.J. 731, 747-48 (N.C.M.R.1979), aff'd, 13 M.J. 66 (C.M.A. 1982); see also United States v. Maxfield, 43 C.M.R. 336, 337 (C.M.A.1971); cf. United States v. Lenz, 616 F.2d 960, 963 (6th Cir.1980); Earl v. United States, 361 F.2d 531, 534 n. 1 (D.C.Cir.1966). Such is not the situation in this case. These immunized government witnesses were otherwise competent to testify, regardless of the technical validity of their grants of immunity. Mil.R.Evid. 601. Appellant does not assert that the grants of immunity were designed to either expressly or tacitly encourage any type of testimony other than the truth. In fact, the witnesses could, in accordance with the terms of the grants, subsequently be prosecuted if penury were committed. Considering the totality of the circumstances, appellant cannot successfully claim a deprivation of any constitutional or military due process right to a fair court-martial proceeding merely because competent government witnesses testified against him, either voluntarily or pursuant to tendered grants of immunity. Accordingly, appellant is without standing to contest the validity of the grants of immunity to the government witnesses. We have considered the issues personally raised by appellant and all other issues briefed by his counsel and find them to be without merit. The findings of guilty and the sentence are affirmed. Chief Judge SUTER and Judge COHEN concur. . Appellant also maintains that his pretrial confinement status deprived him of his \"constitutional rights to prepare [his] own defense.” Defense Appellate Exhibit A. Our review of the entire record of trial fails to provide any support for this assertion and, in fact, discloses an aggressive and unfettered defense. Moreover, appellant had the opportunity to consult with his defense counsel before trial and" }, { "docid": "18660196", "title": "", "text": "regardless of defense theories or requests. United States v. Stewart, 20 U.S.C.M.A. 300, 43 C.M.R. 140 (1971). See United States v. Sawyer, 4 M.J. 64 (C.M.A.1977); United States v. Graves, 1 M.J. 50 (C.M.A.1975). Any doubt whether the evidence is sufficient to require an instruction should be resolved in favor of the accused. United States v. Staten, 6 M.J. 275 (C.M.A.1979). Nor can we adopt the government’s argument that the defense of entrapment fairly embraces the defense of agent for the buyer. The defenses of entrapment and agency may both be utilized in the same case. See United States v. Henry, 23 U.S.C.M.A. 70, 48 C.M.R. 541 (1974); United States v. Suter, supra. We must turn to the evidence adduced at trial to determine if the defense of agency was, in fact, raised here. In this transaction it is not an unreasonable conclusion that the undercover agents, not the appellant, raised the subject of purchasing drugs and appellant testified that absent their persistence, he “would never have done it.” No evidence points to appellant’s involvement in drugs, or in a continuing relationship with the seller, although he was aware of the seller’s reputation for drug sales. Appellant did not negotiate the price but apparently was unsuccessful in putting the agents in face-to-face contact with the sellers. It is reasonable to view this appellant as a messenger, an agent. He made no assertion about the quality of the drugs. He did not use his own money or make a profit and, as Investigator Lucas confirmed, he did not encourage, request, or accede to future transactions. Thus, our examination of the testimony adduced at trial compels us to conclude that the defense of agency was raised and called for an instruction. Under such circumstances it was prejudicial error to fail to instruct on the agency defense. The decision of the United States Army Court of Military Review is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered. Chief Judge EVERETT concurs." }, { "docid": "21256685", "title": "", "text": "OPINION OF THE COURT TOOMEY, Senior Judge: In accordance with his pleas, appellant was convicted of absence without leave, adultery, and indecent acts with another in violation of Articles 86 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 934 (1988) [hereinafter UCMJ]. Contrary to his pleas, a military judge sitting as a general court-martial found the appellant guilty of rape in violation of Article 120, UCMJ, 10 U.S.C.A. § 920. The military judge found the appellant not guilty of forcible sodomy in violation of Article 125, UCMJ, 10 U.S.C.A. § 925. The convening authority approved the adjudged sentence of a bad-conduct discharge, confinement for thirteen months, and forfeiture of all pay and allowances. This case is before the court for review under Article 66, UCMJ, 10 U.S.C.A. § 866. We have considered the record of trial, appellant’s two assignments of error, matters raised by the appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), and the government’s reply thereto. Appellant contends that the evidence was legally and factually insufficient to prove the crime of rape and that the military judge erred by admitting, over the trial defense counsel’s objection, a Criminal Investigation Command (CID) special agent’s testimony under Military Rule of Evidence 803(1) [hereinafter Mil.R.Evid.], as a present sense impression exception to the hearsay rule. While we find appellant’s second assignment of error to be meritorious, we find any error to be harmless in the total context of the case. We affirm the findings and sentence. LEGAL AND FACTUAL SUFFICIENCY OF THE RAPE GUILTY FINDING LAW The test for legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the government, a court could rationally find the existence of every element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Blocker, 32 M.J. 281, 284 (C.M.A.1991). The test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, this court is" } ]

[ { "docid": "10196137", "title": "", "text": "of the security. 823 F.2d at 189. Then, addressing the effect of bankruptcy upon liens, the court stated that: [t]he presence of the mortgagees in the bankruptcy proceeding requires comment, in view of the old saw (which, as this case shows, is no better than a half- truth) that liens pass through bankruptcy unaffected. See, e.g., In re Tarnow, 749 F.2d 464, 466 (7th Cir.1984) ... If ... liens truly passed through bankruptcy unaffected, the mortgagees would not have been dragged into the bankruptcy proceeding at all, since they were content to foreclose on their liens. But then how are sections 506(a) and (d) — provisions that apply only to liens, and hurt the lienor — ever brought into play? One possibility is that they are brought into play only when the lienor, wanting to have an unsecured claim against the bankrupt estate to the extent of any difference between the value of his lien and the amount of money owed him by the debtor, has voluntarily filed a claim in bankruptcy. This interpretation, which makes section 506 merely an optional creditor’s remedy, is consistent with the notion that liens pass through bankruptcy unaffected, but overlooks the significance of section 506(d) when read together with section 501, which governs proof of claims. Section 501(c) authorizes the debtor as well as the creditor to file a proof of claim, including proof of a secured claim under section 506(a). Such a filing not only drags the secured creditor into the bankruptcy proceeding against his will but brings section 506(d) into play, that is, strips down the lien, even if the lienor would have preferred to bypass the bankruptcy proceeding completely. 823 F.2d at 190-91. Rather than fully rehash that analysis, which is consistent with a majority of courts deciding this issue, the Court will simply follow the reasoning set forth in that decision, which clearly recognizes the applicability of § 506(d) to mortgage and presumably other liens in a Chapter 7 case. This language implicitly sanctions as a legitimate bankruptcy purpose the avoidance of liens on property abandoned by a trustee in" } ]

[ { "docid": "10196126", "title": "", "text": "506(d) raises two questions: 1) whether a debtor can use § 506(d) to strip down liens on property abandoned by the trustee; and 2) assuming that strip down is appropriate, whether it may only be invoked as a device to effectuate the redemption provisions of § 722. Section 506 provides in pertinent part: a) An allowed claim of a creditor secured by a lien on property in which the estate has interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or plan affecting such creditor's interest. d) To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void, unless— 1) such claim was disallowed only under section 502(b)(5) or 502(e) of this title; or (2) such claim is not an allowed secured claim due only to the failure of any entity to file a proof of such claim under section 501 of this title. Under § 506(a), an undersecured allowed claim is bifurcated; the claim is secured to the extent of the value of the debtor’s interest in the collateral and the remaining portion of the claim is unsecured. Under § 506(d), a lien that secures a claim that is not an allowed secured claim is void, with exceptions inapplicable to this case. The plain language of § 506, read as a whole, suggests that subsection (d) includes the undersecured portion of a bifurcated secured claim by operation of subsection (a). There is nothing in the statute that prohibits its application to property that the trustee intends to abandon or limits its application to any particular purpose or chapter of the bankruptcy code. The obvious" }, { "docid": "10560150", "title": "", "text": "unnecessary, and that nothing in the legislative history indicates a desire to eliminate the requirement that only a party in interest can seek lien avoidance. This would be inconsistent with the language of § 506(d) as modified by Congress. In any event, we believe that the Gaglias have an interest sufficient to invoke § 506. Next, the creditors argue that the overall statutory scheme indicates Congress did not intend § 506 to apply to property that is not administered by the estate. They contend that § 506 is designed only to facilitate the administration and distribution of the estate. Thus, by defining what part of a claim is an allowed secured one, § 506 determines the preference of the claim. This includes the extent to which the holder can be protected under the cram down provisions of Chapters 12 and 13, his right to an election or to realize the “indubitable equivalent” of the secured claim in a Chapter 11 proceeding, and his right to be paid first in a Chapter 7 case. See, e.g., In re Dewsnup, 87 B.R. 676, 682 (Bankr.D.Utah 1988). We do not read this limitation into § 506. On its face, that section contains no such restriction. Congress was surely aware that some estates would contain overen-cumbered property with nothing available for unsecured creditors. It certainly realized that in many such cases the trustee might decide not to liquidate the property. Yet Congress did not limit § 506 to cases in which it aids the administration of the estate. In addition, the Code expressly allows the debtor to file a proof of claim even if the creditor has chosen not to do so. 11 U.S.C.A. § 501(c). By doing so, the debtor can draw a creditor into the bankruptcy proceedings and invoke § 506(d). Lindsey, 823 F.2d at 191. This indicates to us that § 506 was intended not only to protect creditors, but is also available as a debtor’s remedy. See id. at 190-91. The SBA also maintains that 11 U.S.C.A. § 362(d)(2) indicates that Congress did not intend to let a Chapter 7" }, { "docid": "10560144", "title": "", "text": "is exactly what section 506(d) on its face says it has.” Id. at 1540. In In re Lindsey, 823 F.2d 189 (7th Cir.1987), the trustee abandoned the estate, which contained no assets of benefit to the unsecured creditors. The bankruptcy court allowed the debtors to avoid liens under § 506 and gave them thirty days to redeem the property by paying the lenders its current market value. Instead, the debtors appealed to the district court, seeking the right to continue payments on the first mortgage (which had become due and payable on their prior default) and to establish a repayment schedule for the second mortgage. The district court denied this relief and the court of appeals affirmed. While not directly ruling on the use of § 506, the court of appeals commented on its application in cases where the property is not liquidated. The court observed that a creditor need not file a claim to preserve his lien, though he could use § 506 to obtain an unsecured claim against the estate for the difference between the value of his lien and the amount he was owed. The court also stated that although a creditor might be content not to participate in the bankruptcy proceedings, a debtor could use 11 U.S.C.A. § 501(c) (West 1979), to force him into the proceedings, and then invoke the avoidance mechanism of § 506(d). Equibank and the SBA counter that § 506(a) does not apply where the debtor has no equity in the property. The first sentence of § 506(a) states that [a]n allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor's interest ... is less than the amount of such allowed claim. 11 U.S.C.A. § 506(a) (emphasis supplied). Relying on the highlighted language, they argue that since the Gaglias have no equity in the property and the" }, { "docid": "16761431", "title": "", "text": "is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim. 11 U.S.C. § 506(a)(1). Moreover, with some exceptions not applicable here, “[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void.... ” 11 U.S.C. § 506(d). Thus, in bankruptcy cases a debtor or trustee may seek to value a creditor’s collateral for the purpose of reducing that creditor’s secured claim to the value of its collateral, while the remaining allowed claim is treated as an unsecured claim. When the secured claim is partially reduced this is known as a “strip down”. When the lien is completely removed because the claim is not secured at all (usually a second or third mortgage on real estate), this is known as a “strip off’. There are limitations on a debtor’s ability to strip down or strip off a lien. First, a chapter 7 debtor may not use section 506 to strip a lien, Dewsnup v. Timm, 502 U.S. 410, 417, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992) (“[T]he creditor’s lien stays with the real property until the foreclosure.”). In Dewsnup, the Supreme Court held that § 506(d) did not mean that a lien would be modified based solely upon a § 506(a) valuation. Instead, it held that § 506(d) acts to avoid liens only if the underlying claim is disallowed. The Court rejected an interpretation of § 506(d) that would depart from the well-established pre-Code rule that liens pass through bankruptcy unaffected. 502 U.S. at 417, 112 S.Ct. 773. Dewsnup was a strip down case, but this Court agrees with the majority of courts, including the only two circuit courts to address the issue, which have interpreted Dewsnup as also prohibiting strip offs in a Chapter 7 case. See, e.g., Talbert v. City Mortgage Servs. (In re Talbert), 344 F.3d 555, 562 (6th Cir.2003); Ryan v. Homecomings Fin. Network, 253 F.3d 778, 783 (4th Cir.2001); In re Laskin, 222 B.R. 872, 876 (9th Cir.BAP1998); In re" }, { "docid": "23629922", "title": "", "text": "behalf of all other defendants at the time of filing their brief in support of the relief sought. The Maitlands state in their brief that the Chapter 7 trustee abandoned the above described real estate because its value did not exceed the amount of the liens asserted against the property. As a result, the Maitlands have sought to declare the un-dersecured portions of the defendant creditors’ claims void pursuant to § 506(d) of the Bankruptcy Code. The issues presented in this proceeding are (1) whether the Maitlands may use § 506(a) to determine the extent of allowed secured claims against their real property and (2) whether they may use § 506(d) to void liens against the property to the extent the liens are undersecured. CONCLUSIONS OF LAW Section 506(a) of the Bankruptcy Code provides that: An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under § 553 of this title, is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor’s interest or the amount so subject to set-off is less than the amount of such allowed claim.... 11 U.S.C. § 506(a). The difficulty this section presents is that § 506(a) seems limited in its application to “property in which the estate has an interest,” and it is clear that if the property never has been property of the estate or if property has been abandoned by the trustee as an asset of the estate, the estate does not have an interest which would allow for a § 506(a) determination. In contrast, § 506(d) provides that “to the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void....” 11 U.S.C. § 506(d). (Emphasis added). The Maitlands have asserted in their brief that § 506(a)" }, { "docid": "18795738", "title": "", "text": "a creditor so listed must file, and that one who fails to do so will not be treated as a creditor “with respect to such claim for the purposes of voting and distribution.” This rule does not, however, extinguish a creditor’s lien as a penalty for failure to file a proof of claim. In fact, the legislative history of § 501(a) indicates that it is “permissive only, and that no creditor is required to file a proof of claim.” 3 Collier on Bankruptcy If 501.01 (15th ed. 1985). However, “the filing of a proof of claim is a prerequisite to the allowance of unsecured claims, including the unsecured portion of a secured claim, and priority claims.” Id. Furthermore, “[fjiling a proof of claim may be unnecessary ... in situations in which the creditor is secured and has not asserted a claim against the estate, and no determination under section 506(d) has been requested.” Id. Section 506(d)(1) is made applicable to Chapter 11 proceedings through § 103(a) of the Bankruptcy Code. The Bankruptcy Court construed § 506(d)(1) to mean that a “valid pre-petition lien remains valid during and after a bankruptcy action unless a party in interest takes affirmative steps to avoid the lien.” (R. 68). Debtor attacks this holding, arguing that the two cases cited by the Bankruptcy Court in support of its holding were decided under Chapter 7, not Chapter 11, and that the different purposes of Chapter 7 (liquidation) and Chapter 11 (reorganization) demand that those decisions not control here. To apply rule of those cases, Debtor argues, would frustrate the terms of the reorganization plan and Congressional intent. To effectuate the purposes of Chapter 11, the Debtor contends that § 1141, not § 506(d)(1), should control. The Debtor argues that the two sections are in conflict, and that the specific provision (§ 1141) should prevail over the general one (§ 506(d)(1)). Debtor asserts that § 1141’s confirmation provisions free all the debtor’s property from any pre-petition liens notwithstanding § 506(d)(1), and vest all the debtor’s property in him free and clear. Debtor argues that the Bankruptcy Court" }, { "docid": "10560161", "title": "", "text": "section 506 merely an optional creditor's remedy, is consistent with the notion that liens pass through bankruptcy unaffected, but overlooks the significance of section 506(d) when read together with section 501, which governs proof of claims. Section 501(c) authorizes the debtor as well as the creditor to file a proof of claim, including proof of a secured claim under section 506(a). Such a filing not only drags the secured creditor into the bankruptcy-proceeding against his will but brings section 506(d) into play, that is, strips down the lien, even if the lienor would have preferred to bypass the bankruptcy proceeding completely. Lindsey, 823 F.2d at 190-91 (citation omitted). A bankruptcy court in the Seventh Circuit has interpreted Lindsey as permitting a Chapter 7 debtor to use § 506 when the property will not be administered. See In re Zlogar, 101 B.R. 1, 9-10 (Bankr.N.D.Ill.1989). . A contrary conclusion might prevent a use of § 506 that would aid in the overall administration of the estate. If the estate has assets available for unsecured creditors, a secured creditor may wish to use § 506 to bifurcate his claim into its secured and unsecured components. He could then assert an unsecured claim and share in the distribution of the estate. Some bankruptcy courts, however, have reasoned that since the estate has no interest in property that is not administered, this relief is precluded. Instead, they require creditors to foreclose on the property and then assert an unsecured claim for the amount of any deficiency. See, e.g., Maitland, 61 B.R. at 134. This denies creditors the more convenient option of asserting an unsecured claim through the lien avoidance mechanism of § 506, a procedure that would aid the overall administration of the estate. This further indicates to us that we should reject the argument that an estate has no interest in property simply because it will not be administered. . If the bankruptcy court improperly values the property, the creditor may not get what he would in liquidation. This risk, however, occurs in other contexts in which a court is required to make" }, { "docid": "10196144", "title": "", "text": "not the liens may be stripped down does not determine whether the Debtor may retain the property. The Seventh Circuit also addressed this issue in Lindsey, 823 F.2d 189. Commenting on the respective rights of debtors and secured creditors in a thorough analysis of this issue, the court stated: ... once the stripdowns were complete and the secured claims allowed in their stripped-down amount, and given that only the two stripped-down creditors were in the picture (for they were senior, and there were not enough assets for junior creditors to get anything), the only thing that remained to do in the bankruptcy proceeding was to discharge the debtors and let the creditors foreclose their stripped-down liens, subject to whatever rights of redemption the debtors might have, under state law, in the foreclosure proceedings ... The main purpose served by section 506 is to put the secured creditor who chooses to pursue his rights in bankruptcy in the same position that he would occupy if he had decided to bypass bankruptcy.... Section 506 gives him a secured interest that he can foreclose on equal to the market value of his interest, and makes him an unsecured creditor for the rest, which is all that a judgment creditor is anyway. The statute is not intended to put him in a grossly inferior position to what he would occupy outside bankruptcy, by denying him all rights of foreclosure after the debtor has defaulted and the lien has been written down ... What the statute does for the debtor (through the interaction of sections 506 and 501) is enable him to precipitate the foreclosure proceedings, which he might want to do, if real estate prices were temporarily depressed, in order to minimize the secured claims and thus increase the amount available for the unsecured creditors. This presupposes a case in which the trustee is standing in the debtor’s shoes and representing the unsecured creditors, rather than a case such as this where the debtor is simply trying to shield as much of his property as possible from the only creditors who are pursuing him." }, { "docid": "17471046", "title": "", "text": "proof of claim in that proceeding. 11 U.S.C. § 501(a). He will do this if he is undersecured, for in that ease merely enforcing his hen would not enable him to collect the en tire debt owed him. His only chance of recovering any part of the amount by which the debt exceeds the value of the lien would be to share in the distribution of the debtor’s estate to the unsecured creditors. 11 U.S.C. § 506(a); In re Tarnow, supra, 749 F.2d at 465. A secured creditor may be dragged into the bankruptcy involuntarily, because the trustee or debtor (if there is no trustee), or someone who might be hable to the secured creditor and therefore has an interest in maximizing the creditor’s recovery, may file a claim on the creditor’s behalf. 11 U.S.C. §§ 501(b), (c); In re Lindsey, 823 F.2d 189, 191 (7th Cir.1987). He may participate in the bankruptcy in order to try to get the automatic stay (11 U.S.C. § 362(d)) lifted to the extent of allowing him to enforce his hen; for the stay apphes to the enforcement of hens. He may want to participate in the bankruptcy proceeding (and so may decide to file a claim) simply because he wants to make sure that the debtor’s estate is not administered in a way that will diminish the value, as distinct from threatening the existence, of his hen. In re CMC Heartland Partners, 966 F.2d 1143, 1147 (7th Cir.1992). The secured creditor does not, by participating in the bankruptcy proceeding through filing a claim, surrender his hen. But this is not to say that the hen is sure to escape unscathed from the bankruptcy. We have mentioned the automatic stay. If the secured creditor’s claim is challenged in the bankruptcy proceeding and the court denies the claim, the creditor will lose the hen by operation of the doctrine of collateral estoppel. 11 U.S.C. § 506(d); In re Tarnow, supra, 749 F.2d at 465-66. He may be forced in the plan of reorganization to swap his hen for an interest that is an “indubitable equivalent”" }, { "docid": "10196136", "title": "", "text": "additional collateral. Shortly after the debtors defaulted on the mortgages, the debtors filed a Chapter 7 petition. The trustee abandoned the property because there was no equity for unsecured creditors. The bankruptcy court found the market value of the real estate to be $233,000. As a result, all of the first mortgage was secured while only $24,000 of the second mortgage was secured. The debtors were given 30 days to redeem their property by paying the creditors $233,000, but the debtors appealed instead of redeeming; the automatic stay was lifted and the creditors began foreclosure proceedings. The debtors argued in the district court that the bankruptcy court should have allowed them to continue to make the monthly payments specified in the first mortgage and established a payment schedule for the stripped-down second mortgage. The district court affirmed the bankruptcy court and the debtors appealed to the Court of Appeals for the Seventh Circuit. The Seventh Circuit noted that the combined effect of § 506(a) and (d) is to strip down a lien to the value of the security. 823 F.2d at 189. Then, addressing the effect of bankruptcy upon liens, the court stated that: [t]he presence of the mortgagees in the bankruptcy proceeding requires comment, in view of the old saw (which, as this case shows, is no better than a half- truth) that liens pass through bankruptcy unaffected. See, e.g., In re Tarnow, 749 F.2d 464, 466 (7th Cir.1984) ... If ... liens truly passed through bankruptcy unaffected, the mortgagees would not have been dragged into the bankruptcy proceeding at all, since they were content to foreclose on their liens. But then how are sections 506(a) and (d) — provisions that apply only to liens, and hurt the lienor — ever brought into play? One possibility is that they are brought into play only when the lienor, wanting to have an unsecured claim against the bankrupt estate to the extent of any difference between the value of his lien and the amount of money owed him by the debtor, has voluntarily filed a claim in bankruptcy. This interpretation, which" }, { "docid": "6442770", "title": "", "text": "is the balance of the debt. 11 U.S.C. § 506(a). The Rules no longer use the terms “secured creditor” and “unsecured creditor,” but substitute the terms “secured claim” and “unsecured claim.” 1983 Editors’ Comment, Norton Bankruptcy Law and Practice 1987 at p. 175. It appears that Transamerica could have had both a secured claim and an unsecured claim. Although filing a proof of claim is permissive, it is a necessary condition to the allowance of an unsecured claim. See In re Francis, 15 B.R. 998, 1004 (Bankr.E.D.N.Y.1981); see also Collier on Bankruptcy, ¶ 501.01 at 501-2, 501-3 (15th Ed.1988). The creditor retained its lien on the house for this unfiled portion of the debt and collected from the foreclosure. The portion of the debt that was not collected from the sale of the collateral is discharge-able: A lienor need not, in order to enforce his lien, file a claim in his debtor’s bankruptcy proceeding, though if he does not he loses the chance of enforcing any deficiency judgment against the assets of the bankruptcy estate. Matter of Lindsey, 823 F.2d 189, 190 (7th Cir.1987). Transamerica is correct in its assertion that the debtor is bound by the provisions of the confirmed plan regardless of the subsequent sale or devaluation of the collateral. 11 U.S.C. § 1327(a). The creditor is also bound. Id. See In re Winterfeldt, 28 B.R. 486 (Bankr.E.D.Wis.1983); In re Abercrombie, 39 B.R. 178, 179 (N.D.Ga.1984). This, however, does not relieve the creditor of its obligation to file a proof of claim if it wishes to recover from the bankruptcy estate. See Bankruptcy Rule 3002(a). Even though the debtor makes provision for a creditor in the plan, if the creditor has not filed a claim, it is not entitled to distribution under the plan, and the debtor is entitled to a discharge of that debt. In re Brown, 27 B.R. 771, 773 (Bankr.N.D.Ill.1983). Likewise, an un-dersecured creditor that does not file a claim can recover only from the collateral and not from the plan payments made to the Chapter 13 trustee. In re de Jesus, 17 B.R. 918" }, { "docid": "10560159", "title": "", "text": "to the SBA. The bankruptcy court held that In re Simonson, 758 F.2d 103 (3d Cir.1985), precluded avoidance of judicial liens. In re Gaglia, 76 B.R. 82, 85 (Bankr.W.D.Pa.1987). The district court concluded that the Gaglias had waived this issue by not raising it on appeal from the bankruptcy court. In re Gaglia, 97 B.R. 250, 250 n. 1 (W.D.Pa.1989). Since the Gaglias do not challenge this aspect of the district court's order, we too need not address the issue. . Since the bankruptcy court held that the Gagli-as could not avoid the liens, it did not determine the value of the property. . Section 506 applies in Chapter 7 proceedings. See 11 U.S.C.A. § 103(a) (West Supp.1989). . The Seventh Circuit’s cogent explanation of the use of § 506 merits repeating at length: The presence of the mortgagees in the bankruptcy proceeding requires comment, in view of the old saw (which, as this case shows, is no better than a half-truth) that liens pass through bankruptcy unaffected. A lienor need not, in order to enforce his lien, file a claim in his debtor’s bankruptcy proceeding, though if he does not he loses the chance of enforcing any deficiency judgment against the assets of the bankrupt estate. Since the Lind-seys had no assets other than those secured by the mortgages, the mortgagees had no incentive to seek a deficiency judgment, hence no incentive to file a claim in bankruptcy. If, therefore, liens truly passed through bankruptcy unaffected, the mortgagees would not have been dragged into the bankruptcy proceeding at all, since they were content to foreclose on their liens. But then how then are sections 506(a) and (d) — provisions that apply only to liens, and hurt the lienor — ever brought into play? One possibility is that they are brought into play only when the lienor, wanting to have an unsecured claim against the bankrupt estate to the extent of any difference between the value of his lien and the amount of money owed him by the debtor, has voluntarily filed a claim in bankruptcy. This interpretation, which makes" }, { "docid": "11722578", "title": "", "text": "proceeding. Bankruptcy Code § 506(a)(1) provides in pertinent part: An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor’s interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest. 11 U.S.C. § 506(a)(1). Bankruptcy Code § 506(d) provides To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void, unless — (1) such claim was disallowed only under section 502(b)(5) or 502(e) of this title; or (2) such claim is not an allowed secured claim due only to the failure of any entity to file a proof of such claim under section 501 of this title. 11 U.S.C. § 506(d). The Supreme Court analyzed these two provisions in depth in Dewsnup. The Supreme Court was called on to resolve a conflict between the Circuit Courts over whether a Chapter 7 debtor could, based on the fair market value of real property, “strip down” the secured creditor’s partially secured lien by reducing the amount of the debt to the “secured” portion of the lien and voiding the lien to the extent the lien exceeded the value of the property. The Supreme Court’s ruling turned on the meaning of the words “allowed secured claim” contained in Bankruptcy Code § 506(d). Did it mean, as urged by the debtors, that if a claim secured by a lien on property exceeded the" }, { "docid": "10560151", "title": "", "text": "In re Dewsnup, 87 B.R. 676, 682 (Bankr.D.Utah 1988). We do not read this limitation into § 506. On its face, that section contains no such restriction. Congress was surely aware that some estates would contain overen-cumbered property with nothing available for unsecured creditors. It certainly realized that in many such cases the trustee might decide not to liquidate the property. Yet Congress did not limit § 506 to cases in which it aids the administration of the estate. In addition, the Code expressly allows the debtor to file a proof of claim even if the creditor has chosen not to do so. 11 U.S.C.A. § 501(c). By doing so, the debtor can draw a creditor into the bankruptcy proceedings and invoke § 506(d). Lindsey, 823 F.2d at 191. This indicates to us that § 506 was intended not only to protect creditors, but is also available as a debtor’s remedy. See id. at 190-91. The SBA also maintains that 11 U.S.C.A. § 362(d)(2) indicates that Congress did not intend to let a Chapter 7 debtor remain in his home as part of his fresh start. Section 362(d)(2) requires the bankruptcy court to grant relief from the automatic stay if “(A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization.” 11 U.S.C.A. § 362(d)(2). The SBA asserts that because secured creditors can have the stay lifted and foreclose against the property, Congress contemplated that all of a debtor’s non-exempt property would be liq uidated in a Chapter 7 proceeding. Congress, the argument goes, therefore did not intend that a Chapter 7 debtor’s right to a fresh start would include the right to securely occupy his overencumbered property- The SBA misses the mark. Section 362(d)(2) allows a secured creditor, in certain situations, to realize the amount of his secured claim before the proceedings end. This does not mean that Congress intended the entire claim to remain secured if the property was not liquidated. It indicates only Congress’s desire to allow the secured creditor a means to obtain the value" }, { "docid": "10560162", "title": "", "text": "secured creditor may wish to use § 506 to bifurcate his claim into its secured and unsecured components. He could then assert an unsecured claim and share in the distribution of the estate. Some bankruptcy courts, however, have reasoned that since the estate has no interest in property that is not administered, this relief is precluded. Instead, they require creditors to foreclose on the property and then assert an unsecured claim for the amount of any deficiency. See, e.g., Maitland, 61 B.R. at 134. This denies creditors the more convenient option of asserting an unsecured claim through the lien avoidance mechanism of § 506, a procedure that would aid the overall administration of the estate. This further indicates to us that we should reject the argument that an estate has no interest in property simply because it will not be administered. . If the bankruptcy court improperly values the property, the creditor may not get what he would in liquidation. This risk, however, occurs in other contexts in which a court is required to make a valuation. Indeed, when § 506 is applied, a secured creditor is disadvantaged if the bankruptcy court undervalues the property. The law generally assumes that these valuations are reasonable approximations of the market and we shall do likewise. Of course, applying § 506 here denies the creditor any increase in value of the property. However, he would not receive that increase if the property were liquidated. See In re Tanner, 14 B.R. 933, 937 (Bankr.W.D.Pa.1981) (\"At a forced sale the Debtor does not retain title to the property and the overvalued lien holder would not gain from future appreciation or increases in the equity.”). . Equibank argues that the claim that a lien secures must be disallowed before it can be avoided. Whatever validity this position may have had under the earlier version of § 506(d), it is untenable after the 1984 amendments. See Folendore, 862 F.2d at 1539 (in a pre-amendment case, adopting majority view that § 506(d) may be used even if claim is not disallowed and noting that under 1984 amendments there" }, { "docid": "18673488", "title": "", "text": "and effective method of discouraging [late claims] is to dismiss the claim (that is, the claim against the bankrupt estate, as distinct from the claim against the collateral itself), out of hand, because it is untimely.” 749 F.2d at 466. Accordingly, the court concluded that the secured creditor’s lien survived, but its unsecured claim for any deficiency was time-barred. See also In re Lindsey, 823 F.2d 189, 190 (7th Cir.1987) (lienor need not file a proof of claim in bankruptcy to enforce its lien). Judge Coar of this court, relying on Tar-now, has succinctly explained: If the mortgagor files a Chapter 7 petition and receives a discharge, it is clear that it is no longer personally liable on the note. The mortgagee can only look for in rem satisfaction of the debt. It is well settled that valid liens that have not been disallowed or avoided survive the discharge of the underlying debt. In re Ryan, 100 B.R. 411, 415 (Bankr.N.D.Ill.1989). As the reasoning in Tamow and Ryan indicates, under the Bankruptcy Code the mere fact that Plaintiffs’ federal income tax obligations are dischargeable in bankruptcy does not mean that the IRS’s tax liens are invalid. Without a lien, the IRS would have only an unsecured claim against Plaintiffs’ bankruptcy estate. The underlying unsecured tax obligation would be discharged in bankruptcy, but the claim would entitle the IRS to participate in distribution of estate assets, if any. When the IRS took the additional step of obtaining the tax lien it acquired an additional bundle of rights. The IRS became a se cured creditor under 11 U.S.C. § 506(a). As such the IRS became entitled to certain rights, including the right to have its interest in Plaintiffs’ property adequately protected during the reorganization proceeding. See 11 U.S.C. § 362(d). Further, as explained in Tarnow and Ryan, the IRS’s rights against the liened property survive the bankruptcy notwithstanding the fact that the underlying obligations are dis-chargeable. See generally Lindsey, 823 F.2d at 191 (“The main purpose served by section 506 is to put the secured creditor who chooses to pursue his rights" }, { "docid": "2141627", "title": "", "text": "are available to Plaintiff to obtain the monetary redress sought for asserted violation of § 506:(1) “lien stripping” pursuant to 11 U.S.C. § 506 itself, and (2) imposition of sanctions under Fed. R. Bankr.P. 9011. Under the Bankruptcy Code, a creditor who claims that its debt is secured must state the value of its collateral on the proof of claim form, Official Form 10, and file it with the Clerk of the Bankruptcy Court. Instructions on Official Form 10 and in provisions of Bankruptcy Code § 506 make clear that a claim is unsecured to the extent that the value of such property is less than the amount claimed. Section 506 provides that an allowed claim “is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property.” A secured creditor is thereby called on to apportion its claim between secured and unsecured, and its claim is secured only to the extent of the collateral value. 11 U.S.C. § 506. That portion of its claim in excess of the collateral value is unsecured. After a creditor files a proof of claim, the debtor may object to the claim pursuant to 11 U.S.C. § 502(b). A filed claim is deemed allowed unless objected to. 11 U.S.C. § 502(a). The Rules fix no time limit for filing an objection to allowance of a claim, though a court order may do so. A debtor is thereby permitted to modify the creditor’s asserted rights to a secured claim through a process known colloquially as “lien stripping,” by which an objection filed to the claim, if successful, “strips down” a creditor’s lien so it can be satisfied by paying only the collateral value. In re Bank One, 183 B.R. 509, 512 (N.D.Ill.1995). Section 506(a) divides or bifurcates the creditor’s claim into two components, partly secured, partly unsecured. Section 506(d) voids any lien against a debtor that is not an “allowed secured claim.” Under § 502(b), once the objection is asserted, the amount of secured claim is to be determined by the bankruptcy judge after notice and" }, { "docid": "10560160", "title": "", "text": "enforce his lien, file a claim in his debtor’s bankruptcy proceeding, though if he does not he loses the chance of enforcing any deficiency judgment against the assets of the bankrupt estate. Since the Lind-seys had no assets other than those secured by the mortgages, the mortgagees had no incentive to seek a deficiency judgment, hence no incentive to file a claim in bankruptcy. If, therefore, liens truly passed through bankruptcy unaffected, the mortgagees would not have been dragged into the bankruptcy proceeding at all, since they were content to foreclose on their liens. But then how then are sections 506(a) and (d) — provisions that apply only to liens, and hurt the lienor — ever brought into play? One possibility is that they are brought into play only when the lienor, wanting to have an unsecured claim against the bankrupt estate to the extent of any difference between the value of his lien and the amount of money owed him by the debtor, has voluntarily filed a claim in bankruptcy. This interpretation, which makes section 506 merely an optional creditor's remedy, is consistent with the notion that liens pass through bankruptcy unaffected, but overlooks the significance of section 506(d) when read together with section 501, which governs proof of claims. Section 501(c) authorizes the debtor as well as the creditor to file a proof of claim, including proof of a secured claim under section 506(a). Such a filing not only drags the secured creditor into the bankruptcy-proceeding against his will but brings section 506(d) into play, that is, strips down the lien, even if the lienor would have preferred to bypass the bankruptcy proceeding completely. Lindsey, 823 F.2d at 190-91 (citation omitted). A bankruptcy court in the Seventh Circuit has interpreted Lindsey as permitting a Chapter 7 debtor to use § 506 when the property will not be administered. See In re Zlogar, 101 B.R. 1, 9-10 (Bankr.N.D.Ill.1989). . A contrary conclusion might prevent a use of § 506 that would aid in the overall administration of the estate. If the estate has assets available for unsecured creditors, a" }, { "docid": "10196145", "title": "", "text": "secured interest that he can foreclose on equal to the market value of his interest, and makes him an unsecured creditor for the rest, which is all that a judgment creditor is anyway. The statute is not intended to put him in a grossly inferior position to what he would occupy outside bankruptcy, by denying him all rights of foreclosure after the debtor has defaulted and the lien has been written down ... What the statute does for the debtor (through the interaction of sections 506 and 501) is enable him to precipitate the foreclosure proceedings, which he might want to do, if real estate prices were temporarily depressed, in order to minimize the secured claims and thus increase the amount available for the unsecured creditors. This presupposes a case in which the trustee is standing in the debtor’s shoes and representing the unsecured creditors, rather than a case such as this where the debtor is simply trying to shield as much of his property as possible from the only creditors who are pursuing him. Another reason for the debtor’s wanting to precipitate foreclosure, however, is fear that a lienor might hang back till the debtor had been discharged and then foreclose and obtain a deficiency judgment. This tactic might impede the debtor’s “fresh start”; section 506(d), read together with section 501(c), enables the debtor to scotch the tactic. In either situation, though, all the debtor can do is accelerate the foreclosure; he cannot postpone it, let alone (as the debtors in this case seek to do) prevent it. Id. at 191-92. Implicitly, this analysis treats valuation under § 506 as a sale in that the market value of the property is determined and the value of the secured claim is set. Upon foreclosure, the secured party is allowed to foreclose its security interest and obtain an amount equal to the market value of its interest. Presumably, any remaining proceeds would belong to the debtor. The lienholders concede that § 506 contemplates that valuation simulates the result of the sale. Their disagreement with the use of § 506(d) here stems" }, { "docid": "10560145", "title": "", "text": "between the value of his lien and the amount he was owed. The court also stated that although a creditor might be content not to participate in the bankruptcy proceedings, a debtor could use 11 U.S.C.A. § 501(c) (West 1979), to force him into the proceedings, and then invoke the avoidance mechanism of § 506(d). Equibank and the SBA counter that § 506(a) does not apply where the debtor has no equity in the property. The first sentence of § 506(a) states that [a]n allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor's interest ... is less than the amount of such allowed claim. 11 U.S.C.A. § 506(a) (emphasis supplied). Relying on the highlighted language, they argue that since the Gaglias have no equity in the property and the property will not be administered, the estate has no interest in it. Hence, they assert that the Gaglias should not be able to use § 506 to their advantage here. If § 506(a) is so interpreted, it would seem to conflict with the plain meaning of § 506(d). Moreover, when a debtor files a Chapter 7 petition, all of his right and title to property, legal as well as equitable, passes to the estate. 11 U.S.C.A. § 541 (West 1979 & Supp.1989). This includes the legal title to property secured by a mortgage. See id. § 541(d); In re Simonson, 758 F.2d 103, 108 (3d Cir.1985) (Becker, J., dissenting) (unencumbered portion of the value of property passes to estate, as well as legal title; where property overen-cumbered by mortgages, only legal title passes to estate); 4 Collier on Bankruptcy ¶ 541.01, at 541-5 to -6 (L. King 15th ed. 1989) (property of estate is very broad concept that includes title to property and equitable interest without legal title). Thus, even though the Gaglias had no" } ]

[ { "docid": "22332336", "title": "", "text": "the Bankruptcy Court’s determination. It said that it was “convinced” that BankCh-ampaign was “abusing its position of trust by failing to liquidate the assets,” but it nonetheless affirmed the Bankruptcy Court’s decision. Id., at 27a-28a. In turn, the Court of Appeals affirmed the District Court. It wrote that “defalcation requires a known breach of a fiduciary duty, such that the conduct can be characterized as objectively reckless.” 670 F.3d, at 1166. And it found that petitioner’s conduct satisfied this standard. Ibid. Petitioner sought certiorari. In effect he has asked us to decide whether the bankruptcy term “defalcation” applies “in the absence of any specific finding of ill intent or evidence of an ultimate loss of trust principal.” Brief for United States as Amicus Curiae 1. See also Pet. for Cert. i. The lower courts have long disagreed about whether “defalcation” includes a scienter requirement and, if so, what kind of scienter it requires. Compare In re Sherman, 658 F.3d 1009, 1017 (C.A.9 2011) (“defalcation” includes “even innocent acts of failure to fully account for money received in trust” (internal quotation marks and brackets omitted)), with In re Uwimana, 274 F.3d 806, 811 (C.A.4 2001) (defalcation occurs when “negligence or even an innocent mistake ... results in misappropriation”), with 670 F.3d, at 1166 (“defalcation requires ... conduct [that] can be characterized as objectively reckless”), and with In re Baylis, 313 F.3d 9, 20 (C.A.1 2002) (“defalcation requires something close to a showing of extreme recklessness”). In light of that disagreement, we granted the petition. II A Congress first included the term “defalcation” as an exception to discharge in a federal bankruptcy statute in 1867. See id., at 17. And legal authorities have disagreed about its meaning almost ever since. Dictionary definitions of “defalcation” are not particularly helpful. On the one hand, a law dictionary in use in 1867 defines the word “defalcation” as “the act of a defaulter,” which, in turn, it defines broadly as one “who is deficient in his accounts, or fails in making his accounts correct.” 1 J. Bouvier, Law Dictionary 387, 388 (4th ed. 1852). See also" } ]

[ { "docid": "20990550", "title": "", "text": "any amendment to the Amended Complaint under § 523(a)(2)(A) would be futile. iii. Section 523(a)(4) I will now discuss § 523(a)(4). Section 523(a)(4) provides that a debt is nondischargeable when it is for: (1) fraud or defalcation while acting in a fiduciary capacity; (2) embezzlement while acting in any capacity; or, (3) larceny while acting in any capacity. See, 11 U.S.C. § 523(a)(4); Bullock v. BankChampaign, N.A, — U.S.-, 133 S.Ct. 1754, 1759-60, 185 L.Ed.2d 922 (2013); In re Bocchino, 794 F.3d 376, 382 (3d Cir.2015); In re Aiello, 533 B.R. 489, 500 (Bankr.W.D.Pa.2015); In re Pearl, 502 B.R. 429, 440 (Bankr.E.D.Pa.2013). Nondischargeability based on fraud or defalcation requires proof that the debtor was acting in a fiduciary capacity. On the other hand, nondischargeability based on embezzlement or larceny does not. See, In re Tyson, 450 B.R. 514, 522 (Bankr.E.D.Pa.2011); In re Hatch, 2009 WL 3208694, at *5 (Bankr. E.D.Pa. Sept. 30, 2009). The burden is on the creditor to prove the elements of the claim by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991). Symonies’ claim under § 523(a)(4) requests that I conclude that the debt be found nondischargeable because it was obtained by fraud or defalcation while acting in a fiduciary capacity with S & S. The first part of § 523(a)(4) is the “fiduciary prong.” In re Tyson, 450 B.R. at 522; In re Roemmele, 2011 WL 4804833, at *4-5. I will only analyze the fiduciary prong of § 523(a)(4) because that is the only allegation under § 523(a)(4) that Symonies made within the Amended Complaint. Amended Complaint, ¶ 26-29. To prevail under the fiduciary prong of § 523(a)(4) Symonies must prove that: (1) Sobol was acting in a fiduciary capacity; and (2) while acting in that capacity, Sobol committed fraud or defalcation. In re. Tyson, 450 B.R. at 522; In re Roemmele, 2011 WL 4804833, at *4-5. Courts generally interpret “fiduciary” to mean a person in a relationship of trust or confidence that arises from an express or technical trust on behalf of the" }, { "docid": "3508029", "title": "", "text": "of subcontractors and materialmen. Instead of paying these claims, the indemnitor paid himself as repayment of loans and advances, issued checks to “cash” and to employees, and transferred funds to another corporation owned by the indemnitor. After finding that the indemnity agreement created an enforceable “trust” in the contract funds, the Matter of Jenkins court specifically held that the indemnitors’ wrongful conduct constituted a “defalcation” under 11 U.S.C. § 523(a)(4). Id., at 77; see also, In re Fox, 357 B.R. at 779 (holding that defalcation occurs when the trust funds are “used on any purpose for which it is not intended,” thereby payments for equipment costs, employee burden, job support costs, and general and administrative expenses constituted a defalcation of trust funds); In re Wright, 266 B.R. at 851 (applying trust funds to payments other than for labor and materials constituted a defalcation). As in Jenkins, Fox, and Wright, the Court here finds that the Indemnitors committed a defalcation of the Trust Funds by making payments other than for labor and materials incorporated into the Bonded Project. Moreover, the United States Supreme Court decision in Bullock v. BankChampaign, N.A., — U.S. -, 133 S.Ct. 1754, 185 L.Ed.2d 922, 81 USLW 4292 (May 13, 2013), recently adopted the following standard for “defalcation” under 11 U.S.C. § 523(a)(4): Thus, where the conduct at issue does not involve bad faith, moral turpitude, or other immoral conduct, the term requires an intentional wrong. We include as intentional not only conduct that the fiduciary knows is improper but also reckless conduct of the kind sent forth in the Model Penal Code. Where actual knowledge of wrongdoing is lacking, we consider conduct as equivalent if the fiduciary “consciously disregards” (or is willfully blind to) “a substantial and unjustifiable risk” that his conduct will turn out to violate a fiduciary duty. ALI, Model Penal Code § 2.02(2)(c), p. 226 (1985). See Id., § 2.02 Comment 9, at 248 (explaining that the Model Penal Code’s definition of “knowledge” was designed to include “wilful blindness”). That risk “must be of such a nature and degree that, considering the nature" }, { "docid": "6924237", "title": "", "text": "and Tenth Circuits. The Supreme Court accepted the case to resolve the circuit split. The question before the Supreme Court was, “Does § 523(a)(6)’s compass cover acts, done intentionally, that cause injury ..., or only acts done with the actual intent to cause injury?” Id. at 61, 118 S.Ct. 974. The Supreme Court concluded that establishing § 523(a)(6) nondischarge-ability “takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.... [T]he (a)(6) formulation triggers in the lawyer’s mind the category ‘intentional torts,’ as distinguished from negligent or reckless torts.” Id. (emphasis in original). Interpreting § 523(a)(6) more broadly would contravene the guiding principle that exceptions to discharge “should be confined to those plainly expressed.” Id. at 62, quoting Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 59 L.Ed. 717 (1915). Last year, in Bullock v. BankChampaign, N.A., — U.S.-, 133 S.Ct. 1754, 185 L.Ed.2d 922 (2013), the Supreme Court considered the exception to discharge in § 523(a)(4) “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” Specifically, the question was whether excepting a debt for fiduciary defalcation from discharge required a showing of the debtor’s subjective bad or extremely reckless state of mind, or would a more objective showing suffice, a question on which a number of circuits, including the Ninth Circuit, had split. Based on its analysis of the statutory language, citing Neal, and reiterating its commitment to interpreting the exceptions to discharge narrowly, the Supreme Court held that excepting a claim for fiduciary defalcation from a debtor’s discharge required that the creditor claimant establish the debtor’s “culpable state of mind.” Id. at 1757, 1759-60. “We describe that state of mind as one involving knowledge of, or gross recklessness in respect to, the improper nature of the relevant fiduciary behavior.” Id. at 1757. The Geiger and Bullock decisions appear to cut strongly against applying imputed fraud under § 523(a)(2)(A) to except a debt from discharge in the absence of some showing of culpability on the part of the debtor. 4. Ninth Circuit Analysis While the Ninth Circuit" }, { "docid": "19819295", "title": "", "text": "no longer do so; he took his chances. We do not hold that no possible deficiency in a fiduciary’s accounts is discharge-able; ... [we have said] that the misappropriation must be due to a known breach of the duty, and not to mere negligence or mistake. Although [misappropriation] probably carries a larger implication of misconduct than defalcation, defalcation may demand some portion of misconduct; we will assume arguendo that it does. All we decide is that when a fiduciary takes money upon a conditional authority which may be revoked and knows at the time that it may, he is guilty of a defalcation though it may not be a fraud, or an embezzlement, or perhaps not even a misappropriation. Id. at 511, 512 (citation and internal quotation marks). In Quaif, this Court interpreted Central Hanover as standing for the proposition that a defalcation under § 523(a)(4) does not have to rise to the level of fraud, embezzlement, or misappropriation. See Quaif, 4 F.3d at 955. Additionally, this Court in Quaif noted that some courts interpret defalcation “more broadly, stating that even a purely innocent party can be deemed to have committed a defalcation for purposes of § 523(a)(4).” Id. (citations omitted). This Court recognizes that there is a split among the circuits regarding the meaning of defalcation under § 523(a)(4). The Fourth, Eighth, and Ninth Circuits have concluded that even an innocent act by a fiduciary can be a defalcation. See In re Uwimana, 274 F.3d 806, 811 (4th Cir.2001) (stating that “even an innocent mistake which results in misappropriation or failure to account” can be a defalcation); In re Cochrane, 124 F.3d 978, 984 (8th Cir.1997) (concluding that defalcation does not require intentional wrongdoing; stating that it includes a fiduciary’s innocent failure to fully account for money received); In re Sherman, 658 F.3d 1009, 1017 (9th Cir.2011) (noting that intent to defraud is not required; stating that defalcation includes a fiduciary’s innocent failure to fully account for money received). The Fifth, Sixth, and Seventh Circuits require a showing of recklessness by the fiduciary. See In re Harwood, 637 F.3d" }, { "docid": "15834655", "title": "", "text": "Inc., alone) because Shamrock obtained a default state court judgment against him and Patel listed the debt in his Chapter 7 bankruptcy. The corporate law hurdle might have been relevant then, but all we are concerned with now is whether the debt is dischargeable under the bankruptcy code. That inquiry follows the statute: was there a fiduciary duty and a breach (defalcation)? As explained above, the fiduciary duty question turns on whether federal law recognizes a preexisting trust relationship created under state law — which itself turns on whether Patel was a “contractor” — and so the bankruptcy court’s corporate law inquiry was irrelevant. Again, Patel, individually, was a fiduciary. See Johnson, 691 F.2d at 251. B. This does not end the case, however, because there remains the question whether Patel breached his duty via defalcation of money owed to Shamrock. This Court has defined defalcation “to encompass embezzlement and misappropriation by a fiduciary, as well as the failure to properly account for such funds.” In re Blaszak, 397 F.3d at 390. Shamrock latches on to this latter phrase to claim that the debt is non-dischargeable as “defalcation per se.” Yet no such doctrine exists — this Circuit has never countenanced “innocent” or merely “negligent” defalcation. The most influential early definition of defalcation came from Judge Learned Hand’s “carefully equivocal opinion” in Central Hanover Bank & Trust Co. v. Herbst, where he stated that because “defalcation” ought not to be redundant with “fraud” and “embezzlement” (also prohibited by the statute), subjective, deliberate wrongdoing was not an element required to establish defalcation. 93 F.2d 510, 512 (2d Cir.1937). Yet Judge Hand went on to point out that the party in Herbst “had not been entirely innocent,” id., thus implying that purely innocent mistakes were not sufficient, and in any event expressly reserving that question. Id. Contra Herbst, however, some circuits have held that “defalcation” might include “innocent” or merely negligent conduct. See Republic of Rwanda v. Uwimana (In re Uwimana), 274 F.3d 806, 811 (4th Cir.2001); Lewis v. Scott (In re Lewis), 97 F.3d 1182, 1186 (9th Cir.1996). But not so" }, { "docid": "19819296", "title": "", "text": "defalcation “more broadly, stating that even a purely innocent party can be deemed to have committed a defalcation for purposes of § 523(a)(4).” Id. (citations omitted). This Court recognizes that there is a split among the circuits regarding the meaning of defalcation under § 523(a)(4). The Fourth, Eighth, and Ninth Circuits have concluded that even an innocent act by a fiduciary can be a defalcation. See In re Uwimana, 274 F.3d 806, 811 (4th Cir.2001) (stating that “even an innocent mistake which results in misappropriation or failure to account” can be a defalcation); In re Cochrane, 124 F.3d 978, 984 (8th Cir.1997) (concluding that defalcation does not require intentional wrongdoing; stating that it includes a fiduciary’s innocent failure to fully account for money received); In re Sherman, 658 F.3d 1009, 1017 (9th Cir.2011) (noting that intent to defraud is not required; stating that defalcation includes a fiduciary’s innocent failure to fully account for money received). The Fifth, Sixth, and Seventh Circuits require a showing of recklessness by the fiduciary. See In re Harwood, 637 F.3d 615, 624 (5th Cir.2011) (stating that defalcation is a willful neglect of a duty, which does not require actual intent; it is essentially a recklessness standard); In re Patel, 565 F.3d 963, 970 (6th Cir.2009) (stating that a defalcation requires a showing of more than negligence; instead, the fiduciary “must have been objectively reckless in failing to properly account for or allocate funds”); In re Berman, 629 F.3d 761, 766 n. 3 (7th Cir.2011) (stating that “defalcation requires something more than negligence or mistake, but less than fraud”). The First and Second Circuits require a showing of extreme recklessness. See In re Baylis, 313 F.3d 9, 20 (1st Cir.2002) (stating that “defalcation requires something close to a showing of extreme recklessness”); In re Hyman, 502 F.3d 61, 68 (2d Cir.2007) (stating that defalcation “requires a showing of conscious misbehavior or extreme recklessness”). The Third Circuit has not addressed the issue, and the Tenth Circuit has made the brief statement in an unpublished opinion that defalcation requires some portion of misconduct. See In re Millikan, 188" }, { "docid": "10306384", "title": "", "text": "the relevant fiduciary behavior. There a debtor who served as a nonprofessional trustee of a trust established for the benefit of the debtor and his siblings borrowed money from the trust on several occasions. The trust was repaid. His siblings obtained a state court judgment for breach of fiduciary duty, though that court found that there was no apparent malicious motive on the debtor’s part. The debtor filed for bankruptcy relief. BankChampaign opposed the debtor’s efforts to obtain a discharge of his state-court-imposed debt to the trust. Bullock, at 1757. The bankruptcy court held that because the debt was based on a breach of fiduciary duty, it was non-dischargeable under section 523(a)(4). The District and Circuit Courts affirmed. The Supreme Court held that the term defalcation in the Bankruptcy Code includes a culpable state of mind require ment involving knowledge of, or gross recklessness in respect to the improper nature of the fiduciary behavior. Id. at 1759. Recognizing the differing views of the requisite mental state, the Supreme Court noted that “In resolving these differences, we note that this longstanding disagreement concerns state of mind, not whether ‘defalcation’ can cover a trustee’s failure (as here) to make a trust more than whole.” Id. The Supreme Court explained that: where the conduct at issue does not involve bad faith, moral turpitude, or other immoral conduct, the term requires an intentional wrong. We include as intentional not only conduct that the fiduciary knows is improper but also reckless conduct of the kind that the criminal law often treats as the equivalent. Thus, we include reckless conduct of the kind set forth in the Model Penal Code. Where actual knowledge of wrongdoing is lacking, we consider conduct as equivalent if the fiduciary ‘consciously disregards’ (or is willfully blind to) ‘a substantial and unjustifiable risk’ that his conduct will turn out to violate a fiduciary duty. Id. The Court further noted. [t]hat risk ‘must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from" }, { "docid": "4544622", "title": "", "text": "relationships of reliance rise to the degree of trust required for a finding of defalcation. The Heilman Court explained, “If the applicable non-bankruptcy law does not clearly and expressly impose trust-like obligations on a party, the court will not assume that such duties exist and will not find that there was a fiduciary relationship.” Heilman, 241 B.R. at 169 (Bankr.D.Md.1999) (cited in Lottery Comm’n v. Wells (In re Wells), 431 B.R. 379, 382 (Bankr.E.D.N.C.2009)). Once the requisite relationship is established, the United States Court of Appeals for the Fourth Circuit has found that no intentional wrongful conduct must be proven by a plaintiff. Rather, “negligence or even an innocent mistake which results in misappropriation or failure to account is sufficient.” Republic of Rwanda v. Uwimana (In re Uwimana), 274 F.3d 806, 811 (4th Cir.2001). See also Counsell v. Colfack (In re Colfack), 393 B.R. 222, 230 (Bankr.D.Neb.2008) (The Eighth Circuit has held that a court can find a “defalcation” under § 523(a)(4) without evidence of bad faith, intentional fraud, or other intentional wrongdoing); Lewis v. Scott (In re Lewis), 97 F.3d 1182, 1187 (9th Cir.1996) (An individual may be liable for defalcation without having the intent to defraud.). Contra Rutanen v. Baylis (In re Baylis), 313 F.3d 9, 18-19, 22 (1st Cir.Mass.2002) (“For an act to fall under the “defalcation” exception to discharge, it must be a serious one indeed, and some fault must be involved.”); Spinoso v. Heilman (In re Heilman), 241 B.R. 137, 170 n. 31 (Bankr.D.Md.1999) (“Mere negligence on the part of a trustee of an express trust in the absence of intentional wrongdoing ... does not constitute defalcation within the meaning of 11 U.S.C.S. § 523(a)(4).”) If the asserted fiduciary relationship is one of a trustee, then plaintiff must also prove the existence of an express trust. In re Holmes, 117 B.R. 848, 852 (Bankr.D.Md.1990); In re Piercy, 140 B.R. 108, 114 (Bankr.D.Md.1992). An express or technical trust is a formal fiduciary relationship whose creation is based upon the intentions of a settlor and/or a beneficiary. Holmes, 117 B.R. at 852. When evaluating the alleged existence" }, { "docid": "21422054", "title": "", "text": "(9th Cir.1985). Because bankruptcy courts are courts of equity, Young v. United States, 535 U.S. 43, 50, 122 S.Ct. 1036, 152 L.Ed.2d 79 (2002), a plaintiff deemed to have unclean hands cannot obtain a judgment of nondischarge-ability. See Republic of Rwanda v. Uwimana (In re Uwimana), 274 F.3d 806, 810 (4th Cir.2001) (“A plaintiff with unclean hands is not entitled to relief from a court of equity in the form of an order denying the dischargeability of debt.” (internal quotation marks omitted)), abrogated on other grounds by Bullock v. BankChampaign, N.A., —U.S.-, 133 S.Ct. 1754, 1758-59, 185 L.Ed.2d 922 (2013). The Supreme Court has emphasized, however, that the doctrine of unclean hands “does not mean that courts must always permit a defendant wrongdoer to retain the profits of his wrongdoing merely because the plaintiff himself is possibly guilty of transgressing the law.” Yellow Cab, 321 U.S. at 387, 64 S.Ct. 622. Rather, determining whether the doctrine of unclean hands precludes relief requires balancing the alleged wrongdoing of the plaintiff against that of the defendant, and “weighting] the substance of the right asserted by [the] plaintiff against the transgression which, it is contended, serves to foreclose that right.” Republic Molding Corp. v. B.W. Photo Utils., 319 F.2d 347, 350 (9th Cir.1963). In addition, “the clean hands doctrine should not be strictly enforced when to do so would frustrate a substantial public interest.” EEOC v. Recruit U.S.A., Inc., 939 F.2d 746, 753 (9th Cir.1991). The bankruptcy court failed to conduct the required balancing, instead concluding solely from the fact that North-bay had engaged in wrongful activity that the doctrine of unclean hands applied. In so doing, the bankruptcy court made an error of law, and thus abused its discretion. Had the bankruptcy court weighed the parties’ respective wrongdoing, it necessarily would have concluded that Beyries’s wrongdoing outweighed Northbay’s, both as to harm caused to each other and as to harm caused to the public. Beyries was on Northbay’s board of directors and partnered in Northbay’s business, so he was as responsible as Northbay for its illegal marijuana sales. That illegal activity must" }, { "docid": "3508030", "title": "", "text": "Bonded Project. Moreover, the United States Supreme Court decision in Bullock v. BankChampaign, N.A., — U.S. -, 133 S.Ct. 1754, 185 L.Ed.2d 922, 81 USLW 4292 (May 13, 2013), recently adopted the following standard for “defalcation” under 11 U.S.C. § 523(a)(4): Thus, where the conduct at issue does not involve bad faith, moral turpitude, or other immoral conduct, the term requires an intentional wrong. We include as intentional not only conduct that the fiduciary knows is improper but also reckless conduct of the kind sent forth in the Model Penal Code. Where actual knowledge of wrongdoing is lacking, we consider conduct as equivalent if the fiduciary “consciously disregards” (or is willfully blind to) “a substantial and unjustifiable risk” that his conduct will turn out to violate a fiduciary duty. ALI, Model Penal Code § 2.02(2)(c), p. 226 (1985). See Id., § 2.02 Comment 9, at 248 (explaining that the Model Penal Code’s definition of “knowledge” was designed to include “wilful blindness”). That risk “must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.” Id. § 2.02(2)(c), at 226 (emphasis added). Cf. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 194, n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976) (defining scienter for securities law purposes as “a mental state embracing intent to deceive, manipulate, or defraud”). Applying this standard to the facts of this case, the Court finds that the Indemnitors acted “intentionally” with knowledge that their actions were improper in carrying out their fiduciary duties in handling the Trust Funds for the benefit of the Surety. The Court further finds that the Indemnitors acted “recklessly”, with a “conscious disregard” or being “willfully blind” to a substantial and unjustifiable risk that their conduct would -violate the fiduciary duties in the handling of the Trust Funds, thereby constituting defalcation. This finding satisfies the definition of “defalcation” under 11 U.S.C. § 523(a)(4) as addressed in Bullock. The" }, { "docid": "11077692", "title": "", "text": "the defalcation standard would be met, even if the debtor was, at the time, unaware of the fiduciary duties imposed by the Construction Trust Fund Statute. Id. In Bullock, the Supreme Court resolved a split among the circuits as to the meaning of defalcation by holding that it requires proof of an “intentional wrong.” Bullock v. BankChampaign, N.A., — U.S. -, 133 S.Ct. 1754, 1759, 185 L.Ed.2d 922 (2013). An intentional wrong includes not only conduct that the fiduciary knows is improper, but also reckless conduct. Id. Thus, liability can be imposed where the fiduciary ‘“consciously disregards’ (or is willfully blind to) ‘a substantial and unjustifiable risk’ that his conduct will turn out to violate a fiduciary duty.” Id. (quoting Model Penal Code § 2.02(2)(c)). The risk “must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.” Id. (quoting Model Penal Code § 2.02(2)(e)). The Bullock standard for defalcation relies heavily on the criminal law definition for recklessness found in the Model Penal Code. Bullock, 138 S.Ct. at 1759 (“Thus, we include reckless conduct of the kind set forth in the Model Penal Code.”). This contrasts with the tort definitions the Supreme Court has applied to define terms in other subsections of § 523. See Field v. Mans, 516 U.S. 59, 69, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995) (relying on the Restatement (Second) of Torts to define the term “actual fraud” found in § 523(a)(2)). In the case of recklessness, this distinction is important because the criminal and civil definitions of that term differ. The test for criminal recklessness is subjective, while the tort definition is objective. Farmer v. Brennan, 511 U.S. 825, 836-37, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Under the civil definition, it is enough to show that the actor should have known of risk of harm his actions created. Id. For example, the Restatement (Second) of Torts’ definition applies a" }, { "docid": "19466605", "title": "", "text": "dischargeable. The Federal District Court reviewed the Bankruptcy Court's determination. It said that it was \"convinced\" that BankChampaign was \"abusing its position of trust by failing to liquidate the assets,\" but it nonetheless affirmed the Bankruptcy Court's decision. Id ., at 27a-28a. In turn, the Court of Appeals affirmed the District Court. It wrote that \"defalcation requires a known breach of a fiduciary duty, such that the conduct can be characterized as objectively reckless.\" 670 F.3d, at 1166. And it found that petitioner's conduct satisfied this standard. Ibid. Petitioner sought certiorari. In effect he has asked us to decide whether the bankruptcy term \"defalcation\" applies \"in the absence of any specific finding of ill intent or evidence of an ultimate loss of trust principal.\" Brief for United States as Amicus Curiae 1. See also Pet. for Cert. i. The lower courts have long disagreed about whether \"defalcation\" includes a scienter requirement and, if so, what kind of scienter it requires. Compare In re Sherman, 658 F.3d 1009, 1017 (C.A.9 2011) (\"defalcation\" includes \"even innocent acts of failure to fully account for money received in trust\" (internal quotation marks and brackets omitted)), with In re Uwimana, 274 F.3d 806, 811 (C.A.4 2001) (defalcation occurs when \"negligence or even an innocent mistake ... results in misappropriation\"), with 670 F.3d, at 1166 (\"defalcation requires ... conduct [that] can be characterized as objectively reckless\"), and with In re Baylis, 313 F.3d 9, 20 (C.A.1 2002) (\"defalcation requires something close to a showing of extreme recklessness\"). In light of that disagreement, we granted the petition. II A Congress first included the term \"defalcation\" as an exception to discharge in a federal bankruptcy statute in 1867. See id ., at 17. And legal authorities have disagreed about its meaning almost ever since. Dictionary definitions of \"defalcation\" are not particularly helpful. On the one hand, a law dictionary in use in 1867 defines the word \"defalcation\" as \"the act of a defaulter,\" which, in turn, it defines broadly as one \"who is deficient in his accounts, or fails in making his accounts correct.\" 1 J. Bouvier, Law" }, { "docid": "4544621", "title": "", "text": "These elements must be proven by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755, 767 (1990). (1) the establishment of an express trust regarding the funds; (2) that the debtor acted in a fiduciary capacity; and (3) the debt is based upon the debtor’s fraud or defalcation while acting as a fiduciary. In order to prevail on a claim arising under § 523(a)(4) asserting defalcation, a defendant and plaintiff must have had a fiduciary relationship that is traditionally recognized by courts. In Heil-man, this Court explained, “The types of fiduciary capacity intended by Congress to render a debt non-dischargeable are persons in positions of ultimate trust, such as public officers, executors, administrators, guardians, trustees of express trusts, attorneys and corporate directors.” Spinoso v. Heilman (In re Heilman), 241 B.R. at 169 (Bankr.D.Md.1999). Accord Ohio Co. v. Maynard (In re Maynard), 153 B.R. 933, 935 (Bankr.M.D.Fla.1993) (The term fiduciary is generally narrowly construed, and this is especially so in the bankruptcy context). However, not all relationships of reliance rise to the degree of trust required for a finding of defalcation. The Heilman Court explained, “If the applicable non-bankruptcy law does not clearly and expressly impose trust-like obligations on a party, the court will not assume that such duties exist and will not find that there was a fiduciary relationship.” Heilman, 241 B.R. at 169 (Bankr.D.Md.1999) (cited in Lottery Comm’n v. Wells (In re Wells), 431 B.R. 379, 382 (Bankr.E.D.N.C.2009)). Once the requisite relationship is established, the United States Court of Appeals for the Fourth Circuit has found that no intentional wrongful conduct must be proven by a plaintiff. Rather, “negligence or even an innocent mistake which results in misappropriation or failure to account is sufficient.” Republic of Rwanda v. Uwimana (In re Uwimana), 274 F.3d 806, 811 (4th Cir.2001). See also Counsell v. Colfack (In re Colfack), 393 B.R. 222, 230 (Bankr.D.Neb.2008) (The Eighth Circuit has held that a court can find a “defalcation” under § 523(a)(4) without evidence of bad faith, intentional fraud, or other intentional wrongdoing); Lewis v." }, { "docid": "15943925", "title": "", "text": "Cantrell (In re Cantrell), 329 F.3d 1119, 1125 (9th Cir.2003), citing Lee-Benner v. Gergely (In re Gergely), 110 F.3d 1448, 1450 (9th Cir.1997). “[T]he fiduciary relationship must be one arising from an express or technical trust that was imposed before and without reference to the wrongdoing that caused the debt.” Lewis v. Scott (In re Lewis), 97 F.3d 1182, 1185 (9th Cir.1996), citing Ragsdale, 780 F.2d at 796; Davis v. Aetna Accept. Co., 293 U.S. 328, 333, 55 S.Ct. 151, 79 L.Ed. 393 (1934). We consult state law to determine whether the requisite trust relationship exists. In re Cantrell, 329 F.3d at 1125, citing In re Lewis, 97 F.3d at 1185, and Ragsdale, 780 F.2d at 796. 3. The Intent Standard in Light of the Supreme Court’s Bullock Decision Before we address the issues as to whether the marital relationship under Washington law satisfies the “express” or “technical” trust and fiduciary elements of a § 523(a)(4) exception to discharge claim, we note a change in the law that occurred after the bankruptcy court issued its Memorandum Decision with important implications in this appeal. In May 2013, the Supreme Court decided Bullock v. BankChampaign, N.A., - U.S. -, 133 S.Ct. 1754, 185 L.Ed.2d 922 (2013). The Bullock decision effectively overruled the line of Ninth Circuit authority culminating in In re Lewis, 97 F.3d at 1186-87, .holding that a debtor who failed to account to a creditor to whom he or she owed a fiduciary duty need not have a particular state of mind or bad intent to be subject to an exception to discharge for a “defalcation” under § 523(a)(4). The Supreme Court held that the term “defalcation:” includes a culpable state of mind requirement akin to that which accompanies application of the other terms in the same statutory phrase. We describe that state of mind as one involving knowledge of, or gross recklessness in respect to, the improper nature of the relevant fiduciary behavior. Bullock, 133 S.Ct. at 1757. In the State Court case, after describing some of John’s personal purchases during the year period in which he dissipated the" }, { "docid": "20991103", "title": "", "text": "a debtor cannot discharge a debt incurred through “fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” 11 U.S.C § 524(a)(4). A debt is nondis-chargeable based on defalcation if the creditor proves three elements: (1) the debtor stood in a fiduciary relationship with the creditor; (2) the fiduciary relationship existed prior to the creation of the debt; and (3) the debt resulted from an act of defalcation. Quaif v. Johnson, 4 F.3d 950, 953-55 (11th Cir.1993). The creditor seeking to except the debt on grounds of § 523(a)(4) bears the burden of proving “the existence of an express or technical trust and not merely the existence and breach of a fiduciary duty.” In re Lucas, 477 B.R. 236, 242 (Bankr.M.D.Ala.2012). Once a fiduciary relationship in the context of a trust is established, the creditor must show a defalcation by the debtor. The Supreme Court has recently examined § 523(a)(4) to discern the meaning of defalcation, finding it to require an intentional wrong, or when “actual knowledge of wrongdoing is lacking, — if the fiduciary consciously disregards (or is willfully blind to) a substantial and unjustifiable risk that his conduct will turn out to violate a fiduciary duty.” Bullock v. BankChampaign, N.A., — U.S.-, 133 S.Ct. 1754, 1759, 185 L.Ed.2d 922 (2013). Chase seeks to establish a fiduciary relationship with Nelms with which to base nondischargeability upon the fact that Allegro had its customers authorize limited powers of attorney. There are two problems with Chase’s approach. First, the power of attorney does not create the fiduciary duty necessary to give rise to an action under § 523(a)(4). “ ‘As a rule, the general fiduciary duty created by a power of attorney gives rise to an agency relationship, but does not give rise to the fiduciary capacity required by section 523(a)(4).’ ” In re Scott, 481 B.R. 119, 190 (Bankr.N.D.Ala.2012) (quoting Pioneer Bank & Trust v. Cameron (In re Cameron), 2008 WL 5169513 (Bankr.D.S.D. Oct. 17, 2008)). Further, even if it could be shown that some elevated level of fiduciary duty existed giving rise to a nondischargeability action, that" }, { "docid": "10306383", "title": "", "text": "the circumstances and the client gives informed consent. Illinois Rule of Professional Conduct 1.2(c). Jahrling was not authorized to provide limited scope representation in 2003. Because the difference in the provision of limited scope representation as opposed to limiting objectives is vague and difficult to delineate, the Court will not base its ruling herein on whether Jahrling could have legitimately limited what he could do for Cora at the real estate closing in issue. 3. Culpability This Court’s findings that Jahrling violated Illinois Rules of Professional Conduct 1.1, 1.3 and 1.4 along with Judge Mason’s finding that he was negligent in representing Cora may not be enough, however, to support a denial of discharge of a particular debt for defalcation of a fiduciary duty. In Bullock v. BankChampaign, N.A., — U.S. -, 133 S.Ct. 1754, 185 L.Ed.2d 922 (2013), the Supreme Court held that the term “defalcation” as used in section 523(a)(4) of the Code includes a culpable state of mind requirement involving knowledge of, or gross recklessness in respect to the improper nature of the relevant fiduciary behavior. There a debtor who served as a nonprofessional trustee of a trust established for the benefit of the debtor and his siblings borrowed money from the trust on several occasions. The trust was repaid. His siblings obtained a state court judgment for breach of fiduciary duty, though that court found that there was no apparent malicious motive on the debtor’s part. The debtor filed for bankruptcy relief. BankChampaign opposed the debtor’s efforts to obtain a discharge of his state-court-imposed debt to the trust. Bullock, at 1757. The bankruptcy court held that because the debt was based on a breach of fiduciary duty, it was non-dischargeable under section 523(a)(4). The District and Circuit Courts affirmed. The Supreme Court held that the term defalcation in the Bankruptcy Code includes a culpable state of mind require ment involving knowledge of, or gross recklessness in respect to the improper nature of the fiduciary behavior. Id. at 1759. Recognizing the differing views of the requisite mental state, the Supreme Court noted that “In resolving these differences," }, { "docid": "15943926", "title": "", "text": "Memorandum Decision with important implications in this appeal. In May 2013, the Supreme Court decided Bullock v. BankChampaign, N.A., - U.S. -, 133 S.Ct. 1754, 185 L.Ed.2d 922 (2013). The Bullock decision effectively overruled the line of Ninth Circuit authority culminating in In re Lewis, 97 F.3d at 1186-87, .holding that a debtor who failed to account to a creditor to whom he or she owed a fiduciary duty need not have a particular state of mind or bad intent to be subject to an exception to discharge for a “defalcation” under § 523(a)(4). The Supreme Court held that the term “defalcation:” includes a culpable state of mind requirement akin to that which accompanies application of the other terms in the same statutory phrase. We describe that state of mind as one involving knowledge of, or gross recklessness in respect to, the improper nature of the relevant fiduciary behavior. Bullock, 133 S.Ct. at 1757. In the State Court case, after describing some of John’s personal purchases during the year period in which he dissipated the 401 (k) funds, which included a 2008 Nissan SUV, a new I-phone, and comic books and related expenses, the State Court found that John did not spend the 401(k) funds to support the marital community or to pay child support. The State Court’s Oral Findings and written Opinion express implicit disapproval of John’s actions in spending the 401 (k) funds for his personal use. However, the State Court did not make any specific findings as to John’s mental state in dissipating the 401(k) funds. In the Memorandum Decision, the bankruptcy court concluded, consistent with the State Court determinations, that John had inappropriately withdrawn the 401(k) funds from the community and spent them. The bankruptcy court further concluded that John’s “bad acts” were the “most significant component” in the State Court’s decision to impose the Property Settlement Judgment. The bankruptcy court’s ultimate conclusion was that John had committed a defalcation for purposes of § 523(a)(4) that supported the decision to except a portion of the Property Settlement Judgment from his chapter 13 discharge. However, it expressly" }, { "docid": "11077691", "title": "", "text": "whether intentional, willful, reckless, or negligent. Furthermore, the fiduciary-debtor was charged with knowledge of the law and its duties.” Antlers Roof-Truss & Builders Supply v. Storie (In re Storie), 216 B.R. 283, 288 (10th Cir. BAP 1997). Under this definition, the creditor needed to only establish a failure to account for trust funds (the actus reus), without establishing any certain mental state (the mens rea). A creditor could meet its burden on a § 523(a)(4) claim in this district by showing it had unpaid invoices on construction projects on which the debtor had received trust fund disbursements meant for subcontractors, material suppliers, or laborers. See ASCI Readi-Mix & Asphalt Specialties, Co., Inc. v. Gamboa (In re Gamboa), 400 B.R. 784, 790 (Bankr. D.Colo.2008). The burden then shifted to the debtor to render an accounting to show that all contract disbursements on a particular project were used first to pay all subcontractors, material suppliers and laborers on that project, and not put to some other use. Id. If the debtor failed to meet this burden, then the defalcation standard would be met, even if the debtor was, at the time, unaware of the fiduciary duties imposed by the Construction Trust Fund Statute. Id. In Bullock, the Supreme Court resolved a split among the circuits as to the meaning of defalcation by holding that it requires proof of an “intentional wrong.” Bullock v. BankChampaign, N.A., — U.S. -, 133 S.Ct. 1754, 1759, 185 L.Ed.2d 922 (2013). An intentional wrong includes not only conduct that the fiduciary knows is improper, but also reckless conduct. Id. Thus, liability can be imposed where the fiduciary ‘“consciously disregards’ (or is willfully blind to) ‘a substantial and unjustifiable risk’ that his conduct will turn out to violate a fiduciary duty.” Id. (quoting Model Penal Code § 2.02(2)(c)). The risk “must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.” Id. (quoting Model" }, { "docid": "11077719", "title": "", "text": "fees and costs is permitted under the Colorado criminal theft statute. See Colo. Rev.Stat. § 18-4-405 (allowing the victim of theft to recover “recover costs of the action and reasonable attorney fees”). B. Larceny and Embezzlement Section 523(a)(4) also makes debts for larceny and embezzlement nondischargeable. MacArthur’s complaint in this proceeding did not specifically allege either larceny or embezzlement. However, the Court asked that parties to address the potential applicability of these claims in their written closing arguments. Because the Court has found only a portion of MacArthur’s debt to be nondischargeable under the defalcation portion of § 523(a)(4), it is necessary to determine whether the remaining debt might be non-dischargeable under either a larceny or embezzlement claim. Nondischargeability under § 523(a)(4) may rest on proof of embezzlement or larceny without requiring proof of a fiduciary relationship. See Klemens v. Wallace (In re Wallace), 840 F.2d 762, 765 (10th Cir.1988). Both claims have similar elements. The main difference between larceny and embezzlement is that with embezzlement, the debtor initially acquires the property lawfully, whereas larceny requires that the funds originally come into the debtor’s hands unlawfully. Bombardier Capital, Inc. v. Tinkler (In re Tinkler), 311 B.R. 869, 876 (Bankr.D.Colo.2004). In this case, the only potentially applicable claim is embezzlement, since PRI acquired the trust funds at issue legally when it received payments from its customers. MacArthur argues that, if reckless disregard is established for defalcation, then the intent necessary for embezzlement is also established. As discussed above, however, MacArthur failed to establish that Debtor acted with reckless disregard prior to August 2011. Furthermore, the defalcation standard described in Bullock is uniquely focused on a debtor’s conscious disregard of a risk that his conduct will violate a fiduciary duty. Focus on fiduciary duties is not a prerequisite of an embezzlement claim. As such, a finding of defalcation does not necessarily support a finding of embezzlement. See Bullock v. BankChampaign, — U.S. -, 133 S.Ct. 1754, 1760-61, 185 L.Ed.2d 922 (2013) (noting the differences between defalcation, embezzlement and larceny). MacArthur also cites to numerous cases construing the Colorado criminal theft statute in" }, { "docid": "19466604", "title": "", "text": "but nonetheless \"was clearly involved in self-dealing.\" App. to Pet. for Cert. 45a, 52a. It ordered petitioner to pay the trust \"the benefits he received from his breaches\" (along with costs and attorney's fees). Id ., at 47a. The court imposed constructive trusts on petitioner's interests in the mill and the original trust, in order to secure petitioner's payment of its judgment, with respondent BankChampaign serving as trustee for all of the trusts. 670 F.3d, at 1162; App. to Pet. for Cert. 47a-48a. After petitioner tried unsuccessfully to liquidate his interests in the mill and other constructive trust assets to obtain funds to make the court-ordered payment, petitioner filed for bankruptcy in federal court. Id ., at 27a, 30a. BankChampaign opposed petitioner's efforts to obtain a bankruptcy discharge of his state-court-imposed debts to the trust. And the Bankruptcy Court granted summary judgment in the bank's favor. It held that the debts fell within § 523(a)(4)'s exception \"as a debt for defalcation while acting in a fiduciary capacity.\" Id ., at 40a-41a. Hence, they were not dischargeable. The Federal District Court reviewed the Bankruptcy Court's determination. It said that it was \"convinced\" that BankChampaign was \"abusing its position of trust by failing to liquidate the assets,\" but it nonetheless affirmed the Bankruptcy Court's decision. Id ., at 27a-28a. In turn, the Court of Appeals affirmed the District Court. It wrote that \"defalcation requires a known breach of a fiduciary duty, such that the conduct can be characterized as objectively reckless.\" 670 F.3d, at 1166. And it found that petitioner's conduct satisfied this standard. Ibid. Petitioner sought certiorari. In effect he has asked us to decide whether the bankruptcy term \"defalcation\" applies \"in the absence of any specific finding of ill intent or evidence of an ultimate loss of trust principal.\" Brief for United States as Amicus Curiae 1. See also Pet. for Cert. i. The lower courts have long disagreed about whether \"defalcation\" includes a scienter requirement and, if so, what kind of scienter it requires. Compare In re Sherman, 658 F.3d 1009, 1017 (C.A.9 2011) (\"defalcation\" includes \"even innocent acts" } ]

[ { "docid": "23162250", "title": "", "text": "negative character reference. Although it did not order reinstatement or backpay, it did order a panoply of remedial measures, at least some of which were unquestionably personal to Hashimoto. The government’s failure to acknowledge these important aspects of the EEOC’s disposition of Hashimoto’s claim manifests an overly narrow view of what constitutes a legal “victory.” We therefore conclude that the EEOC’s order effected a “material alteration in the legal relationship between plaintiff and defendant” sufficient to confer prevailing party status upon Hashimoto. See Stivers, 71 F.3d at 753 n. 10 (citing Farrar, 506 U.S. at 111-12, 113 S.Ct. at 572-74); see also Smith, 659 F.2d at 1122 (plaintiff who is subject to an adverse performance evaluation in retaliation for EEO activities, but suffers no financial harm from the evaluation, is a “prevailing party” entitled to attorney’s fees even though only proper relief on the merits is removal of the improper evaluation from his personnel file). The government alternatively challenges the reasonableness of the fee award, arguing that because Hashimoto took nothing tangible from either her EEOC or district court proceedings, “the only reasonable fee is no fee at all.” We acknowledge that, in cases where a civil rights plaintiff “prevails” but receives only de minimis relief and achieves only “technical” success, the court is permitted to bypass the general rale requiring calculation of a lodestar and simply establish a low fee or no fee at all. See Morales v. City of San Rafael, 96 F.3d 359, 362-63 (9th Cir.1996) (interpreting Farrar). Whether the plaintiffs “success is purely technical or de minimis,” however, is determined by examining factors beyond the amount of money damages awarded. Id. at 363 (quoting Farrar, 506 U.S. at 117, 113 S.Ct. at 576 (O’Connor, J., concurring)). “Primary among such other considerations is ‘the significance of the legal issues on which the plaintiff claims to have prevailed’ and the ‘public purpose’ the plaintiffs litigation served.” Id. We have recently recognized that a plaintiff who achieves a “significant nonmonetary result not only for himself but for the community in general” attains more than a “technical” victory. Id. In" } ]

[ { "docid": "17561856", "title": "", "text": "denial of the motion to stay the judgment, granted a stay pending appeal, and set the case for an early hearing on the merits. B. Prevailing Party The state argues that G & G is not a prevailing party under 42 U.S.C. § 1988 because while it received the relief it requested- — an injunction — the staying of that injunction somehow nullified its legal effect or its mandate that the state alter its unlawful conduct. We reject this argument. In Farrar v. Hobby, the Supreme Court held that to be considered a prevailing party, a plaintiff must “obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement.” 506 U.S. 103, 111, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (citations omitted). “In short, a plaintiff ‘prevails’ when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Id. at 111-12, 113 S.Ct. 566. Here, G & G obtained an injunction from the district court, which materially altered the legal relationship between the parties by prohibiting the state from depriving G & G of property without any hearing. Certainly that change benefitted G & G and it is the prevailing party. See Herrington v. County of Sonoma, 883 F.2d 739, 744 (9th Cir.1989) (injunction, which appellate court upheld, rendered plaintiffs prevailing parties despite vacatur of damage award); see also Baumgartner v. Harrisburg Hous. Auth., 21 F.3d 541, 543 (3d Cir.1994) (plaintiff who has received injunctive relief has prevailed for purposes of section 1988). That a stay was issued after the district court’s grant of the injunction does not alter G & G’s status as the prevailing party in the district court, as the district court’s judgment is a statement of the rights of the parties unless and until that judgment is altered by a higher court. We have decided not to do so. C. General Award of Fees The state also claims that the district court erroneously awarded attorney fees based" }, { "docid": "6108614", "title": "", "text": "prevailing parties in certain civil rights cases, including actions brought under Title IX. See 42 U.S.C.A. § 1988(b) (West 2003) (“In any action or proceeding to enforce ... title IX of Public Law 92-318 , the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs”). A district court’s decision to grant or deny attorney’s fee under section 1988 is reviewed for abuse of discretion. See Randall v. Prince George’s County, 302 F.3d 188, 212 (4th Cir.2002). “[A] plaintiff ‘prevails’ when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). That standard is satisfied by a “judgment for damages in any amount, whether compensatory or nominal.” Id. at 113, 113 S.Ct. 566. Thus, there is no doubt that the award of nominal damages suffices to make Mercer a prevailing party within the meaning of section 1988(b). This conclusion, however, means only that Mercer is eligible for, rather than entitled to, an award of attorney’s fees. Although Mercer is a prevailing party, the district court has discretion to determine what constitutes a reasonable fee, a determination that requires the court to consider the extent of the plaintiffs success. See Farrar, 506 U.S. at 114, 113 S.Ct. 566 (“Once civil rights litigation materially alters the legal relationship between the parties, the degree of the plaintiffs overall success goes to the reasonableness of a fee award.... ” (internal quotation marks omitted)). If the prevailing party has recovered only nominal damages, the Supreme Court has explained that “the only reasonable fee is usually no fee at all.” Farrar, 506 U.S. at 115, 113 S.Ct. 566 (emphasis added); see also id. (“In some circumstances, even a plaintiff who formally ‘prevails’ under § 1988 should receive no attorney’s fees at all. A plaintiff who seeks compensatory damages but receives no more than nominal damages is often such a prevailing" }, { "docid": "20292029", "title": "", "text": "only to those attorneys’ fees incurred through the date of the preliminary injunction. It therefore reduced the award of attorneys’ fees and costs from the $60,967.50 requested by the Does to $22,810.00. See id.. at 10-12. II. DISCUSSION A. Attorneys’ Fees and Costs Under § 1988 The State Officials and St. Louis County Officials argue that the district court erred ‘in awarding the Does attorneys’ fees and costs as prevailing parties under § 1988. “We review de novo both the determination of whether a litigant is a prevailing party[ ] and the legal issues related to the award of attorney fees[.]” Advantage Media, L.L.C., v. City of Hopkins, Minn., 511 F.3d 833, 836 (8th Cir.2008) (internal quotation marks and citations omitted). “In the United States, parties are ordinarily required to bear their own attorney’s fees — the prevailing party is not entitled to collect from the loser.” Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). An exception to this general rule applies when Congress has provided explicit statutory authority for awarding fees to a prevailing party. See id. Such a grant of authority is found in 42 U.S.C. § 1988(b), which provides that “[i]n any action or proceeding to enforce a provision of ... [§] 1983 ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs[.]” “The test for prevailing party [as] explained by [the] Supreme Court is that ‘a plaintiff “prevails” when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.’” Advantage Media, 511 F.3d at 836 (quoting Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)). “The Supreme Court refined this standard in Buckhannon when it rejected the ‘catalyst’ theory, ... which permitted a plaintiff to recover fees if its lawsuit achieved the desired result through a voluntary change in the defendant’s conduct.” Id." }, { "docid": "9763692", "title": "", "text": "Agreement, as the only record evidence showed that the City had always complied with the Sewer Committee’s reasonable requests in the past. (Id. at 333-34.) Under the American Rule, parties to a lawsuit generally foot their own attorney fees “absent explicit statutory authority” to the contrary. Buckhannon Bd. & Care Home, Inc. v. W.V. Dep’t of Health & Human Res., 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). The Clean Water Act explicitly allows an award of attorney fees to “a prevailing or substantially prevailing party.” 33 U.S.C. § 1365(d). A party prevails either by “obtain[ing] an enforceable judgment ... or comparable relief through a consent decree or settlement ... [that] directly benefits the plaintiff] at the time of the judgment or settlement.” Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (internal citations omitted). The Supreme Court has made clear “ ‘that a plaintiff [must] receive at least some relief on the merits of his claim before he can be said to prevail,’ ” Buckhannon, 532 U.S. at 603-04, 121 S.Ct. 1835 (quoting Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987)), such that the relief “materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Farrar, 506 U.S. at 111-12, 113 S.Ct. 566. Further, the change in the relationship must be “judicially sanctioned;” a voluntary change in the relationship between the parties as a result of a lawsuit is insufficient to trigger a shift in the general rule that parties pay their own fees. Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835 (rejecting catalyst theory of awarding attorney fees under prevailing party fee-shifting statutes). Sierra Club can point to no “actual relief on the merits” as against the City. While the Sewer Committee entered a Settlement Agreement and agreed to address the sanitary sewer overflows, the City was not party to the agreement. Although the district court granted summary judgment in Sierra Club’s favor, all Sierra Club received was a declaration that the City" }, { "docid": "15096181", "title": "", "text": "Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t. of Health and Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Prior to Buckhannon, courts attempted to determine whether a party was a “prevailing party” for the purpose of recovering attorneys’ fees primarily by weighing the relief obtained against the relief sought. See, e.g., Fletcher v. City of Fort Wayne, 162 F.3d 975, 976 (7th Cir.1998) (“A plaintiff who recovers only nominal damages technically ‘prevails,’ ... but a judge has discretion to withhold fees when damages are tiny in relation to the claim.... In other words, for trivial recoveries the only reasonable award of fees is zero.”). In Buckhannon, however, the Supreme Court defined a prevailing party as “[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded.” 532 U.S. at 603, 121 S.Ct. 1835 (quoting Black’s Law Dictionary 1145 (7th ed. 1999)). In holding that a plaintiff was not- entitled to an award of attorneys’ fees when the lawsuit had been dismissed as moot, even though it appeared that the suit had induced the legislation that, rendered the action moot, the Court explained that a “material alteration of the legal relationship of the parties” is necessary to permit the award. Id. at 604, 121 S.Ct. 1835 (quoting Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-793, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)). The Court gave two examples of judicial outcomes that satisfy this requirement: an enforceable judgment on the merits or a settlement agreement enforced through a court-ordered consent decree. Id. An enforceable judgment establishes a plaintiff as a prevailing party because the plaintiff has received at least some relief based upon the merits of a claim. Id. A consent decree also passes the test because “[although [it] does not always include an admission of liability by the defendant, ... it nonetheless is a court-ordered ‘change [in] the legal relationship between [the plaintiff] and the defendant.’ ” Id. (quoting Texas State Teachers at 792,109 S.Ct. 1486). Although Buckhannon does not specifically mention Rule 68" }, { "docid": "22000653", "title": "", "text": "has not exceeded $2,000,000 from the time his case was filed through the present. (Liu Aff. ¶ 4.) b.Liu’s Initial Pro Se Status Defendants assert that Liu is not entitled to an EAJA fee award because, at the time Liu filed his Petition and his memorandum in opposition to the motion to dismiss, he was proceeding pro se. Pro se litigants are not entitled to EAJA fee awards. Kooritzky v. Herman, 178 F.3d 1315, 1320-21 (D.C.Cir.1999). The Court concludes that this argument does not affect Liu’s request for attorney fees. Liu is not seeking fees for work done while he was pro se; he only seeks attorney fees for work done by the attorneys that he hired during the pendency of the case. Liu’s initial pro se status does not preclude an attorney fee award. c.Whether Liu “Prevailed” “[T]o qualify as a ‘prevailing party,’ a plaintiff must obtain ‘actual relief on the merits of his claim [that] materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.’ ” John T. v. Iowa Dept. of Educ., 258 F.3d 860, 863-64 (8th Cir.2001) (quoting Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)). In other words, “a plaintiff must secure a ‘judicially sanctioned change in the legal relationship of the parties’ to qualify as a prevailing party.” Cody v. Hillard, 304 F.3d 767, 772 (8th Cir.2002) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)). “Any relief obtained must directly benefit [the plaintiff] at the time of the judgment or settlement.” Drennan v. Pulaski County Special Sch. Dist., 458 F.3d 755, 757 (8th Cir.2006) (citation omitted). Attorney fees are not warranted when the plaintiffs “prevailed on only a very small and technical part of their claim.” Id. (citation omitted). The Court concludes that Liu is a prevailing party because the Court granted him relief that was substantially the relief Liu requested in his Petition. Liu requested that the" }, { "docid": "21430895", "title": "", "text": "in the amount of $267,023.75. The court denied the petition but awarded the lead plaintiff, Steven Karraker, $5,000 as a fee for being a class representative. Plaintiffs appeal from the denial of attorney fees. The issue is whether the plaintiffs are prevailing parties and thus entitled to attorney fees under the ADA, 42 U.S.C. § 12205. In finding that they were not prevailing parties, the district court relied primarily on Barnes v. Broward County Sheriff’s Office, 190 F.3d 1274 (11th Cir.1999), which in turn relies on Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). In Farrar, the Court determined that a plaintiff who sued for $17 million and won $1 in nominal damages could be considered a prevailing party under 42 U.S.C. § 1988. To be a prevailing party, a plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought or comparable relief through a consent decree or settlement. Whatever relief the plaintiff secures must directly benefit him at the time of the judgment or settlement. Otherwise the judgment or settlement cannot be said to “affec[t] the behavior of the defendant toward the plaintiff.” Only under these circumstances can civil rights litigation effect “the material alteration of the legal relationship of the parties” and thereby transform the plaintiff into a prevailing party. In short, a plaintiff “prevails” when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff. At 111-112 (internal citations omitted). RAC argues that plaintiffs are not prevailing parties because they recovered no monetary (nor even nominal) damages. Although the plaintiffs obtained injunctive relief, RAC says they failed to show that they would receive any tangible benefit from that relief. The company claims RAC stopped administering the APT test in 2000, before this suit was filed—a claim plaintiffs dispute. Further, RAC says, no named plaintiff remains employed by RAC, and plaintiffs have not identified a single" }, { "docid": "14435313", "title": "", "text": "Sch. Dist., 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989); Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health and Human Resources, 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001); Halpern v. Principi, 384 F.3d 1297, 1303 (2004). The plaintiff is not required to prevail on every issue to be deemed a prevailing party. Austin v. Dep’t of Commerce, 742 F.2d 1417, 1420 (Fed.Cir.1984). These standards have certainly been met here. In this case, the court held that defendant failed to comply with OCI regulations and exceeded the permissible bounds of CICA’s unusual and compelling urgency exception. While defendant argued that these holdings are irrelevant without an enforceable judgment, that argument crumbles with an accurate assessment of the court’s previous holding. Defendant was enjoined from procuring any filters in excess of 183 “A kits” and 150 “B kits.” Without emphasizing the obvious, that is significantly below the 240 IBF kits defendant had adamantly requested — 57 kits to be exact. As defendant correctly points out, plaintiff did not seek to require defendant to issue a new J & A to procure additional IBF kits. Plaintiff did, however, seek to limit defendant’s procurement under the current J & A. Plaintiff obtained the relief it was seeking and the fact that defendant will have to prepare a new J & A as result of its previous shortcomings does not alter the analysis. In determining whether a party was a prevailing party, courts have not declined to confer such status merely because the party did not secure every aspect of the relief it was seeking. For instance, in Farrar v. Hobby, the plaintiff sought $17 million in compensatory damages for an alleged civil rights violation. Farrar v. Hobby, 506 U.S. 103, 106, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). After several appeals and remands, the plaintiff was only awarded nominal damages. Id. at 112, 113 S.Ct. 566. In other words, the plaintiff sought $17 million but was only awarded $1. The Supreme Court nevertheless held that the plaintiff was a prevailing party for EAJA" }, { "docid": "23613704", "title": "", "text": "that the same claims were moot and that, on the merits, the plaintiffs are not entitled to nominal damages (despite the fact thát with more clear and artful lawyering a claim for compensatory damages might have been stated). Finally, although a plaintiff may seek to keep a case alive by manufacturing a claim of nominal damages, there is little incentive to do so. A truly nominal victory, after Farrar and our court’s adoption of Justice O’Connor’s Farrar factors, will result in no fee. A plaintiff who manufactures such a claim will simply be creating more.expense for itself. III. I differ slightly with my distinguished colleague as well on his reading of Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), and Farrar. Contrary to Judge McConnell’s view, it seems that the Supreme Court has stated, or at least come very close to stating, that nominal damages do prevent mootness. See Buckhannon, 532 U.S. at 604-05, 121 S.Ct. 1835 (noting that, under the FHAA and the ADA, there must be a “judicially sanctioned change” in the parties’ legal relationship before a party is entitled to an award of attorneys’ fees, and that “[w]e have held that even an award of nominal damages suffices under this test”); Farrar, 506 U.S. at 115, 113 S.Ct. 566 (“As we have held, a nominal damages award does render a plaintiff a prevailing party by allowing him to vindicate his ‘absolute’ right to procedural due process through enforcement of a judgment against the defendant.”); see also City of Riverside v. Rivera, 477 U.S. 561, 574, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) (“Unlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms.”); Carey, 435 U.S. at 266, 98 S.Ct. 1042. Thus an award of nominal damages is a judicially sanctioned change in the parties’ legal relationship. See also Michael Ashton, Note, Recovering Attorneys’ Fees with the Voluntary Cessation Exception to Mootness Doctrine after Buckhannon" }, { "docid": "8863292", "title": "", "text": "the United States, a reasonable attorney’s fee as part of the costs.” A litigant is not eligible for attorney’s fees unless it is a “prevailing party.” Hewitt v. Helms, 482 U.S. 755, 759, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987). In Hewitt, the Supreme Court held that, at a minimum, a plaintiff must receive “some relief on the merits of his claim” in order to prevail. Id. at 760, 107 S.Ct. 2672. Texas State Teachers Ass’n v. Garland Independent School District, 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989), reaffirmed the floor set in Hewitt and noted that the plaintiff must be able to point to “a resolution of the dispute which changes the legal relationship between itself and the defendant.” Id. at 791-92, 107 S.Ct. 2672. In fact, Texas State Teachers characterized the “touchstone” of the prevailing party inquiry as whether there was a “material alteration of the legal relationship of the parties.” Id. at 792-93, 109 S.Ct. 1486. Three years later, the Court returned to this issue in Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). Farrar provided one of the clearest formulations of the prevailing party jurisprudence. To qualify as a prevailing party, the plaintiff must (1) obtain actual relief, such as an enforceable judgment or a consent decree; (2) that materially alters the legal relationship between the parties; and (3) modifies the defendant’s behavior in a way that directly benefits the plaintiff at the time of the judgment or settlement. Id. at 111-12, 113 S.Ct. 566. Most recently, in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), the Court reaffirmed that both judgments on the merits and settlement agreements enforced through consent decrees were sufficient to create a prevailing party. Id. at 604, 121 S.Ct. 1835. Again, the Court stated that the awarded relief for which fees were sought must materially alter the “legal relationship of the parties.” Id. (citing Texas State Teachers, 489 U.S. at 792-93, 109 S.Ct. 1486). In this" }, { "docid": "15299135", "title": "", "text": "964, 19 L.Ed.2d 1263 (1968)). The Supreme Court has given a “generous formulation” to the term “prevailing party,” stating that “ ‘plaintiffs may be considered “prevailing parties” for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’ ” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (citation omitted). In Texas State Teachers Ass’n v. Garland Independent School Dist., 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989), the Court synthesized the definition of “prevailing party” as follows: “[T]o be considered a prevailing party within the meaning of § 1988, the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant.” Id. at 792, 109 S.Ct. 1486 (emphasis added). “The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties .... ” Id. at 792-93, 109 S.Ct. 1486 (emphasis added). In Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), the Court concluded that a plaintiff “must obtain [either] an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement, [and] [whatever relief the plaintiff secures must directly benefit him at the time of the judgment or settlement .... Only under these circumstances can civil rights litigation ef- feet ‘the material alteration of the legal relationship of the parties’ and thereby transform the plaintiff into a prevailing party.” Id. at 111, 113 S.Ct. 566 (internal citations omitted) (emphasis added). Applying these criteria, the Farrar Court held that a plaintiff who wins only nominal damages is still a prevailing party under § 1988. See 506 U.S. at 112, 113 S.Ct. 566. Finally, in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), the Supreme Court recently restated that “settlement agreements enforced through a consent decree may serve as the basis for" }, { "docid": "13452468", "title": "", "text": "Section 1988 by its terms limits eligibility for attorneys’ fees to a “prevailing party.” 42 U.S.C. § 1988(b). A party is not a prevailing party if it only “conceivably could benefit” from the court’s judgment. Barnes v. Broward County Sheriff’s Office, 190 F.3d 1274, 1278 (11th Cir.1999). There must exist evidence that the court’s judgment “materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoted in Barnes, 190 F.3d at 1278). Thus, a party that succeeds on the merits nonetheless is not a prevailing party for the purpose of attorneys’ fees if it does not directly benefit from the court’s order at the time it is rendered. See Hewitt v. Helms, 482 U.S. 755, 763-64, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987) (noting that plaintiff was not prevailing party because he did not directly benefit from final judgment at the time it was entered). The analysis begins with the United States Supreme Court’s decisions in Hewitt v. Helms, 482 U.S. 755, 762, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987), and Rhodes v. Stewart, 488 U.S. 1, 4, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988), two cases where the Supreme Court held that the litigants were not prevailing parties for the purpose of attorneys’ fees. In Hewitt, a prisoner successfully argued that his administrative segregation and subsequent conviction for participating in a prison riot violated his due process rights. The Supreme Court noted that during the pendency of the lawsuit the plaintiff had been released from prison. The Court held that he, therefore, was not a prevailing party for the purpose of attorneys’ fees because the vindication of his constitutional rights was merely a “moral satisfaction.” Hewitt, 482 U.S. at 762, 107 S.Ct. 2672. Even though the plaintiff was subsequently returned to prison, and thus ultimately may have bene-fitted from his victory in the Section 1983 case, the Court said “that fortuity can hardly render him, retroactively, a ‘prevailing party’ ....” Id. at 763-64, 107" }, { "docid": "8863293", "title": "", "text": "506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). Farrar provided one of the clearest formulations of the prevailing party jurisprudence. To qualify as a prevailing party, the plaintiff must (1) obtain actual relief, such as an enforceable judgment or a consent decree; (2) that materially alters the legal relationship between the parties; and (3) modifies the defendant’s behavior in a way that directly benefits the plaintiff at the time of the judgment or settlement. Id. at 111-12, 113 S.Ct. 566. Most recently, in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), the Court reaffirmed that both judgments on the merits and settlement agreements enforced through consent decrees were sufficient to create a prevailing party. Id. at 604, 121 S.Ct. 1835. Again, the Court stated that the awarded relief for which fees were sought must materially alter the “legal relationship of the parties.” Id. (citing Texas State Teachers, 489 U.S. at 792-93, 109 S.Ct. 1486). In this case, the Homeowners sought declaratory relief, alleging the remedial order was unconstitutional because it included race-based distinctions and was not narrowly tailored. They also sought a temporary restraining order, a preliminary injunction, and a permanent injunction to prevent the DHA from purchasing and/or constructing public housing on the disputed sites. The district court denied the Homeowners the relief they sought and, in response to the Walker plaintiffs’ suit, declared the remedial order constitutional. On appeal, we partially vacated the district court’s remedial order, reversed the declaratory judgment, and stayed the construction of the housing projects until the district court revised the order. Our opin ion also included a detailed discussion of how the remedial order should be reformulated. Specifically, we held that the race-based portion of the order was unconstitutional because “there are promising, non-racially discriminatory ways to continue desegregating public housing in Dallas.” Walker, 169 F.3d at 987. Upon remand, the Walker plaintiffs proposed detailed modifications to the remedial order, and the district court ultimately vacated the provisions of the order that contained the" }, { "docid": "20042805", "title": "", "text": "Federal litigation, such as antitrust cases____” S.Rep. No. 1011, 94th Cong., 2d Sess. 5 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5913. § 1988. Farrar, 506 U.S. at 109-112, 113 S.Ct. at 572-73 (discussing Hewitt v. Helms, 482 U.S. 755, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987); Rhodes v. Stewart, 488 U.S. 1, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988) (per curiam); Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)). In Farrar, the Court was confronted with the case of a plaintiff who won nominal damages under section 1988; a plaintiff whom Justice O’Connor characterized with, “[i]f ever there was a plaintiff who deserved no attorney’s fees at all, that plaintiff is Joseph Farrar,” Farrar, 506 U.S. at 116, 113 S.Ct. at 575 (O’Connor, J., concurring). Give this factual scenario, the Court rejected in part the Garland conception of prevailing party as underinclusive: “[A] technical victory may be so insignificant ... as to be insufficient to support prevailing party status.” Garland, 489 U.S. at 792 [109 S.Ct. at 1493]. According to the Court, even a technically victorious plaintiff would be a prevailing party for purposes of section 1988. “Although the ‘technical’ nature of a nominal damages award or any other judgment does not affect the prevailing-party inquiry, it does bear on the propriety of fees awarded under § 1988. Once civil rights litigation materially alters the legal relationship between the parties, ‘the degree of the plaintiffs overall success goes to the reasonableness’ of a fee award under Hensley v. Eckerharb, 461 U.S. 424 [103 S.Ct. 1933, 76 L.Ed.2d 40] (1983).” Farrar, 506 U.S. at 114, 113 S.Ct. at 574. Thus, the Court held that a plaintiff who received nominal civil rights damages is a prevailing party under section 1988, but is not necessarily entitled to attorneys’ fees because, under section 1988, prevailing parties are entitled only to reasonable attorneys’ fees. The nominal damage award is a factor to consider in determining the reasonableness of such fee awards, but not a factor in determining the prevailing status of the plaintiff. As" }, { "docid": "18867455", "title": "", "text": "Clerk’s Notes, Jan. 31, 2011. B. Attorney’s Fees The decision whether to award attorneys’ fees is a two-step process. This Court must first determine if fees are warranted, and, if they are, the Court must determine the amount of fees appropriate. 1. Entitlement to Attorneys’ Fees Awuah and DaSilva move for attorney’s fees under Massachusetts General Laws chapter 149, section 150. This statute provides in pertinent part: “An employee ... who prevails in [an action for a violation of Massachusetts General Laws chapter 149, section 148B,] shall be awarded ... the costs of the litigation and reasonable attorneys’ fees.” Mass. Gen. Laws c. 149, § 150 (emphasis added). This statute makes mandatory the award of fees to a prevailing plaintiff. See Killeen v. Westban Hotel Venture, LP, 69 Mass.App.Ct. 784, 790, 872 N.E.2d 731 (2007). As arbitrator, I awarded Pius Awuah $1,586.55 and Manuel DaSilva $5,750.94. Award ¶3. “A judgment for damages in any amount, whether compensatory or nominal, modifies the defendant’s behavior for the plaintiffs benefit by forcing the defendant to pay an amount of money he otherwise would not pay.” Farrar v. Hobby, 506 U.S. 103, 113, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). Thus, both Awuah and DaSilva are prevailing parties entitled to attorneys’ fees. See Buckhannon Bd. & Care Home, Inc. v. West Va. Dep’t of Health & Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (stating that a prevailing party is one that “achieve[d] a material alteration of the legal relationship” between the parties). 2. Calculation of Attorneys’ Fees The lodestar approach is the proper method to calculate attorneys’ fees. Marrotta v. Suffolk Cnty., 726 F.Supp.2d 1, 4 (D.Mass.2010). To calculate the appropriate fee amount, this Court must determine “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 295 (1st Cir.2001) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)) (internal quotation marks omitted). The party seeking an award of attorneys’ fees bears the burden of establishing and" }, { "docid": "10894553", "title": "", "text": "with the parties’ stipulation, the district court entered an order dismissing Higher Taste’s action with prejudice. The order did not incorporate the terms of the parties’ settlement agreement nor provide for the court’s retention of jurisdiction, other than over the issue of attorney’s fees. Higher Taste then moved for attorney’s fees under 42 U.S.C. § 1988(b), which permits an award to the “prevailing party” in certain civil rights actions, including those brought under 42 U.S.C. § 1983. The district court denied Higher, Taste’s motion on the ground that neither the preliminary injunction nor the subsequent settlement rendered Higher Taste a prevailing party within the meaning of § 1988. We review that ruling de novo because it turns on an issue of statutory construction—the meaning of “prevailing party.” Carbonell v. INS, 429 F.3d 894, 897-98 (9th. Cir.2005). - A plaintiff “prevails” for purposes of § 1988 “when actual relief on the merits of his claim materially alters the legal relationship .between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). Relief “on the merits” occurs when the material alteration of the parties’ legal relationship is accompanied by “judicial imprimatur on the change.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Judicial imprimatur can come in the form of .an enforceable judgment on the merits or a court-ordered consent decree (the two examples the Court gave in Buckhannon), but those are not the exclusive means of satisfying the requirement. Carbonell, ,429 F.3d at 898; Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir.2002). Other court-approved actions will suffice, provided they entail a judicial determination that the claims on which the plaintiff obtains relief are potentially meritorious. See Buckhannon, 532 U.S. at 606, 121 S.Ct. 1835. Lower courts have struggled to decide whether the requirements for prevailing-party status are met by a plaintiff who wins a preliminary injunction but does not litigate the" }, { "docid": "18938036", "title": "", "text": "party, a civil rights plaintiff must ... obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement. Whatever relief the plaintiff secures must directly benefit [her] at the time of the judgment or settlement. Otherwise the judgment or settlement cannot be said to “affec[t] the behavior of the defendant toward the plaintiff.” Rhodes [v. Stewart, 488 U.S. 1, 4, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988) ]. Only under these circumstances can civil rights litigation effect the material alteration of the legal relationship of the parties and thereby transform the plaintiff into a prevailing party. In short, a plaintiff “prevails” when actual relief on the merits of [her] claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff. 506 U.S. 103, 111-112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (internal quotation and additional citations omitted) (third alteration in original). As Justice Thomas emphasized in language applicable here: [A] judicial pronouncement that the defendant has violated the Constitution, unaccompanied by an enforceable judgment on the merits, does not render the plaintiff a prevailing party. Of itself, “the moral satisfaction [that] results from any favorable statement of law” cannot bestow prevailing party status. Hewitt [v. Helms, 482 U.S. 755, 762, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987) ]. No material alteration of the legal relationship between the parties occurs until the plaintiff becomes entitled to enforce a judgment, consent decree, or settlement against the defendant. 506 U.S. at 112-13, 113 S.Ct. 566 (second alteration in original). In Farrar, the Supreme Court held that a plaintiff, who received a nominal damage award of. one dollar on his 42 U.S.C. § 1983 action, was a prevailing party entitled to attorney’s fees. Id. at 113, 113 S.Ct. 566. Although the damage award was nominal, Justice Thomas reasoned that “[a] judgment for damages in any amount, whether compensatory or nominal, modifies the defendant’s behavior for the plaintiffs benefit by forcing the defendant to pay an amount of money he otherwise would not pay.”" }, { "docid": "20515750", "title": "", "text": "of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). Significant here, the Supreme Court has emphasized that “the prevailing party inquiry does not turn on the magnitude of the relief obtained.” Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). The Supreme Court reiterated this point recently in Lefemine v. Wideman when it explained that a plaintiff prevails “ “when actual relief on the merits of [the plaintiffs] claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.’ ” — U.S. -, 133 S.Ct. 9, 11, 184 L.Ed.2d 313 (2012) (per curiam) (quoting Farrar, 506 U.S. at 111-12, 113 S.Ct. 566). The Court continued that it has “repeatedly held that an injunction or declaratory judgment, like a damages award, will usually satisfy that test.” Id. (citing Rhodes v. Stewart, 488 U.S. 1, 4, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988) (per curiam)). The Court thus concluded that the plaintiffs in Lefemine, who had not obtained nominal damages, but instead had obtained a permanent injunction against the defendant police officers for violations of their First Amendment rights, were prevailing parties under § 1988. Id. at 10-11. The Court rejected the Fourth Circuit’s reasoning that a denial of fees was appropriate because the injunction merely ordered the defendants to comply with the law and because no other damages were awarded. Id. at 11. The Court then remanded for the lower courts to conduct the special-circumstances inquiry to determine whether “there may be other grounds on which the police officers could contest liability for fees.” Id. at 12. Here, the issue of Appellants’ prevailing-party status has been conclusively resolved. The district court concluded that Appellants are prevailing parties within the meaning of § 1988. See Fee Order at 2-3. The City did not appeal that determination." }, { "docid": "15299136", "title": "", "text": "506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), the Court concluded that a plaintiff “must obtain [either] an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement, [and] [whatever relief the plaintiff secures must directly benefit him at the time of the judgment or settlement .... Only under these circumstances can civil rights litigation ef- feet ‘the material alteration of the legal relationship of the parties’ and thereby transform the plaintiff into a prevailing party.” Id. at 111, 113 S.Ct. 566 (internal citations omitted) (emphasis added). Applying these criteria, the Farrar Court held that a plaintiff who wins only nominal damages is still a prevailing party under § 1988. See 506 U.S. at 112, 113 S.Ct. 566. Finally, in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), the Supreme Court recently restated that “settlement agreements enforced through a consent decree may serve as the basis for an award of attorney’s fees.” Id. at 604, 121 S.Ct. 1835 (citing Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980)). The Court confirmed that “[a]lthough a consent decree does not always include an admission of liability by the defendant, it nonetheless is a court-ordered ‘ehang[e][in] the legal relationship between [the plaintiff] and the defendant.’ ” Id. (quoting Texas State Teachers Ass’n, 489 U.S. at 792, 109 S.Ct. 1486 (citing Hewitt v. Helms, 482 U.S. 755, 760-61, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987), and Rhodes v. Stewart, 488 U.S. 1, 3-4, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988) (per curiam,))). In a footnote, the Court distinguished between court-approved settlements and private settlements, stating that “private settlements do not entail the judicial approval and oversight involved in consent decrees. And federal jurisdiction to enforce a private contractual settlement will often be lacking unless the terms of the agreement are incorporated into the order of dismissal.” Id. at n. 7, 121 S.Ct. 1835 (citing Kokkonen v. Guardian Life Ins. Co. of America," }, { "docid": "14548989", "title": "", "text": "prevailing (or non-prevailing) party is a legal determination that we. review de novo. Smyth v. Rivero, 282 F.Sd 268, 274 (4th Cir.2002). The IDEA states in relevant part that In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party. § 1415(e)(4)(B). The Supreme Court has noted that even an award of nominal damages makes a party the prevailing party. Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and Human Resources, 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (noting that “even an award of nominal damages suffices” to make a party a prevailing party) (citing Farrar v. Hobby, 506 U.S. 103, 112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)). An award of attorneys’ fees conditioned on a party’s having prevailed does not require the party to have prevailed on every claim; the party’s obtaining judicially sanctioned and enforceable final relief on some claims is sufficient. See, e.g., Rum Creek Coal Sales, Inc v. Caperton, 31 F.3d 169, 174 (4th Cir.1994) (noting that a party may receive attorneys’ fees as a prevailing party “[w]hen [it] prevails on only some of the claims made”); see also Richardson v. Miller, 279 F.3d 1, 3 (1st Cir.2002) (“a plaintiff need not prevail on every claim and obtain all relief sought to qualify as a prevailing party”). Accordingly, the district court’s award of reimbursement of over $11,000 in expenses to G was an enforceable legal judgment which plainly rendered G a prevailing party for purposes of the IDEA, and we reverse its holding that G was not a prevailing party. D. Finally, G argues that the district court erred in refusing to grant him prejudgment interest on the reimbursement award. The district court determined, in ruling on a motion to reconsider its earlier judgment, that prejudgment interest should not be awarded because the plaintiffs were not the prevailing party, and that because the reimbursement award “did not make the plaintiffs whole" } ]

[ { "docid": "17212369", "title": "", "text": "its discretion in deeming her motion untimely under Fed.R.Crim.P. 33(b)(2). French relies on United States v. Mack, 362 F.3d 597 (9th Cir.2004), and Rodgers v. Marshall, 678 F.3d 1149 (9th Cir.2012), neither of which compels a contrary conclusion. In Mack, we held that it was structural error to forbid a pro se defendant from cross-examining witnesses, making objections, or presenting a closing argument, even where the defendant was disruptive and contemptuous of the court. 362 F.3d at 601-03. And, while we held in Rodgers that a pro se defendant’s Sixth Amendment rights were violated where the district court denied his request to appoint counsel to assist him with a post-verdict motion, 678 F.3d at 1154, the Supreme Court later reversed this decision. Marshall v. Rodgers, — U.S. —, 133 S.Ct. 1446, 185 L.Ed.2d 540 (2013) (per curiam). The Supreme Court held that no such right was clearly established under its precedent. Id. at 1450-51. Thus, neither Mack nor Rodgers supports the proposition that the district court abused its discretion by refusing to grant French’s post-conviction motions “in the interest of justice.” IV. Sufficient Evidence Supported French’s Wire and Mail Fraud Convictions, but Not the Money Laundering Convictions Next, French contends that the district court should have granted her motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29(c) because the evidence was insufficient to support her convictions. We review a district court’s denial of a Rule 29 motion de novo. United States v. Wiggan, 700 F.3d 1204, 1210 (9th Cir.2012). When assessing a sufficiency of evidence challenge, we must consider the evidence presented at trial in the light most favorable to the prosecution. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.2010) (en banc). We then ask “whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.” Id. (alteration, citation, and internal quotation marks omitted). A. We first consider whether sufficient evidence supported French’s wire and mail fraud convictions. The elements of these offenses are (1) proof of a scheme" } ]

[ { "docid": "3753192", "title": "", "text": "close of the Government’s evidence, Gonzalez moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, arguing that the Government’s evidence established no more than that she was present at St. Jude. Counsel argued that the Government had failed to prove that Gonzalez had agreed to participate in the charged conspiracy. The district court denied the motion. The jury found Gonzalez guilty on both conspiracy counts. On December 20, 2013, the district court sentenced her to 60 months in prison on Count 1 and 84 months in prison on Count 2, to be served concurrently. The district court also imposed concurrent terms of three years’ supervised release upon Gonzalez’s release, ordered restitution in the amount of $8,289,286, and imposed a $200 special assessment. This timely appeal followed. II. A. First, Gonzalez claims that the evidence was insufficient to sustain either conspiracy conviction because the evidence failed to prove beyond a reasonable doubt that she knew of the conspiracy at the clinic and that she voluntarily joined it. We review de novo a challenge to the denial of a Rule 29 motion for a judgment of acquittal based on sufficiency of the evidence grounds. United States v. Capers, 708 F.3d 1286, 1296 (11th Cir. 2013). We are also required to review the evidence in the light most favorable to the jury verdict and draw all inferences in its favor. Id. Thus, we are obliged to affirm the convictions “if there is substantial evidence to support [them], ‘unless no trier of fact could have found guilt beyond a reasonable doubt.’ ” United States v. Pineiro, 389 F.3d 1359, 1367 (11th Cir. 2004) (quoting United States v. Lyons, 53 F.3d 1198, 1202 (11th Cir. 1995)). To sustain a conviction for conspiracy to defraud the United States in violation of 18 U.S.C. § 371 (Count 1), the Government must prove “(1) an agreement among two or more persons to achieve an unlawful objective; (2) knowing and voluntary participation in the agreement; and (3) an overt act by a conspirator in furtherance of the agreement.” United States v. Hasson, 333 F.3d 1264," }, { "docid": "8241471", "title": "", "text": "sentenced Okechuku to 300 months in prison, Oti to 97 months, Iwuoha to 97 months, and Rutledge to 120 months. All four of these defendants now appeal their convictions on various grounds. II. Sufficiency of the Evidence Okechuku, Iwuoha, and Oti challenge the sufficiency of the evidence for their convictions. Because Okechuku and Iwuoha preserved the issue by moving for acquittal under Federal Rule of Criminal Procedure 29 at the close of the government’s case-in-chief and again post-verdict, we will review their challenges de novo. See United States v. Girod, 646 F.3d 304, 313 (5th Cir. 2011). Our de novo review of a challenge to the sufficiency of the evidence is “highly deferential to the verdict.” United States v. Cannon, 750 F.3d 492, 506 (5th Cir. 2014). We consider the evidence in the light most favorable to the government, with all reasonable inferences and credibility determinations made in the government’s favor. United States v. Santillana, 604 F.3d 192, 195 (5th Cir. 2010). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Our inquiry is limited to whether the jury’s verdict was reasonable, not whether we believe it to be correct. See United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011). Because Oti failed to renew her motion for judgment of acquittal after the jury’s verdict, we review her sufficiency challenge for plain error. See United States v. McIntosh, 280 F.3d 479, 483 (5th Cir. 2002). In the sufficiency of the evidence context, this court has stated that it will reverse under plain error review only if there is a “manifest miscarriage of justice,” which occurs only where “the record is devoid of evidence pointing to guilt” or the evidence is so tenuous that a conviction is “shocking.” United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012). A. Count One Okechuku, Iwuoha, and Oti each challenge the" }, { "docid": "23113954", "title": "", "text": "convicted of providing and concealing material support to the Count-Two conspiracy, in violation of 18 U.S.C. § 2339A and 18 U.S.C. § 2 (Count Five), and with conspiracy to provide and conceal such support, in violation of 18 U.S.C. § 371 (Count Four). Stewart was also convicted of making false statements in violation of 18 U.S.C. § 1001 (Counts Six and Seven). On October 16, 2006, following the denial of the defendants’ motions for a judgment of acquittal and other relief, the district court sentenced the defendants. See Sentencing Transcript of Oct. 16, 2006 (“Sent’g Tr.”). Sattar was sentenced to a 288-month term of incarceration to be followed by a five-year term of supervised release and a $300 special assessment; Stewart was sentenced to a 28-month term of incarceration to be followed by a two-year term of supervised release and a $500 special assessment; and Yousry was sentenced to a 20-month term of incarceration to be followed by a two-year term of supervised release and a $300 special assessment. Sattar is currently serving his sentence; Stewart and Yousry are free on bail pending appeal. All three defendants appeal, challenging the validity of their convictions on a variety of grounds. The government challenges the reasonableness of the sentences on cross-appeal. DISCUSSION I. Standard of Review We review de novo the district court’s legal conclusions, including those interpreting and determining the constitutionality of a statute. United States v. Awadallah, 349 F.3d 42, 51 (2d Cir.2003), cert. denied, 543 U.S. 1056, 125 S.Ct. 861, 160 L.Ed.2d 781 (2005). We also review de novo a district court’s denial of a motion pursuant to Federal Rule of Criminal Procedure 29 for a judgment of acquittal on the ground that the evidence was insufficient to sustain the conviction. United States v. Florez, 447 F.3d 145, 154 (2d Cir.), cert. denied, 549 U.S. 1040, 127 S.Ct. 600, 166 L.Ed.2d 445 (2006). Because the jury verdict will be upheld against a sufficiency challenge “if we find that ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,’ ” United States" }, { "docid": "6251209", "title": "", "text": "the United States without a permit. See 33 U.S.C. §§ 1311(a), 1319(c)(2)(A); 18 U.S.C. § 2. The counts covered discharges by Moses into Teton Creek in the Aspens Subdivision area from 2002 to 2004. A four-day jury trial was held in September of 2005. On September 14, 2005, after the close of the government’s case, Moses timely moved for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, which the court denied. Ultimately, the jury returned a verdict finding Moses guilty on all counts. In February of 2006, Moses moved for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure and attempted to introduce new evidence to support an estoppel argument. Moses claimed he had been misled by the government into believing that his conduct was lawful. The district court denied the motion. One month later, Moses filed a second motion for a new trial. The district court denied that motion also. On June 30, 2006, the district court sentenced Moses to 18 months imprisonment on each count, to be served concurrently, and imposed a $9,000 fine, a $300 special assessment, and one year of supervised release. This appeal followed. Moses asserts that the evidence was not sufficient to support the verdict, and that he should have been granted a new trial. JURISDICTION AND STANDARDS OF REVIEW The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291. Because Moses “preserved his sufficiency claim by moving for a judgment of acquittal, we review his claim de novo.” United States v. Lyons, 454 F.3d 968, 971 (9th Cir.2006). Evidence is sufficient to support a conviction, if “ ‘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.’ ” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). We review for abuse of discretion a district court’s denial of a motion for a new trial." }, { "docid": "20470760", "title": "", "text": "can be reversed only if, viewed in the context of the entire trial, the [claimed] impropriety seriously affected the fairness, integrity, or public reputation of judicial proceedings, or where failing to reverse a conviction would result in a miscarriage of justice.” Id. (citation omitted). We review de novo the question of whether a trial court’s jury instruction accurately states the law. United States v. Hopper, 177 F.3d 824, 831 (9th Cir.1999). We review for abuse of discretion a district court’s formulation of jury instructions. United States v. Franklin, 321 F.3d 1231, 1240-41 (9th Cir.2003), cert. denied, 540 U.S. 858, 124 S.Ct. 161, 157 L.Ed.2d 106 (2003). Thus, while the question of whether the district court’s instructions adequately covers a defense theory is reviewed de novo, we “look to the instructions as a whole and a refusal to give a proper specific instruction can be remedied by other instructions that cover the subject.” United States v. Thomas, 612 F.3d 1107, 1122 (9th Cir.2010) (internal citations omitted). There must be sufficient evidence to constitutionally support a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence must be viewed in the light most favorable to the Government to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. Id.; United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir.2010) (en banc). We “may not usurp the role of the finder of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial.” Nevils, 598 F.3d at 1164. Evidence is sufficient where it “is adequate to allow ‘any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.’ ” Id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). DISCUSSION I. Prosecutorial Misconduct A. Reyes claims that the Government asserted a new, false theory at his second trial; specifically, that Reyes “grant[ed] ... in-the-money options to himself’ to “pad his own pocket.” Reyes argues it was prosecutorial misconduct to focus on this theory" }, { "docid": "10704107", "title": "", "text": "willful. A Our review of the sufficiency of evidence to support a criminal conviction is governed by Jackson v. Virginia, which requires a court of appeals to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319, 99 S.Ct. 2781. Jackson “establishes a two-step inquiry for considering a challenge to a conviction based on sufficiency of the evidence.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.2010) (en banc). “First, a reviewing court must consider the evidence presented at trial in the light most favorable to the prosecution” without “considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial.” Id. “Second, after viewing the evidence in the light most favorable to the prosecution, [we] must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.’ ” Id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781) (brackets omitted). We review the evidence presented at Mousavi’s trial under this standard. B We first turn to Mousavi’s contention that the evidence presented at trial is constitutionally insufficient to support his conviction because the government failed to prove any violation of the ITR. According to Mousavi, the government proved at most that Mousavi entered into an agreement to provide future services to a Kuwaiti company that sought to do business in Iran. Mousavi argues that because 31 C.F.R. § 560.206, the ITR at issue, does not proscribe an agreement to take steps in the future, the conduct alleged by the government does not fall within the scope of the regulation. Furthermore, Mousavi argues that § 560.206 is not clearly applicable to agreements with companies that are not located in Iran. At a minimum, Mousavi argues, § 560.206 is ambiguous with respect to its applicability to agreements for prospective services with Kuwaiti companies, and the rule of lenity demands that such ambiguity be" }, { "docid": "16650789", "title": "", "text": "moved for an acquittal on both counts pursuant to Federal Rule of Criminal Procedure 29(a), which he renewed after the close of his case. Both motions were denied. The jury returned a guilty verdict on the § 82(a)(6) charge (count two), but was unable to reach a verdict on the § 844(e) charge (count one). Count one was dismissed upon the government’s motion. On April 5, 2000, Mendoza filed a motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c). The district court denied that motion and sentenced Mendoza to ten months’ incarceration. Mendoza timely appeals. DISCUSSION I. Insufficiency of the Evidence Mendoza argues that the government did not produce sufficient evidence to prove beyond a reasonable doubt to a rational trier of fact that Mendoza was the cause of any endangerment to Flight 24 while it was in flight. He argues: (1) there was insufficient evidence presented at trial to prove that Flight 24 was endangered while in flight; (2) Mendoza was prejudiced by the government’s reference, during closing argument, to the dictionary definition of endangerment and its related comments thereto; and (3) if Flight 24 was endangered, he was not responsible for such endangerment because intervening actors broke the chain of causation. This court reviews de novo the district court’s ruling on Mendoza’s motion for acquittal. See United States v. Tubiolo, 134 F.3d 989, 991 (9th Cir.1998). The test applied is the same as the test for challenging the sufficiency of the evidence. United States v. Clayton, 108 F.3d 1114, 1116 (9th Cir.1997). “Consequently, we review the evidence in a light most favorable to the prosecution to determine whether any rational trier of fact could find the essential elements of the offense beyond a reasonable doubt.” Id. A. Endangerment to the Safety of Flight 24 While in Flight Mendoza argues that there was insufficient evidence to prove that his actions endangered Flight 24 while in flight. The statute does not define “endangering,” and we have been cited no case law discussing the term as it is used in 18 U.S.C. § 32(a)(6). Statutory interpretation" }, { "docid": "23373186", "title": "", "text": "sentenced Adin to 41 months on each count, to be served concurrently, and three years of supervised release. It sentenced Israel to 46 months on each count, to be served concurrently, and three years of supervised release. II. Sufficiency of the Evidence A. Defendants argue that there was insufficient evidence to support their convictions under §§ 5324 and 5332 because, not knowing the bag of money was hidden in the van, they did not have the specific intent the statutes required. We review de novo a district court’s determination that sufficient evidence supports a conviction. United States v. Tatoyan, 474 F.3d 1174, 1177 (9th Cir.2007). To satisfy due process in the conviction of a defendant, there must be “proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Given the challenge to the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir.2010) (en banc). To apply this standard, we follow a two-step approach. First, all evidence must be viewed in the light most favorable to the prosecution, and, when “faced with a record of historical facts that supports conflicting inferences,” a reviewing court “must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at 326, 99 S.Ct. 2781; see also Nevils, 598 F.3d at 1164. Second, looking at the evidence in this manner, we must determine whether the evidence is adequate to allow “any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319," }, { "docid": "21818254", "title": "", "text": "or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense .... shall be fined ... or imprisoned not more than 20 years, or both. § 1512(b)(3) (emphasis added). The first jury trial ended in a mistrial. After a second trial, a new jury found Kirsch and Johnson not guilty of assault. The jury did find Johnson guilty of obstruction of justice, however. Johnson moved for a judgment of acquittal, for a new trial, and to dismiss the indictment. He argued that Fowler v. United States, 563 U.S. 668, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011) applied to § 1512(b)(3), requiring the Government to prove that there was a “reasonable likelihood” that he intended to hinder communication to an officer of the United States, specifically, which he argued it failed to do. The district court denied all three motions. Although the court agreed that Fowler applied, it ultimately concluded that the Government had met the “reasonable likelihood” standard. We agree on the former point, but not the latter. II. In the context of a Rule 29(c) motion for a judgment of acquittal, we review de novo the sufficiency of the evidence. See United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc). In reviewing the constitutional sufficiency of the evidence, we must determine 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.” Jack son v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Katakis, 800 F.3d 1017, 1023 (9th Cir. 2015). III. As a threshold matter, we agree with Johnson and the district court that Fowler’s reasonable likelihood standard applies to 18 U.S.C. § 1512(b)(3). The defendant in Fowler challenged a witness tampering conviction under 18 U.S.C. § 1512(a)(1)(c), a similar investigation-related provision of the same statute at issue here. Fowler, 563 U.S. at 670-71,131 S.Ct. 2045. Acknowledging that the statute expressly states that “no" }, { "docid": "15081697", "title": "", "text": "because he was entering the United States from Canada. The district court denied the motion, concluding that Gonzalez-Diaz was “found in” the United States because he had never been admitted into Canada. Gonzalez-Diaz was convicted on all counts, and now appeals. Standard op Review We review de novo the denial of a Rule 29 motion for acquittal. See United States v. Rocha, 598 F.3d 1144, 1153 (9th Cir.2010). The test to be applied is the same as for a challenge to the sufficiency of the evidence. See id. “First, a reviewing court must consider the evidence presented at trial in the light most favorable to the prosecution.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.2010) (en banc). Second, “the reviewing court must determine whether this evidence, so viewed, is adequate to allow ‘any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.’ ” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Discussion “Section 1326 criminalizes three acts by aliens who have been deported: (1) entering the United States; (2) attempting to enter; or (3) being ‘found in’ the United States, all without permission of the Attorney General.” United States v. Hernandez, 189 F.3d 785, 789 (9th Cir.1999). Here, the indictment charged Gonzalez-Diaz only under the third theory — with being found in the United States, following deportations in 1999, 2003 and 2008. Gonzalez-Diaz concedes he was found by U.S. immigration authorities when they identified him and determined his unlawful status at the Piegan port of entry on June 20. See id. at 791 (“The offense of being found in the United States ends when an alien is discovered and identified by the immigration authorities.”). But he denies he was found in the United States, arguing that he was not present in the United States when he was found. He contends his presence in the United States since April 2009 ended when he departed the United States and entered Canada on June 19 and 20. He further contends that even though he was physically" }, { "docid": "23648496", "title": "", "text": "motion for judgment of acquittal under Federal Rule of Criminal Procedure 29(a) (“Rule 29 motion”). The district court denied each of these motions and proceeded with closing arguments before submitting the case to the jury. On appeal, these three Appellants, although not challenging whether a drug conspiracy existed, claim that the evidence presented at trial was insufficient for a jury to find them guilty of participating in it. These three Appellants thus request that we reverse their convictions and remand their cases to the district court for a new trial. We decline to do so. In this section, we consider whether the evidence discussed in the previous section, along with other evi dence, could have led a reasonable jury to find each of these three Appellants guilty beyond a reasonable doubt of the conspiracy charged. We conclude that a reasonable jury could find Appellants guilty beyond a reasonable doubt. 1. Standard/Scope of Review We review the denial of a Rule 29 motion for judgment of acquittal de novo. Troy, 583 F.3d at 24. In so doing, we examine the evidence, both direct and circumstantial, in the light most favorable to the jury’s verdict. We do not assess the credibility of a witness, as that is a role reserved for the jury. Nor need we be convinced that the government succeeded in eliminating every possible theory consistent with the defendant’s innocence. Rather, we must decide whether that evidence, including all plausible inferences drawn therefrom, would allow a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged crime. Id. (internal citations and quotation marks omitted). ‘We have described this standard of review as ‘formidable,’ and defendants challenging convictions for insufficiency of evidence face an uphill battle on appeal.” United States v. Lipscomb, 539 F.3d 32, 40 (1st Cir.2008) (internal citation, quotation marks, and brackets omitted). We have repeatedly emphasized, however, that, “despite the prosecution-friendly overtones of the standard of review, appellate oversight of sufficiency challenges is not an empty ritual.” United States v. de la Cruz-Paulino, 61 F.3d 986, 999 n. 11 (1st Cir.1995) (citation and quotation" }, { "docid": "23460948", "title": "", "text": "reliable as the applicable charging document, and that it accurately described the offense to which Tucker had pled guilty. The district court recognized that in calculating the sentencing guidelines, it was limited to admissible information including the plea agreement and the Information. However, it noted that “at the end of the day, as you are well aware, the Court can take into consideration other matters, including whether the defendant’s criminal history is underrepresented and I can take into consideration all of the defendant’s history, not just his conviction history.” The district court reviewed Tucker’s criminal history, as reflected in the PSR, and stated that a 96 months’ sentence met the purposes of sentencing. II. On appeal, Tucker raises five objections to his conviction and sentence: (1) there was insufficient evidence to demonstrate that he “possessed” the firearm, (2) the prosecutor committed misconduct during closing arguments, (3) the district court erred by refusing to give his proposed “mere presence” jury instruction, (4) the district court incorrectly calculated the sentencing guidelines, and (5) the sentence he received was substantively unreasonable. A. Knowing Possession of the Shotgun Where, as here, the defendant preserves his claim of insufficient evidence by making a motion under Federal Rule of Criminal Procedure 29 at the close of the evidence, we review de novo the sufficiency of the evidence supporting the conviction. United States v. Ruiz, 462 F.3d 1082, 1087-88 (9th Cir.2006). We “determine 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.’ ” United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir.2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (italics omitted)). Tucker was convicted under the federal felon in possession statute, which “makes it unlawful for a person ‘who has been convicted in any court of ... a crime punishable by imprisonment for a term exceeding one year’ to ‘possess in or affecting commerce, any firearm or ammunition’ which ‘has been shipped or transported" }, { "docid": "23460949", "title": "", "text": "was substantively unreasonable. A. Knowing Possession of the Shotgun Where, as here, the defendant preserves his claim of insufficient evidence by making a motion under Federal Rule of Criminal Procedure 29 at the close of the evidence, we review de novo the sufficiency of the evidence supporting the conviction. United States v. Ruiz, 462 F.3d 1082, 1087-88 (9th Cir.2006). We “determine 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.’ ” United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir.2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (italics omitted)). Tucker was convicted under the federal felon in possession statute, which “makes it unlawful for a person ‘who has been convicted in any court of ... a crime punishable by imprisonment for a term exceeding one year’ to ‘possess in or affecting commerce, any firearm or ammunition’ which ‘has been shipped or transported in interstate or foreign commerce.’ ” Id. (quoting 18 U.S.C. § 922(g)). To obtain a conviction, the government was required to prove: “(1) that the defendant was a convicted felon; (2) that the defendant was in knowing possession of a firearm [or ammunition]; and (3) that the firearm [or ammunition] was in or affecting interstate commerce.” Id. at 1164 (alterations in original) (quoting United States v. Beasley, 346 F.3d 930, 933-34 (9th Cir.2003)). Here, the only contested element of the federal felon in possession statute was the element of “knowing possession.” We previously have stated that “[t]o establish that a defendant acted ‘knowingly,’ the prosecution need not prove that the defendant knew that his possession of a firearm was unlawful; the prosecution need only prove that the defendant consciously possessed what he knew to be a firearm.” Nevils, 598 F.3d at 1163 (citing Beasley, 346 F.3d at 934). Tucker argues that the government did not prove that he knowingly possessed the shotgun because, at most, the evidence showed that he was in close proximity to" }, { "docid": "4267786", "title": "", "text": "in prison on Count 2 and 36 months on Count 3, with those terms to run concurrently, as well as three years of supervised release. Acosta-Sierra then filed a timely appeal. II. STANDARD OF REVIEW We review mixed questions of law and fact de novo. See United States v. Juvenile (RRA-A), 229 F.3d 737, 742 (9th Cir.2000). We also review de novo a district court’s denial of a motion for a judgment of acquittal based on insufficient evidence. United States v. Chapman, 528 F.3d 1215, 1218 (9th Cir.2008). In so doing, we must determine whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[W]hen faced with a record of historical facts that supports conflicting inferences ... [we] must presume — even if it does not affirmatively appear in the record — • that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.2010) (en banc) (internal quotation marks and citation omitted). Whether diminished capacity is a defense to a charged offense is reviewed de novo. United States v. Vela, 624 F.3d 1148, 1154 (9th Cir.2010). We review for abuse of discretion a district court’s decision to admit or exclude scientific evidence. United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002). III. ANALYSIS A. Count 2 Section 111 of 18 U.S.C. prohibits forcible assault on a federal officer “while engaged in or on account of the performance of official duties.” 18 U.S.C. § 111(a)(1). Because Section 111 does not define assault, we have adopted the common law definition of assault as either (1) “a willful attempt to inflict injury upon the person of another,” or (2) “a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Chapman, 528 F.3d" }, { "docid": "2327519", "title": "", "text": "court denied Bennett’s motion for judgment of acquittal as to all other counts. Bennett appeals only his convictions as to counts eight through ten, which charged him with bank fraud arising out of mortgages obtained from Equicredit on three different properties in Long Beach; Bennett does not contest his convictions or sentence on counts one through seven or count eleven. The sole issue raised on appeal is whether the government presented sufficient evidence from which any rational juror could find beyond a reasonable doubt that the “financial institution” element of the bank fraud statute was satisfied in circumstances where the fraudulently obtained mortgages were loaned by Equicredit, a wholly-owned subsidiary of a “financial institution.” II. JURISDICTION AND STANDARD OF REVIEW The district court exercised jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction over a final judgment pursuant to 28 U.S.C. § 1291. We review de novo a claim challenging the sufficiency of the evidence supporting an element of an offense. See United States v. Sullivan, 522 F.3d 967, 974 (9th Cir.2008). A claim of insufficient evidence fails if “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under Jackson, “[w]e begin by viewing the evidence produced at trial in the light most favorable to the prosecution.” United States v. Nevils, 598 F.3d 1158, 1169 (9th Cir.2010) (en banc). Then, “[mjoving to the second step of Jackson, we must consider whether the evidence, as construed above, is sufficient to allow any rational juror to conclude that the government has carried its burden of proof.” Id. III. DISCUSSION Enacted as part of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, Title II, § 1108(a), the federal bank fraud statute makes it a federal crime knowingly to execute, or attempt to execute, a scheme or artifice “(1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets," }, { "docid": "16305614", "title": "", "text": "Ms. Somsamouth. Antolik observed both of the Somsamouths bringing packages back and forth to each other in the kitchen, and then Ms. Somsamouth brought the finished order out. She also took Antolik’s payment for the meal and brought back his change. Soon after that, Antolik repeated the surveillance with a hidden camera, and observed similar behavior by the Somsamouths. Thereafter, the Somsamouths were indicted for making a false statement and for misrepresentation of material facts in violation of 42 U.S.C. § 1383a(a)(2). After a jury trial, both of the Somsamouths were found guilty of the offenses charged. They were each sentenced to five years of probation and each was ordered to pay restitution. These appeals followed. JURISDICTION AND STANDARDS OF REVIEW The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Our standard of review of a district court’s denial of a proposed jury instruction turns on the nature of the error alleged. United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir.2000). The “question whether the district court’s instructions adequately presented the defendant’s theory of the case” is reviewed de novo. Id. “If the district court’s instructions fairly and adequately covered the elements of the offense, however, we review the instruction’s precise formulation for an abuse of discretion.” Id. (internal quotation marks omitted). We review the denial of a defendant’s motion for acquittal under Federal Rule of Criminal Procedure 29 de novo. United States v. Gonzalez-Torres, 309 F.3d 594, 598 (9th Cir.2002). In so doing, we “ ‘review the evidence presented against the defendant in the light most favorable to the government to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Id. (citation omitted). While we review the district court’s denial of a motion to suppress evidence de novo, “[f]actual findings of the district court are reviewed for clear error.” United States v. Fernandez-Castillo, 324 F.3d 1114, 1117 (9th Cir.2003). We also review the district court’s factual findings in the sentencing" }, { "docid": "15081696", "title": "", "text": "entry, known as the Piegan, Montana port of entry on the United States side of the border. Gonzalez-Diaz was in some form of custody the entire time he was in Canada. At the Piegan port of entry, United States Customs and Border Protection agents ran Gonzalez-Diaz’s information through several records checks, which showed he was a native and citizen of Mexico and had been previously deported from the United States on four occasions. Agents also interviewed Gonzalez-Diaz, who admitted that he was a citizen of Mexico and was in the United States illegally. Gonzalez-Diaz was indicted on eight counts, including, as relevant here, one count of being found in the United States following deportation, in violation of 8 U.S.C. § 1326. The case was tried to a jury over two days. At the close of the government’s case, Gonzalez-Diaz moved for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, arguing that he was not “found in” the United States when he was apprehended at the border by U.S. immigration agents because he was entering the United States from Canada. The district court denied the motion, concluding that Gonzalez-Diaz was “found in” the United States because he had never been admitted into Canada. Gonzalez-Diaz was convicted on all counts, and now appeals. Standard op Review We review de novo the denial of a Rule 29 motion for acquittal. See United States v. Rocha, 598 F.3d 1144, 1153 (9th Cir.2010). The test to be applied is the same as for a challenge to the sufficiency of the evidence. See id. “First, a reviewing court must consider the evidence presented at trial in the light most favorable to the prosecution.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.2010) (en banc). Second, “the reviewing court must determine whether this evidence, so viewed, is adequate to allow ‘any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.’ ” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Discussion “Section 1326 criminalizes three acts by" }, { "docid": "19827567", "title": "", "text": "months. Clayton was sentenced to 21 months in prison, three years of supervised release, and ordered to pay $10,-800 in restitution and a $150 statutory assessment. II. At the close of the government’s case, Clayton moved for acquittal. He argued that the government did not produce evidence that his conduct had substantially affected interstate commerce. Additionally, he argued that there was no proof of an intent to defraud with respect to at least 15 of the illicit cellular phone ID numbers found in his possession. Defendant’s motions were denied. The trial judge refused Clayton’s request to incorporate his rejected theories into the jury instructions. From these rulings, Clayton appeals. A. The denial of a Rule 29 motion for acquittal is reviewed de novo. United States v. Bahena-Cardenas, 70 F.3d 1071, 1072 (9th Cir.1995). The test applied is the same as the test for challenging the sufficiency of the evidence. Id. Consequently, we review the evidence in a light most favorable to the prosecution to determine whether any rational trier of fact could find the essential elements of the offense beyond a reasonable doubt. United States v. Manarite, 44 F.3d 1407, 1411 (9th Cir.), cert denied, - U.S. -, 115 S.Ct. 2610, 132 L.Ed.2d 854 (1995). Jury instructions are reviewed de novo to see if they accurately state the elements of an offense. United States v. Tagalicud, 84 F.3d 1180, 1183 (9th Cir.1996). 18 U.S.C. § 1029(a) contains a jurisdictional element that requires the government to prove Clayton’s alleged criminal conduct affected interstate or foreign commerce. Accordingly, each of the counts of the indictment alleged that Clayton’s action, from possession to use, affected interstate commerce. Clayton argues that proof showing a mere “effect” on interstate commerce is legally insufficient to sustain his conviction in light of the Supreme Court’s decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). He reads Lopez to hold that the jurisdictional element of 18 U.S.C. § 1029(a) requires the government to prove a “substantial effect” on interstate commerce. We find this argument unpersuasive. In Lopez, the Court held that" }, { "docid": "4540222", "title": "", "text": "court ordered that any accrued child support payable to Dann while she is incarcerated be paid directly to Peña Canal. Dann filed a notice of appeal on April 22, 2010. On April 28, 2010, she filed a motion under Federal Rule of Criminal Procedure 35(a) to correct the sentence on the grounds that the district court erred when it ordered accrued child support to be paid to the victim. The district court denied this motion on July 22, 2010. United States v. Dann, No. 08-00390, 2010 WL 2891585 (N.D.Cal. July 22, 2010). Dann appeals her conviction and sentence. We address each in turn below. CONVICTION I. Standard of Review Dann argues on appeal that there was insufficient evidence to support her conviction for forced labor, document servitude, and harboring an illegal alien for financial gain. The Court reviews the district court’s denial of a motion for acquittal de novo. See, e.g., United States v. Carranza, 289 F.3d 634, 641 (9th Cir.2002). The Court asks whether, “[ajfter viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781. The analysis requires two steps: First, the court reviews the evidence presented at trial in the light most favorable to the prosecution; then, the court determines whether the evidence, so construed, would allow any rational trier of fact to find the defendant guilty of the crime beyond a reasonable doubt. See, e.g., United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.2010) (en banc). The Nevils court cautioned: This means that a court of appeals may not usurp the role of the finder of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial. Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution," }, { "docid": "22244750", "title": "", "text": "to be served concurrently. Applying the 2003 Guidelines, the district court’s sentencing calculation of the total offense level was based in part on (1) a two-level enhancement for “Abuse of Position of Trust or Use of Special Skill,” pursuant to § 3B1.3; and (2) a two-level enhancement for use of a “destructive device,” pursuant to § 2K2.1(3)(B). Uzenski now appeals. II. Uzenski challenges the sufficiency of the evidence underlying his convictions for Counts One, Two, Three, and Four for manufacturing and possessing an unregistered “firearm” in violation of several pro visions of the NFA. Specifically, Uzenski has raised a narrow issue as to whether the evidence at trial supported the jury’s conclusions that each of the two devices constituted a “destructive device,” which is encompassed within the definition of “firearm,” for the purposes of the NFA. For the reasons that follow, we find that the evidence sustains Uzenski’s convictions related to each device. A. We review de novo the district court’s denial of a motion for acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. United States v. Ryan-Webster, 353 F.3d 353, 359 (4th Cir.2003). In assessing the sufficiency of evidence, we must determine whether the jury verdict is sustained by “substantial evidence, taking the view most favorable to the Government.” United States v. Pierce, 409 F.3d 228, 231 (4th Cir.2005) (quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942)). This inquiry rests on whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Lomax, 293 F.3d 701, 705 (4th Cir.), cert. denied, 537 U.S. 1031, 123 S.Ct. 555, 154 L.Ed.2d 448 (2002) (internal quotations and citations omitted); United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc) (“[Substantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.”) Credibility determinations fall within the sole province of the jury, to the extent that we “assume the jury resolved all" } ]

[ { "docid": "23682226", "title": "", "text": "(1983). Even if the jury’s verdict was based on sharply conflicting evidence and the court of appeals determines that reasonable persons might reach a contrary result, the jury verdict must be upheld. Slavin v. Curry, 690 F.2d 446, 449 (5th Cir.1982); United States v. 6,162.78 Acres of Land, 680 F.2d 396, 398 (5th Cir.1982). Our task, therefore, is limited to determining whether the jury had before it any competent and substantial evidence that fairly supports the verdict. Stewart v. Thigpen, 730 F.2d 1002, 1007 (5th Cir.1984). To prevail on its trademark infringement and unfair competition claims, CPI needed to demonstrate that Conans’ use of the CONAN THE BARBARIAN mark and image was likely to create confusion in the mind of the ordinary consumer as to the source, affiliation, or sponsorship of Co-nans’ service and product. See, e.g., Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 258 (5th Cir.) (likelihood of confusion test applies to common law unfair competition claims as well as to claims under 15 U.S.C. §§ 1114(1), 1125(a)), cert. denied, 449 U.S. 899, 101 S.Ct. 268, 66 L.Ed.2d 129 (1980). A nonexhaustive list of factors to be considered in determining whether a likelihood of confusion exists includes: (1) the type of trademark alleged to have been infringed, (2) the similarity of design between the two marks, (3) similarity of the products or services, (4) the identity of the retail outlets and purchasers, (5) the identity of the advertising medium utilized, (6) the defendant’s intent, and (7) evidence of actual confusion. Armco, Inc. v. Armco Burglar Alarms Co., 693 F.2d 1155, 1159 (5th Cir.1983). The absence or presence of any one factor ordinarily is not dispositive; indeed, a finding of likelihood of confusion need not be supported by even a majority of the seven factors. Id. at 1159. We conclude that CPI presented sufficient evidence related to these seven factors to permit the jury to find that Co-nans’ conduct created a likelihood of confusion as to the source, sponsorship, or affiliation of its service and product. The evidence adduced at trial revealed that Conans was aware of the" } ]

[ { "docid": "13784917", "title": "", "text": "between the parties was actionable). Furthermore, courts may com sider evidence showing that consumers assumed the owner of a mark gave “permission” to the alleged infringer to use the mark. Anheuser-Busch, Inc. v. Balducci Publications, 28 F.3d 769, 772, 775 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 903, 130 L.Ed.2d 787 (1995) (treating false assumption of permission as evidence of actual confusion, and as synonymous with a false assumption of the statutory term “approval” in Section 43(a)); University of Georgia v. Laite, 756 F.2d 1535, 1546 (11th Cir.1985) (holding that 10-15 people who falsely assumed that defendant had permission to use plaintiffs mark was “persuasive” evidence of actual confusion). Thus, the relevant inquiry in this case is whether Tour 18’s use of plaintiffs’ service marks is likely to cause consumers to believe that the parties or their services are affiliated in some manner or that plaintiffs sponsored or otherwise gave permission to Tour 18 to copy their golf holes or use their service marks. In determining whether there is a likelihood of confusion, the Court may consider a number of factors including: (1) the type or strength of plaintiffs mark; (2) the degree of similarity between plaintiffs and defendant’s marks; (3) the similarity between plaintiffs and defendant’s goods or services; (4) the identity of plaintiffs and defendant’s customers; (5) the similarity of plaintiffs and defendants’ advertising; (6) the defendant’s intent; (7) the existence of actual confusion. Taco Cabana Int’l v. Two Pesos, Inc., 932 F.2d 1113, 1122 (5th Cir.1991), aff'd, 505 U.S. 763, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992); Roto-Rooter Corp. v. O’Neal, 513 F.2d 44, 45 (5th Cir.1975). It is not necessary for a plaintiff to show that all or even a majority of the factors are present. Armco, Inc. v. Armco Burglar Alarm Co., 693 F.2d 1155, 1159-60 (5th Cir.1982). (a) Strength of plaintiffs’ service marks In determining the scope of protection to be given to plaintiffs’ marks, the Court must consider the strength and distinctiveness of the marks. “Strong marks are widely protected, as contrasted to weak ones.” Amstar Corp., 615 F.2d at 259" }, { "docid": "509815", "title": "", "text": "generic marks refer to the “genus of which the particular product is a species” and are neither registerable as trademarks nor protectable under Section 43(a). Sugar Busters, 177 F.3d at 268. Descriptive marks describe a characteristic or quality of the product or service and are only protected when they acquire secondary meaning. See id. at 268. Secondary meaning exists when “in the minds of the public, the primary significance of a product feature or term is to identify the source of the product rather than the product itself.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 766 & n. 4, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). Once the plaintiffs trademark is deemed protectable, liability for infringement “hinges upon whether a likelihood of confusion exists in the minds of potential consumers as to the source, affiliation, or sponsorship of the defendant’s product or service due to the use of the allegedly infringing marks....” Id. at 537. The Fifth Circuit treats likelihood of confusion as a question of fact, subject to the clearly erroneous standard of review. See Marathon Mfg. Co. v. Enerlite Products Corp., 767 F.2d 214, 217 (5th Cir.1985). Likelihood of confusion refers not only to confusion as to the source of goods or services, but also to confusion as to sponsorship or affiliation. See Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658, 663 (5th Cir.2000). A determination of likelihood of confusion turns on the analysis of seven factors: (1) the type of mark; (2) the similarity of the two marks; (3) the similarity of the goods or services; (4). the identity of customers and similarity of retail outlets; (5) the similarity of advertising; (6) the intent of the alleged infinger; and (7) evidence of actual confusion, if any exists. See Pebble Beach, 155 F.3d at 543. “No single factor is dispositive, and a finding of a likelihood of confusion does not require a positive finding on a majority of these ‘digits of confusion.’ ” Id. at 543. A court is free to consider other relevant factors in assessing likelihood of confusion. See Westchester Media," }, { "docid": "23628149", "title": "", "text": "of plaintiff and defendants because of the defendants’ use of trademarks and an emblem confusingly similar to those of the plaintiff.” Plaintiff sued for false designation of origin pursuant to the Lanham Trademark Act, 15 U.S.C. § 1125(a) and for unfair competition pursuant to La. Rev.Stat.Ann. § 51:1401, et seq. Likelihood of confusion is the essential ingredient for claims of unfair competition under both the Lanham Act and the Louisiana statute. Falcon Rice Mill v. Community Rice Mill, 725 F.2d 336 (5th Cir.1984). This finding of fact may be reversed only if clearly erroneous. Falcon Rice Mill, 725 F.2d 336; Chevron Chemical Co. v. Voluntary Purchasing Groups, Inc., 659 F.2d 695 (5th Cir.1981), cert. denied, 457 U.S. 1126, 102 S.Ct. 2947, 73 L.Ed.2d 1342 (1982). This court has enumerated seven factors to be considered in determining likelihood of confusion: (1) type of trademark; (2) similarity of design; (3) similarity of product; (4) identity of retail outlets and purchasers; (5) identity of advertising media utilized; (6) defendant’s intent; and (7) actual confusion. Armco, Inc. v. Armco Burglar Alarm Co., Inc., 693 F.2d 1155, 1159 (5th Cir.1982). A finding of likelihood of confusion need not be supported by a majority of these factors. Id. The first factor to consider is the type of mark used by the Plaintiff. “The purpose of a trademark is to enable consumers to distinguish between similar goods or services supplied from different sources.” Chevron Chemical Co. v. Voluntary Purchasing Groups, 659 F.2d 695, 702 (5th Cir.1981). A fictitious, arbitrary, or fanciful mark, such as “Kodak,” is a strong mark that is patently distinctive to consumers. It bears no relationship to the products or services to which it applies, but it readily identifies the producer. Id. at 702. Consequently, it is legally protectable without needing to show that the mark has acquired a secondary meaning to the consuming public. Zatarains, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786 (5th Cir.1983); Chevron, 659 F.2d 695. A descriptive mark identifies a characteristic about the product or service. Zatarains, 698 F.2d 786. “Alo” is a descriptive mark with reference to" }, { "docid": "15064592", "title": "", "text": "to 1962, § 1114(1) provided that the use of the mark must be ‘likely to cause confusion, or to cause mistake, or to deceive purchasers as to the source or origin of such goods or services.’ (emphasis added). In 1962, it was amended to delete the underlined portion. Although this amendment ‘clearly broadened the protection afforded by the statute,’ it is equally clear that this amendment did not delete the confusion requirement entirely, and that a claimant must still prove a likelihood of confusion, mistake or deceit of ‘typical’ purchasers, or potential purchasers, as to the connection of the trademark owner with' the infringing product. Supreme Assembly, Order of Rainbow for Girls v. J.H. Ray Jewelry Co., 676 F.2d 1079, 1082 n. 3 (5th Cir.1982) (citations omitted). “Likelihood of confusion” is thus the central issue in any suit for trademark infringement, as it is in suits for unfair competition. Fuji contends that the trial court used the wrong legal standard to determine likelihood of confusion. We are convinced by our review of the record that this point is well taken. The trial court correctly identified the factors to be considered in determining likelihood of confusion: (a) type of trademark, that is, the strength of the prior owner’s mark; (b) degree of similarity between the two marks; (c) similarity between the two products; (d) identity of retail outlets and purchasers; (e) identity of advertising media utilized; (f) defendant’s intent; (g) actual confusion. Armco, Inc. v. Armco Burglar Alarm, Inc., 693 F.2d 1155, 1159 (5th Cir.1982). The court then, however, apparently cast aside these factors, holding for defendants because “there is no likelihood of confusion between the Plaintiff’s products and Shinohara’s printing presses.” It is obviously true that no one is likely to confuse a printing press with the equipment used in its operation. It is also irrelevant except as bearing on the third factor to be considered, similarity of products. The “most decisive factor” to the trial court was one that did not appear on the list, the sophistication of the buyers of Shinohara’s presses, and the high cost of these" }, { "docid": "21285739", "title": "", "text": "plaintiffs service mark or trade dress, (3) the similarity bétween the parties’ service marks or trade dress, (4) the identity of the advertising media used, (5) the defendant’s intent, (6) the identity of customers and retail outlets, and (7) evidence of actual confusion. See Elvis Presley Enters., Inc., 141 F.3d at 194; Sunbeam Prods., Inc. v. West Bend Co., 123 F.3d 246, 257 (5th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1795, 140 L.Ed.2d 936 (1998); Society of Fin. Exam’rs, 41 F.3d at 228 n. 10; Taco Cabana Int’l, Inc., 932 F.2d at 1122 n. 9; Allied Mktg. Group, Inc., 878 F.2d at 813; Blue Bell Bio-Med. v. Cin-Bad, Inc., 864 F.2d 1253, 1260 (5th Cir.1989); Oreck Corp. v. U.S. Floor Sys., Inc., 803 F.2d 166, 170 (5th Cir.1986); Sno-Wizard Mfg., Inc., 791 F.2d at 428; Marathon Mfg. Co., 767 F.2d at 217; Fuji Photo Film Co., 754 F.2d at 595; Conan Properties, Inc., 752 F.2d at 149; Sicilia Di R. Biebow & Co., 732 F.2d at 430; Armco, Inc. v. Armco Burglar Alarm Co., 693 F.2d 1155, 1159 (5th Cir.1982); Chevron Chem. Co., 659 F.2d at 703; Sun-Fun Prods., Inc. v. Suntan Research & Dev. Inc., 656 F.2d 186, 189 (5th Cir. Unit B Sept.1981); Sun Banks, Inc., 651 F.2d at 314; Exxon Corp. v. Texas Motor Exch., Inc., 628 F.2d 500, 504 (5th Cir.1980); Soweco, Inc., 617 F.2d at 1185; Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 259 (5th Cir.1980). In addition to the seven digits listed above, courts have considered several additional factors in the confusion analysis, including: (8) the degree of care exercised by typical purchasers of the product or service, (9) whether the product or service is inexpensive or likely to be purchased on impulse, (10) any previous relationship between the parties, (11) lack of present competition between the parties, (12) the likelihood that one party will expand its product line or services to compete with the other, (13) the notoriety of the plaintiffs service marks or trade dress, and (14) whether the plaintiff is a diversified company. The factfinder must weigh" }, { "docid": "8987401", "title": "", "text": "here. B. Likelihood of confusion Once a plaintiff shows ownership in a protectible trademark, he must next show that the defendant’s use of the mark “creates a likelihood of confusion in the minds of potential customers as to the ‘source, affiliation, or sponsorship’ ” of the product at issue. Westchester Media v. PRL USA Holdings, Inc. “Likelihood of confusion is synonymous with a probability of confusion, which is more than a mere possibility of confusion.” When assessing the likelihood of confusion, we consider a nonexhaustive list of so-called “digits of confusion,” including: “(1) the type of mark allegedly infringed, (2) the similarity between the two marks, (3) the similarity of the products or services, (4) the identity of the retail outlets and purchasers, (5) the identity of the advertising media used, (6) the defendant’s intent, and (7) any evidence of actual confusion.” Courts also consider (8) the degree of care exercised by potential purchasers. No single factor is dispositive, and a finding of a likelihood of confusion need not be supported by a majority of the factors. Smack argues that there were genuine issues of material fact whether its t-shirt designs were likely to cause confusion among consumers. We disagree. The first digit, the type of mark, refers to the strength of the mark. Generally, the stronger the mark, the greater the likelihood that consumers will be confused by competing uses of the mark. We agree with the district court that the plaintiffs’ marks, which have been used for over one hundred years, are strong. As noted above, Smack concedes that the Universities’ color schemes are well-known and are used to identify the plaintiff Universities. It argues, however, that the district court disregarded evidence of third-party use of the Universities’ team colors in a non-trademark manner, and it cites Sun Banks of Florida, Inc. v. Sun Federal Savings and Loan Association in support of its argument. In Sun Banks, we held that “extensive” third-party use can weaken a mark and negate a likelihood of confusion. In that case there were “over 4400 businesses” in Florida that were using the word" }, { "docid": "21285738", "title": "", "text": "Mktg. Group, Inc., 878 F.2d at 813; Sno-Wizard Mfg., Inc., 791 F.2d at 425. NeoDyme does not challenge .the protectability of CIC’s service marks and trade dress; instead, NeoDyme focuses on the likelihood of confusion. Under this inquiry CIC must show that NeoDyme’s service marks and. trade dress were likely to produce confusion in customers’ minds as to the source, affiliation, or sponsorship of NeoDyme’s services. See Elvis Presley Enters., Inc. v. Capece, 141 F.3d 188, 193 (5th Cir.1998); Society of Fin. Exam’rs v. National Ass’n of Certified Fraud Exam’rs Inc., 41 F.3d 223, 227 (5th Cir.1995); Conan Properties, Inc. v. Conans Pizza, Inc., 752 F.2d 145, 149 (5th Cir.1985); Falcon Rice Mill, Inc. v. Community Rice Mill, Inc., 725 F.2d 336, 343 (5th Cir.1984); see also Fuji Photo Film Co. v. Shinohara Shoji Kabushiki Kaisha, 754 F.2d 591, 596 (5th Cir.1985). Likelihood of confusion is a function of seven factors, known in the Fifth Circuit as the digits of confusion: (1) the similarity between the parties’ products or services, (2) the strength of the plaintiffs service mark or trade dress, (3) the similarity bétween the parties’ service marks or trade dress, (4) the identity of the advertising media used, (5) the defendant’s intent, (6) the identity of customers and retail outlets, and (7) evidence of actual confusion. See Elvis Presley Enters., Inc., 141 F.3d at 194; Sunbeam Prods., Inc. v. West Bend Co., 123 F.3d 246, 257 (5th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1795, 140 L.Ed.2d 936 (1998); Society of Fin. Exam’rs, 41 F.3d at 228 n. 10; Taco Cabana Int’l, Inc., 932 F.2d at 1122 n. 9; Allied Mktg. Group, Inc., 878 F.2d at 813; Blue Bell Bio-Med. v. Cin-Bad, Inc., 864 F.2d 1253, 1260 (5th Cir.1989); Oreck Corp. v. U.S. Floor Sys., Inc., 803 F.2d 166, 170 (5th Cir.1986); Sno-Wizard Mfg., Inc., 791 F.2d at 428; Marathon Mfg. Co., 767 F.2d at 217; Fuji Photo Film Co., 754 F.2d at 595; Conan Properties, Inc., 752 F.2d at 149; Sicilia Di R. Biebow & Co., 732 F.2d at 430; Armco, Inc. v. Armco Burglar Alarm" }, { "docid": "1588836", "title": "", "text": "and the mere overlap of product lines. The district court found a consent-to-use, and not a naked license, as the proper categorization of the relationship between Moore and Compu-Rite Corporation. This finding is adequately supported by the record and is not clearly erroneous. Ryu has not carried its burden of proof that a naked license existed. 2. Likelihood of Confusion Likelihood of confusion is also a finding of fact reviewable under the clearly erroneous standard. Marathon Mfg. Co. v. Enerlite Products Corp., 767 F.2d 214 (5th Cir.1985). We have enumerated several specific factors to be considered when de termining likelihood of confusion: the type of trademark at issue, that is, the strength of the trademark; degree of similarity between the two marks; similarity of products; identity of retail outlets and purchasers; identity of advertising media utilized; defendant’s intent; and actual confusion. Roto-Rooter Corp. v. O’Neal, 513 F.2d 44 (5th Cir.1975); Fuji Photo Film Co. v. Shinohara Shoji Kabushiki Kaisha, 754 F.2d 591 (5th Cir.1985). The district court carefully applied the Roto-Rooter factors seriatim, detailing the relevant evidence. Ryu insists that in doing so the district court erred. Our review of the record compels the conclusion that the trial court’s finding of the likelihood of confusion is not clearly erroneous. In affirming this finding we are mindful of the premise that “none of these factors by itself is dispositive of the likelihood-of-confusion question, and different factors will weigh more heavily from case to case depending on the particular facts and circumstances involved.” Marathon Mfg., 767 F.2d at 218. a. Type of Trademark Moore’s trademark is sufficiently strong, particularly among potential customers of the parties’ goods and services. Compurite is a suggestive mark that has been in use now for nearly 20 years. Sun Banks of Fla., Inc. v. Sun Fed. Sav. & Loan Ass’n, 651 F.2d 311 (5th Cir.1981) (suggestive marks which subtly connote something about the service or product are protected without proof of secondary meaning). The trademark has been advertised nationally through a variety of media. The single instance of third-party use in California does not detract from the" }, { "docid": "21285740", "title": "", "text": "Co., 693 F.2d 1155, 1159 (5th Cir.1982); Chevron Chem. Co., 659 F.2d at 703; Sun-Fun Prods., Inc. v. Suntan Research & Dev. Inc., 656 F.2d 186, 189 (5th Cir. Unit B Sept.1981); Sun Banks, Inc., 651 F.2d at 314; Exxon Corp. v. Texas Motor Exch., Inc., 628 F.2d 500, 504 (5th Cir.1980); Soweco, Inc., 617 F.2d at 1185; Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 259 (5th Cir.1980). In addition to the seven digits listed above, courts have considered several additional factors in the confusion analysis, including: (8) the degree of care exercised by typical purchasers of the product or service, (9) whether the product or service is inexpensive or likely to be purchased on impulse, (10) any previous relationship between the parties, (11) lack of present competition between the parties, (12) the likelihood that one party will expand its product line or services to compete with the other, (13) the notoriety of the plaintiffs service marks or trade dress, and (14) whether the plaintiff is a diversified company. The factfinder must weigh the digits of confusion and any relevant additional factors to determine whether the facts balance in favor of infringement. Plaintiffs need not produce evidence on all or even a majority of the seven digits. See Society of Fin. Exam’rs, 41 F.3d at 228 n. 15. The weight and persuasiveness of each factor varies from case to case. See Marathon Mfg. Co., 767 F.2d at 218; Falcon Rice Mill, Inc., 725 F.2d at 345 n. 9. The digits need not add up to a particular sum. See Kentucky Fried Chicken Corp., 549 F.2d at 385. Indeed, “[n]o one factor is dispositive, and a finding of a likelihood of confusion does not even require a positive finding on a majority of these ‘digits of confusion.’” Elvis Presley Enters., Inc., 141 F.3d at 194; accord Sunbeam Prods., Inc., 123 F.3d at 257; Taco Cabana Int’l, Inc., 932 F.2d at 1122 n. 9; Marathon Mfg. Co., 767 F.2d at 218; Conan Properties, Inc., 752 F.2d at 150; Louisiana World Exposition, Inc. v. Logue, 746 F.2d 1033, 1040 (5th Cir.1984);" }, { "docid": "1515484", "title": "", "text": "F.2d at 430 (likelihood of confusion reviewed under clearly erroneous standard). In determining likelihood of confusion, we focus on “whether the defendant is passing off his goods ... as those of the plaintiff by virtue of the substantial similarity between the two, leading to confusion on the part of potential customers.” Chevron, 659 F.2d at 703. We look to a variety of factors, including, but not limited to: similarity of products, identity of retail outlets and purchasers, identity of advertising media, type (i.e., strength) of trademark or trade dress, defendant’s intent, similarity of design, and actual confusion. See Falcon Rice Mill, Inc. v. Community Rice Mill, Inc., 725 F.2d 336, 345 (5th Cir.1984). In addition, “[i]t is often appropriate to consider the degree of care exercised by purchasers: confusion is more likely, for example, if the products in question are ‘impulse’ items or are inexpensive.” Id. at 345 n. 9. The district court stated the test correctly and found that although the design and the configuration of the machines were identical except for the identifying language on the door, other factors negated any likelihood of confusion. We agree. As noted above, we have in the past indicated the importance of a finding that a defendant intended to pass off its goods as that of another in establishing likelihood of confusion: “[I]f the mark was adopted with the intent of deriving benefit from the reputation of [the plaintiff], that fact alone may be sufficient to justify the inference that there is confusing similarity.” Chevron, 659 F.2d at 704 (quoting Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 263 (5th Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 268, 66 L.Ed.2d 129 (1980)). Sno-Wizard argues that the district court should have inferred Eisemann’s intent and thus further inferred a likelihood of confusion from the very fact of conscious copying. “[IJntent to deceive or to profit from confusion may be inferred from the acts of an infringer.” Falcon Rice Mill, 725 F.2d at 346. In Chevron, “because we [could] think of no other plausible explanation for such behavior,” 659 F.2d at 704," }, { "docid": "1047917", "title": "", "text": "Ill The test for determining likelihood of confusion in a trademark case is well established. In this circuit, likelihood of confusion is determined by evaluating a variety of factors including the type of trademark at issue; similarity of design; similarity of product; identity of retail outlets and purchasers; identity of advertising media utilized; defendant’s intent; and actual confusion. Amstar, 615 F.2d at 259; Roto-Rooter Corp. v. O’Neal, 513 F.2d 44, 45 (5th Cir.1975). None of these factors by itself is dispositive of the likelihood of confusion question, and different factors will weigh more heavily from case to case depending on the particular facts and circumstances involved. See, e.g., Armco, Inc. v. Armco Burglar Alarm Co., Inc., 693 F.2d 1155, 1160 (5th Cir.1982) (these seven factors are not the only ones properly considered); Frostie Co. v. Dr. Pepper Co., 341 F.2d 363, 367 (5th Cir.1965) (all relevant evidence should be considered). Essentially, Enerlite alleges the district court made three errors in concluding its MARATHON 10 mark was likely to cause confusion. First, in determining the similarity of design, the court erroneously focused on the similarity between the words “MARATHON” and “MARATHON 10”, rather than the overall dissimilarity between the composite marks or corporate logos used by each company. Second, in assessing the identity of retail outlets and purchasers, the court failed to recognize that the markets for each product are so different that customer confusion would be impossible. Third; the record shows no confusion on the part of actual Marathon customers. Enerlite raises additional points which are either incorporated within the discussion of the above issues or are irrelevant to the central question of whether the district court’s finding of likelihood of confusion was clearly erroneous. Because Enerlite has not complained of findings relative to the other factors pertinent to likelihood of confusion as listed above, we do not address those factors. A. Enerlite alleges the district court incorrectly focused on the word “Marathon”, rather than the composite marks or corporate logos used by each company. Marathon owns two federal trademark registrations for use on nickel cadmium batteries. One of the" }, { "docid": "13784918", "title": "", "text": "the Court may consider a number of factors including: (1) the type or strength of plaintiffs mark; (2) the degree of similarity between plaintiffs and defendant’s marks; (3) the similarity between plaintiffs and defendant’s goods or services; (4) the identity of plaintiffs and defendant’s customers; (5) the similarity of plaintiffs and defendants’ advertising; (6) the defendant’s intent; (7) the existence of actual confusion. Taco Cabana Int’l v. Two Pesos, Inc., 932 F.2d 1113, 1122 (5th Cir.1991), aff'd, 505 U.S. 763, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992); Roto-Rooter Corp. v. O’Neal, 513 F.2d 44, 45 (5th Cir.1975). It is not necessary for a plaintiff to show that all or even a majority of the factors are present. Armco, Inc. v. Armco Burglar Alarm Co., 693 F.2d 1155, 1159-60 (5th Cir.1982). (a) Strength of plaintiffs’ service marks In determining the scope of protection to be given to plaintiffs’ marks, the Court must consider the strength and distinctiveness of the marks. “Strong marks are widely protected, as contrasted to weak ones.” Amstar Corp., 615 F.2d at 259 (citations omitted). The strength of a service mark for the purposes of analyzing likelihood of confusion is dependent upon both the placement of the mark on the spectrum of distinctiveness, from arbitrary to generic, and the extent to which consumers in the relevant marketplace recognize the mark as an indicator of source. See Sun Banks of Florida, Inc. v. Sun Federal Sav. & Loan Assoc., 651 F.2d 311, 315-16 (5th Cir.1981). Also relevant to a mark’s strength is the extent to which third parties use identical or substantially similar marks in the marketplace. Id. Amstar Corp., 615 F.2d at 259. Plaintiffs argue that their service marks are arbitrary and therefore strong and entitled to the broadest scope of protection. Tour 18 contends that plaintiffs’ service marks are geographically descriptive and therefore weak. Additionally, Tour 18 points to various third party uses of plaintiffs’ marks in arguing that Court should narrowly construe the scope of protection accorded plaintiffs’ marks. Tour 18’s argument regarding the deserip-tiveness of plaintiffs’ marks is without merit. The Court determined above that" }, { "docid": "509816", "title": "", "text": "standard of review. See Marathon Mfg. Co. v. Enerlite Products Corp., 767 F.2d 214, 217 (5th Cir.1985). Likelihood of confusion refers not only to confusion as to the source of goods or services, but also to confusion as to sponsorship or affiliation. See Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658, 663 (5th Cir.2000). A determination of likelihood of confusion turns on the analysis of seven factors: (1) the type of mark; (2) the similarity of the two marks; (3) the similarity of the goods or services; (4). the identity of customers and similarity of retail outlets; (5) the similarity of advertising; (6) the intent of the alleged infinger; and (7) evidence of actual confusion, if any exists. See Pebble Beach, 155 F.3d at 543. “No single factor is dispositive, and a finding of a likelihood of confusion does not require a positive finding on a majority of these ‘digits of confusion.’ ” Id. at 543. A court is free to consider other relevant factors in assessing likelihood of confusion. See Westchester Media, 214 F.3d at 664. Section 35 of the Lanham Act allows a successful plaintiff to recover an infringer’s profits, as well as damages, costs, and attorney fees. See 15 U.S.C. § 1117 (1994). The federal appellate courts that have addressed the issue uniformly apply the section 35 remedies to violations of sections 32 and 43(a). See Taco Cabana Int’l, Inc. v. Two Pesos, Inc., 932 F.2d 1113, 1126 (5th Cir.1991), aff'd, 505 U.S. 763, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). “The purpose of [section 35] is to take all the economic incentive out of trademark infringement.” Rolex Watch USA, Inc. v. Meece, 158 F.3d 816, 824 (5th Cir.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1808, 143 L.Ed.2d 1011 (1999) (quoting Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 621 (9th Cir.1993)). The Lanham Act, like the Copyright Act, provides for statutory damages under certain circumstances. See 15 U.S.C. § 1117(c) (1994). Section 1117(c) provides: In a case involving the use of a counterfeit mark (as defined in section 1116(d) of this title)" }, { "docid": "1154888", "title": "", "text": "and so overwhelmingly in favor of one party that reasonable persons could not arrive at a contrary verdict.” Conan Properties, Inc. v. Conans Pizza, Inc., 752 F.2d 145, 149 (5th Cir.1985). In other words, we must determine “whether the jury had before it any competent and substantial evidence that fairly supports the verdict.” Id. To prove its claim of trademark infringement, Oreck was required to show that U.S. Floor’s use of the XL mark was likely to create confusion in the minds of potential buyers as to the source, affiliation, or sponsorship of the parties’ products. 15 U.S.C. § 1114(1), Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 258 (5th Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 268, 66 L.Ed.2d 129 (1980). The question of likelihood of confusion is decided by considering a variety of factors including: (1) strength of the plaintiff’s mark; (2) similarity of design between the marks; (3) similarity of the products; (4) identity of retail outlets and purchasers; (5) similarity of advertising media used; (6) the defendant’s intent; (7) actual confusion; and (8) degree of care exercised by potential purchasers. Fuji Photo Film Co. v. Shinohara Shoji Kabushiki Kaisha, 754 F.2d 591 (5th Cir.1985); Sun-Fun Products v. Suntan Research & Development, 656 F.2d 186 (5th Cir.1981). We consider each of these factors in turn and conclude that U.S. Floor’s limited use of XL presented no likelihood of confusion. 1. Strength of Oreck’s Mark. The XL mark has several characteristics that weigh against affording it broad trademark protection. First, it is widely used on a variety of commercial goods, including cameras, computers, automobiles, audiotapes and chainsaws. This dilutes the strength of the mark and entitles it to a narrower range of protection. As this court observed in Exxon Corp. v. Texas Motor Exchange, 628 F.2d 500 (5th Cir. 1980), “The greater the number of identical or more or less similar trade-marks already in use on different kinds of goods, the less is the likelihood of confusion.” Id. at 504 (quoting Restatement of Torts § 729, comment g (1938)); see also Amstar Corp. v. Domino’s Pizza," }, { "docid": "17784353", "title": "", "text": "summary judgment record, reflects consistent and longstanding references to the Cowboys as “America’s Team” — even when the author is attempting to apply the label to another franchise. Finally, Defendant’s intent in copying the trade dress is particularly damaging. Defendant has attempted to capitalize on the Cowboys’ fame, even seeking to auction “one of this country’s most recognizable trademarks.” Thus, the Court finds the Cowboys’ “America’s Team” trademark is protectable. C. Digits of Confusion Likelihood of confusion is the central evidentiary test for infringement under the Lanham Act and unfair competition under Texas common law. See Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658, 663 n. 1 (5th Cir.2000); Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 258-59 (5th Cir.1980). The likelihood-of-confusion test requires a plaintiff to show that a defendant’s use of its mark “creates a likelihood of confusion in the minds of potential consumers as to the ‘source, affiliation, or sponsorship’ ” of that defendant’s services. Westchester Media, 214 F.3d at 663 (citations omitted). “Likelihood of confusion is synonymous with a probability of confusion, which is more than a mere possibility of confusion.” Id. at 663-64. To determine whether a use can result in consumer confusion, the Fifth Circuit considers the “a long list of nonexclusive, non-dispositive factors” known as the “digits of confusion.” Lyons Partnership v. Giannoulas, 179 F.3d 384, 388 (5th Cir.1999). These factors include (1) the type of trademark allegedly infringed, (2) the similarity between the two marks, (3) the similarity of the products or services, (4) the identity of the retail outlets and purchasers, (5) the identity of the advertising media used, (6) the defendant’s intent, and (7) any evidence of actual confusion. Elvis Presley Enters. v. Capece, 141 F.3d 188, 194 (5th Cir.1998). These digits of confusion “do not apply mechanically to every case and can serve only as guides, not as an exact calculus.” Scott Fetzer Co. v. House of Vacuums Inc., 381 F.3d 477, 484-85 (5th Cir.2004). A court should “consider the application of each digit in light of the specific circumstances of the case,” id., and “different" }, { "docid": "1047916", "title": "", "text": "oral argument before the district judge. Despite the label: summary judgment, all parties fully agree that the district court reached a conclusion by making a single finding of fact as to likelihood of confusion based on underlying facts which were either not substantially in dispute or left to the district court to decide from the voluminous record on submission. Because all parties agreed to this procedure, we will look to the substance of the matter and not merely its label. ‘ A trial procedure which accomplishes what the parties and court intend does not become erroneous merely because it is misnamed. Such error can be, and is here, harmless. Fed.R.Civ.P. 61. Our review on appeal then consists of deciding whether the factual finding of likelihood of confusion was clearly erroneous under Fed.R.Civ.P. 52(a). Armstrong Cork Co. v. World Carpets, Inc., 597 F.2d 496, 501 (5th Cir.1979); Holiday Inns, Inc. v. Holiday Out in America, 481 F.2d 445, 447 (5th Cir.1973). We find it is not. Rather, ample evidence supports the finding of the district judge. Ill The test for determining likelihood of confusion in a trademark case is well established. In this circuit, likelihood of confusion is determined by evaluating a variety of factors including the type of trademark at issue; similarity of design; similarity of product; identity of retail outlets and purchasers; identity of advertising media utilized; defendant’s intent; and actual confusion. Amstar, 615 F.2d at 259; Roto-Rooter Corp. v. O’Neal, 513 F.2d 44, 45 (5th Cir.1975). None of these factors by itself is dispositive of the likelihood of confusion question, and different factors will weigh more heavily from case to case depending on the particular facts and circumstances involved. See, e.g., Armco, Inc. v. Armco Burglar Alarm Co., Inc., 693 F.2d 1155, 1160 (5th Cir.1982) (these seven factors are not the only ones properly considered); Frostie Co. v. Dr. Pepper Co., 341 F.2d 363, 367 (5th Cir.1965) (all relevant evidence should be considered). Essentially, Enerlite alleges the district court made three errors in concluding its MARATHON 10 mark was likely to cause confusion. First, in determining the similarity" }, { "docid": "17784354", "title": "", "text": "a probability of confusion, which is more than a mere possibility of confusion.” Id. at 663-64. To determine whether a use can result in consumer confusion, the Fifth Circuit considers the “a long list of nonexclusive, non-dispositive factors” known as the “digits of confusion.” Lyons Partnership v. Giannoulas, 179 F.3d 384, 388 (5th Cir.1999). These factors include (1) the type of trademark allegedly infringed, (2) the similarity between the two marks, (3) the similarity of the products or services, (4) the identity of the retail outlets and purchasers, (5) the identity of the advertising media used, (6) the defendant’s intent, and (7) any evidence of actual confusion. Elvis Presley Enters. v. Capece, 141 F.3d 188, 194 (5th Cir.1998). These digits of confusion “do not apply mechanically to every case and can serve only as guides, not as an exact calculus.” Scott Fetzer Co. v. House of Vacuums Inc., 381 F.3d 477, 484-85 (5th Cir.2004). A court should “consider the application of each digit in light of the specific circumstances of the case,” id., and “different factors will weigh more heavily from case to case depending on the particular facts and circumstances involved.” Marathon Mfg. Co. v. Enerlite Prods. Corp., 767 F.2d 214, 218 (5th Cir.1985). If the likelihood-of-confusion test is closely balanced, the question should be resolved in favor of the senior user. See 3 McCarthy § 23:64 (“The burden of proof is always on the plaintiff, but when the evidence is weighed and the scales balance equally, the doubt is resolved in favor of the party who has built up valuable rights in the mark.”) (emphasis added). Plaintiffs assert that Defendant’s use of “America’s Team” infringes the Cowboys’ trademark under each of three theories of consumer confusion. Plaintiffs say it may cause consumers to believe the Defendant is sponsored or endorsed by the Cowboys. See Pebble Beach Co. v. Tour 181 Ltd., 942 F.Supp. 1513, 1541 (S.D.Tex.1996). Or it may cause “initial interest confusion” by attracting consumers who are looking for Cowboys merchandise. See Elvis Presley Enters., 141 F.3d at 202. Or it may result in “post-sale confusion” when" }, { "docid": "22982752", "title": "", "text": "In a trademark infringement action, the paramount question is whether one mark is likely to cause confusion with another. Marathon Mfg. Co. v. Enerlite Prods. Corp., 767 F.2d 214, 217 (5th Cir.1985). “Likelihood of confusion” means more than a mere possibility; the plaintiff must demonstrate a probability of confusion. Smack Apparel, 550 F.3d at 478. We examine the following nonexhaustive “digits of confusion” in evaluating likelihood of confusion: (1) the type of trademark; (2) mark similarity; (3) product similarity; (4) outlet and purchaser identity; (5) advertising media identity; (6) defendant’s intent; (7) actual confusion; and (8) care exercised by potential purchasers. Id. No digit is dispositive, and the digits may weigh differently from case to case, “depending on the particular facts and circumstances involved.” Marathon, 767 F.2d at 218. The court should consider all relevant evidence. Id. at 219. While likelihood of confusion is typically a question of fact, summary judgment is proper if the “record compels the conclusion that the movant is entitled to judgment as a matter of law.” Smack Apparel, 550 F.3d at 474. We first consider likelihood of confusion between XTENDED BEAUTY and XTREME LASHES. We then ask whether EXTEND YOUR BEAUTY is a protectable mark, and if so, whether confusion is likely between it and XTENDED BEAUTY. A. XTREME LASHES Type of trademark. “Type of trademark” refers to the strength of the senior mark. Elvis Presley Enters., Inc. v. Capece, 141 F.3d 188, 201 (5th Cir.1998). Stronger marks are entitled to greater protection. Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 259 (5th Cir.1980). Marks are normally assigned to “categories of generally increasing distinctiveness”: (1) generic, (2) descriptive, (3) suggestive, (4) arbitrary, or (5) fanciful. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). “The latter three categories of marks, because their intrinsic nature serves to identify a particular source of a product, are deemed inherently distinctive and are entitled to protection.” Id. A generic term refers to the class of which a good is a member. Id. A descriptive term provides an attribute or" }, { "docid": "14358738", "title": "", "text": "e.g., National Football League Properties, Inc. v. New Jersey Giants, Inc., 637 F.Supp. 507, 511 (D.N.J.1986); National Football League Properties, Inc. v. Wichita Falls Sportswear, Inc., 532 F.Supp. 651, 658-59 (W.D.Wash.1982). The Court therefore concludes that NFL marks are protectable. The likelihood of confusion test focuses on whether a defendant’s use of a plaintiff’s trademark would likely create confusion in the minds of potential buyers as to the source, affiliation or sponsorship of the parties’ products. Oreck Corp. v. U.S. Floor Sys., Inc., 803 F.2d 166, 170 (5th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). To determine likelihood of confusion, one considers a variety of factors, including the strength of a trademark at issue, similarity of design, similarity of product, identity of retail outlets and purchasers, identity of advertising media used, the defendant’s intent and actual confusion. Soweco, Inc., 617 F.2d at 1185. These are the so-called “digits of confusion” criteria. Proof of actual confusion is unnecessary; rather, the likelihood of confusion is the determinative factor, and this question is one of fact. Id. at 1186. None of these factors by itself is dispositive; different factors will weigh heavier from case to case depending on facts and circumstances involved. Marathon Mfg. Co., 767 F.2d at 218. The Court must also consider defenses that the Defendant raises because their success or lack of success may impact the likelihood of success on the merits. See Allied Mktg. Group, Inc., 878 F.2d at 811-12 (case remanded for determination of defenses in copyright case in preliminary injunction context). Because NFL marks have accrued secondary meaning as noted above, the Court concludes that the marks are strong. This determination is conclusive of the first digit of the digits of confusion test, and the Court therefore continues its analysis with the second digit. Regarding similarity of design, the Court must not view marks in isolation, but rather must look at the marks in their entirety, not merely at individual similar features. Oreck Corp., 803 F.2d at 171; Armstrong Cork Co. v. World Carpets, Inc., 597 F.2d 496, 502 (5th Cir.1979)," }, { "docid": "15064593", "title": "", "text": "this point is well taken. The trial court correctly identified the factors to be considered in determining likelihood of confusion: (a) type of trademark, that is, the strength of the prior owner’s mark; (b) degree of similarity between the two marks; (c) similarity between the two products; (d) identity of retail outlets and purchasers; (e) identity of advertising media utilized; (f) defendant’s intent; (g) actual confusion. Armco, Inc. v. Armco Burglar Alarm, Inc., 693 F.2d 1155, 1159 (5th Cir.1982). The court then, however, apparently cast aside these factors, holding for defendants because “there is no likelihood of confusion between the Plaintiff’s products and Shinohara’s printing presses.” It is obviously true that no one is likely to confuse a printing press with the equipment used in its operation. It is also irrelevant except as bearing on the third factor to be considered, similarity of products. The “most decisive factor” to the trial court was one that did not appear on the list, the sophistication of the buyers of Shinohara’s presses, and the high cost of these presses. Even assuming purchaser sophistication and product cost to be proper subjects of inquiry, it is clearly necessary to consider each with respect to each party’s products. Here, the trial court erred by stopping at Shinohara’s presses, and by equating the admitted technical sophistication of press purchasers with trademark sophistication. It is well settled that expertise in the field of trademarks cannot be inferred from expertise in another area. See, e.g., AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 353 (9th Cir.1979); Omega Importing Corp. v. Petri-Kine Camera Co., 451 F.2d 1190, 1195 (2d Cir. 1971); Communications Satellite Corp. v. Comcet, Inc., 429 F.2d 1245, 1252-53 (4th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 245 (1970) (collecting cases and authorities); American Drill Bushing Co. v. Rockwell Manufacturing Co., 342 F.2d 1019, 1022, CCPA 1173 (1965); Koppers Company, Inc. v. Krupp-Koppers GmbH, 517 F.Supp. 836, 845 (W.D.Pa.1981). (collecting cases). We may assume the purchasers of presses to be sophisticated about printing; we may also assume that presses, which cost tens of thousands" } ]

[ { "docid": "6393262", "title": "", "text": "of late deliveries were made; also failure to build in accordance with the specifications. On July 30, 1925, the arbitrators selected by the parties failed to agree on a third arbitrator. The plaintiff then presented a petition to the Supreme Court of the state of New York, praying for the appointment of a third arbitrator, and an order was entered, making such appointment and directing the parties to proceed to arbitration in accordance with the contract stipulation. The petition, praying such appointment, alleged making the contract and the large expense incurred by the Bear Tractors, Inc., in relying upon the performance of the contract, the controversies as to the performance, and the willingness on the part of the plaintiff to settle them by arbitration. It recited a demand upon the defendant therefor. It also stated that the arbitrators named by the parties were unable to agree on a third, and prayed “that this court direct the parties to proceed to arbitration in accordance with the terms of said agreement.” Whereupon the defendant filed a petition for the removal of the suit to the District Court for the Southern District of New York upon the ground of diversity of citizenship, and alleging that the matter in controversy exceeded, exclusive of interest and costs, the sum of $3,000. The petition further alleged: “The Arbitration Law of New York (Laws of 1920, chapter 275, as amended) provides for a civil action at law to result in a judgment to be entered and enforced in the civil courts of law, of which the petition aforesaid is a part and the initial step therein.” The plaintiff moved to remand the cause to the state court, for the reason that the jurisdictional amount was not involved in the proceeding to compel arbitration. An order remanding was granted by the District Court. Marchant v. Mead-Morrison Mfg. Co., 7 F. (2d) 511. On appeal, to this court, we affirmed. 11 F.(2d) 368. We there said: “The remanding order is admittedly not subject to review in this court. Judicial Code, § 28 (Comp. St. § 1010 [28 USCA §" } ]

[ { "docid": "23513375", "title": "", "text": "rescission of the transaction. An amended complaint was filed on April 26. Conseco filed an answer on May 11, 2001, and moved to compel arbitration of the Larges’ claims pursuant to the following arbitration clause in the loan agreement: All disputes, claims, or controversies arising from or relating to this note or the relationships which result from this note, or the validity of this arbitration clause or the entire note, shall be resolved by binding arbitration by one arbitrator selected by [Conseco] with [the borrower’s] consent. The Larges opposed Conseco’s motion to compel arbitration on the ground that the arbitration clause had been automatically rescinded, along with the remainder of the loan contract, when the Larges gave Con-seco notice of rescission on March 20, 2001. The Larges also requested discovery on the question of the costs of arbitration. On June 18, 2001, Conseco wrote to the Larges offering “to pay all costs of arbitration” and to hold the arbitration in Rhode Island “as a convenience” to the Larges. On July 26, 2001, the district court granted Conseco’s motion to compel arbitration, denied the Larges’ request for discovery, and dismissed the action. The district court rejected the Larges’ “claim that their notice of rescission under the TILA invalidated all provisions of the mortgage contract, including the arbitration clause.” The court explained that “absent an attack on the specific arbitration clause included within a contract, general rescission claims are resolvable by arbitration.” The court also rejected the Larges’ request for discovery on the costs of arbitration, noting that Conseco had offered to pay their costs and to hold the arbitration in Rhode Island, and that the TILA authorized the award of costs and attorney’s fees if the Larges prevailed. See 15 U.S.C. § 1640(a)(3). The Larges filed a timely appeal. II. The Motion to Compel Arbitration The Federal Arbitration Act (FAA) “requires a federal court in which suit has been brought ‘upon any issue referable to arbitration under an agreement in writing for such arbitration’ to stay the court action pending arbitration once it is satisfied that the issue is arbitrable under" }, { "docid": "22336248", "title": "", "text": "but'that the plaintiff had refused to proceed with the arbitration. The defendant then moved that the action, and all proceedings therein, be stayed until an arbitration should be had in accordance with the terms of the contract sued on. The motion was heard on affidavits and counter affidavits. The arbitration clause is as follows: “ In case any dispute should arise between the Buyer and Seller as to the performance of any of the terms of this agreement, such dispute shall be arbitrated and the cost thereof shall be borne equally by both parties. The Buyer and the Seller shall each appoint one arbitrator and the two arbitrators so appointed shall select a third arbitrator and the decision of a majority of the three arbitrators shall be final and conclusive on both parties. In case for any reason any such arbitration shall fail to proceed to a final award, either party may apply to the Supreme Court of the State of New York for an order compelling the specific performance of this -arbitration agreement in accordance with the arbitration laws of the State of New York.” The District Court interpreted the clause as making the arbitration enforceable only in state courts of New York; and on that ground denied the stay. On an appeal from the order of denial, the Court of Appeals held that even if the clause should be so interpreted, § 3 of the United States Arbitration Act authorized the stay. It, therefore, reversed the order and directed the District Court to grant the stay, with leave to that court “ to vacate it at any time, should it appear that the defendant is in default in proceeding with the arbitration.” 70 F. (2d) 297. This Court granted certiorari. First. The order of the District Court denying the stay was not a final judgment appealable under § 128 of the Judicial Code. Being an interlocutory order, it was appealable to the Circuit Court of Appeals under § 129, only if the denial of the stay should be deemed the denial of an injunction. Compare General Electric Co." }, { "docid": "8394165", "title": "", "text": "to stay on May 29,1987. Scallop filed three amended answers over the next fifteen months. After Crysen subsequently filed an amended complaint naming Shell as a co-defendant, defendants filed an answer on January 6, 1989, requesting a jury trial. Collectively, the four amended answers included thirteen defenses not pleaded in Scallop’s original answer; in none of the four answers did Scallop or Shell reassert the arbitrability defense offered in Scallop’s original answer. In 1990, Crysen moved and defendants cross-moved for summary judgment. The Bankruptcy Court denied the motions on the ground that there existed a genuine factual dispute as to whether the oil had conformed to specifications. Following the decision, the parties engaged in extensive discovery, which was not completed until September 1, 1995. Crysen then filed a renewed motion for summary judgment, after which defendants moved by order to show cause why the adversary proceeding should not be stayed in favor of arbitration. The Bankruptcy Court signed the order, entertained argument, and on November 20, 1995, granted the motion to stay. In revisiting and reversing its 1987 decision, the Bankruptcy Court relied exclusively on Hays and Co. v. Merrill Lynch, Inc., 885 F.2d 1149 (3d Cir.1989), in which the Third Circuit had reversed its own earlier decision and concluded that district courts lack discretion to deny enforcement of an arbitration clause in a non-core adversary proceeding. The parties then shifted to arbitration. After the arbitration panel issued an Award on January 27, 1997, denying Crysen’s claims in their entirety, the matter was returned to the Bankruptcy Court. Finding no reason to vacate the arbitration award, the Bankruptcy Court issued Proposed Findings of Fact and Conclusions of Law recommending that the adversary proceeding be dismissed with prejudice. The District Court accepted the proposed disposition and dismissed the action. See In Re: Crysen/Montenay Energy Co., 240 B.R. 166 (S.D.N.Y.1999). This appeal followed. DISCUSSION On appeal, Crysen principally asserts three arguments: that defendants waived their contractual right to arbitrate, that the Bankruptcy Court lacked the authority to stay the non-core proceeding in favor of arbitration, and that the District Court’s review of" }, { "docid": "23513374", "title": "", "text": "by notifying the creditor, in accordance with regulations of the Board, of his intention to do so. 15 U.S.C. § 1635(a). Section 1635(f) establishes a three-year time limit on the exercise of the conditional right of rescission. It is the conditional, three-year right of rescission that is at issue in this case. As noted, the Larges acted well .within that time frame. In their March 20, 2001, letter the Larges indicated to Conseco that because of its alleged violation of TILA’s disclosure rules, it had “twenty days after receipt of this notice of rescission to return all monies paid and to take any action necessary and appropriate to reflect termination of [Conseco’s] security interest” in the Larges’ home, pursuant to 15 U.S.C. § 1635(b). Conseco replied nine days later, stating that it “fail[ed] to see any issues with regard to the disclosures made,” and therefore would “not comply with this disputed rescission request.” Before receiving Conseco’s letter, the Larges filed a complaint in federal district court on March 26, 2001, seeking to enforce their alleged rescission of the transaction. An amended complaint was filed on April 26. Conseco filed an answer on May 11, 2001, and moved to compel arbitration of the Larges’ claims pursuant to the following arbitration clause in the loan agreement: All disputes, claims, or controversies arising from or relating to this note or the relationships which result from this note, or the validity of this arbitration clause or the entire note, shall be resolved by binding arbitration by one arbitrator selected by [Conseco] with [the borrower’s] consent. The Larges opposed Conseco’s motion to compel arbitration on the ground that the arbitration clause had been automatically rescinded, along with the remainder of the loan contract, when the Larges gave Con-seco notice of rescission on March 20, 2001. The Larges also requested discovery on the question of the costs of arbitration. On June 18, 2001, Conseco wrote to the Larges offering “to pay all costs of arbitration” and to hold the arbitration in Rhode Island “as a convenience” to the Larges. On July 26, 2001, the district court" }, { "docid": "6921141", "title": "", "text": "MEMORANDUM OPINION COLLEEN KOLLAR-KOTELLY, District Judge. By Memorandum Opinion and Order dated July 31, 2006, this Court granted Defendant BB & T Investment Services, Inc.’s (“Defendant” or “BB & T”) request to compel arbitration of Plaintiffs breach of contract claims. The parties subsequently proceeded to arbitration, and a final arbitration award was issued in Defendant’s favor. Plaintiff, proceeding pro se, now moves the Court to vacate the unfavorable arbitration decision or, alternatively, to reconsider the Court’s July 31, 2006 Order compelling arbitration in the first instance. Defendant opposes Plaintiffs motion and cross-moves for an order confirming the arbitration award. Upon consideration of the parties’ cross-motions, responsive briefing and attachments thereto, the relevant case law and statutory authority, and the record of this case as a whole, the Court shall DENY Plaintiffs [11] Motion to Vacate Arbitration Ruling and Motion for Reconsideration to Compel Arbitration and shall GRANT Defendant’s [13] Application to Confirm Arbitration Award, for the reasons set forth below. I. BACKGROUND The Court assumes familiarity with the factual background of this case, which is set forth in detail in this Court’s July 31, 2006 Memorandum Opinion, Owen-Williams v. BB & T Inv. Servs., Inc., Civ. Act. No. 06-948, 2006 WL 6593816, 2006 U.S. Dist. LEXIS 52392 (D.D.C. July 31, 2006), and therefore addresses herein only such facts as are necessary for resolution of the motions currently before the Court. A. Plaintiffs Initial Breach of Contract Claims This lawsuit stems from BB & T’s decision to rescind its offer of employment to Plaintiff. In early 2006, Plaintiff interviewed for and was ultimately offered a position with the Defendant. Id. at *1, 2006 U.S. Dist. LEXIS 52392 at *1. The offer of employment was first conveyed orally via telephone on March 22, 2006, by one of Defendant’s recruiters, T.J. Rocco grandi. Id. at *1, 2006 U.S. Dist. LEXIS 52392 at *3. The following day, March 23, 2006, Mr. Roccograndi sent a letter to Plaintiff regarding the job offer (“Employment Contract”), along with an attached Protective Covenants Agreement (“Covenants Agreement”). Id. The Employment Contract stated that “[a]ll employment offers are contingent upon" }, { "docid": "2541156", "title": "", "text": "answer consisting of a denial of the material allegations of the complaint and the assertion of seven affirmative defenses. In a letter to Paine Webber dated June 25, 1982, Chase demanded arbitration. In a letter to Paine Webber dated July 2, 1982, Oh likewise demanded arbitration. Paine Webber refused to submit to arbitration. On July 7, 1982, Chase and Oh moved, pursuant to 9 U.S.C. § 3, for an order staying all proceedings and discovery pending arbitration. In an opinion dated June 13, 1983, Judge Ward denied defendants’ motion for a stay and set a schedule for completion of discovery and the filing of a pre-trial order. This appeal followed. II. The sole issue on this appeal is whether defendants, neither of which are members of the NYSE, can compel Paine Webber, which is a NYSE member, to submit its claims against defendants to NYSE arbitration. A good starting point is the provision of the Federal Arbitration Act pursuant to which defendants seek to compel arbitration: “If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.” 9 U.S.C. § 3 (1982). Defendants make no claim that they have an agreement with Paine Webber requiring the submission to arbitration of any disputes, they have with Paine Webber. Rather, they point to the Constitution and Rules of the NYSE, which require NYSE members to submit to arbitration any controversies with non-members arising out of the member’s business. The district court denied defendants’ motion for a stay on the ground that, as far as could be gleaned from the facts of the" }, { "docid": "4796407", "title": "", "text": "when Soler aborted the arbitration by filing a chapter 11 bankruptcy petition and triggering the automatic stay. The filing coincided with the completion of Mitsubishi’s case-in-chief and occurred just four days before the session at which the JCAA planned to begin hearing Soler’s presentation of its defenses and counterclaim evidence. On October 15, 1984, just over a month after Soler filed for bankruptcy, the Supreme Court granted both petitions for certiorari. Asserting that Supreme Court review of the case would be in the “best interest” of the debtor estate, Soler sought and obtained a modification of the automatic stay permitting the case to go forward. In its decision, announced on July 2, 1985,,. the Supreme Court held that all claims raised by the parties, including Soler’s antitrust claims, were subject to arbitration before the JCAA. 105 S.Ct. at 3361. The case was subsequently remanded to this court and, on August 26, 1985, we issued an order affirming in its entirety the original decision of the district court compelling arbitration of all claims. On September 20, 1985, following its victory at the Supreme Court, Mitsubishi moved the bankruptcy court to vacate the automatic stay for the purpose of allowing the arbitration to proceed in Japan. Soler responded immediately by commencing an adversary proceeding against Mitsubishi in bankruptcy court. Soler’s complaint essentially consisted of the same claims that it had originally raised before the district court in response to Mitsubishi’s initial attempt to compel arbitration. Only later, on October 8, 1985, did Soler file an “answer” responding directly to Mitsubishi’s latest motion. This answer, while generally denying the existence of any cause for vacating the stay, raised for the first time Sol-er’s argument that due to its “financial conditions ..., it should not legally nor equitably be compelled to arbitrate the different controversies pending with Mitsubishi Motors Corporation in an arbitration forum in Japan.” The answer also stated in summary fashion that Soler wished to offer undescribed testimonial and documentary evidence at the final hearing mandated by section 362(d). On October 11, 1985, Mitsubishi asked the district court to withdraw reference of" }, { "docid": "13962218", "title": "", "text": "ORDER AND OPINION DEVINE, District Judge. On or about April 1, 1976, plaintiff Williams, a resident of Vermont, entered into a contract with defendant Beyer, a resident of New Hampshire, whereby plaintiff agreed to construct a house for defendant in Etna Village, Grafton County, New Hampshire. The contract was drafted by an attorney retained by the defendant, and contained an agreement to arbitrate as follows: 8. DISPUTE: Any dispute arising out of this Contract or the application of any provisions thereof shall be submitted to an arbitrator or arbitrators not interested in the financial aspects of this Contract. The parties may agree on one arbitrator, or may select one each and these two shall select a third. It is mutually agreed that any such arbitration award shall be binding and at the same weight as a legal adjudication of any differences between the parties. A dispute subsequently arose between the parties, and on March 7, 1977, the plaintiff filed in the Superior Court of Grafton County a Petition For Appointment Of Arbitrator, pursuant to RSA 542:4. This petition set forth the diverse residency of the parties and indicated that the amount in controversy was $15,000. The petition was duly served upon the defendant, who filed an Answer And Cross-Petition on April 14, 1977. On June 9, 1977, the defendant filed a Petition to Attach, alleging that his counterclaim was in the amount of $30,000, and that because of the non-residence of the plaintiff, attachment of such assets as were located in New Hampshire was necessary. RSA 542:4 provides in pertinent part: If no method of naming arbitrators be provided, or if for any other reason there shall be a lapse in the naming of arbitrators, then upon the application of either party to the controversy the court aforesaid or the court in and for the county in which the arbitration is to be held shall designate and appoint an arbitrator or arbitrators as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein;" }, { "docid": "689519", "title": "", "text": "such demand or notice, then the undersigned authorizes you to do so. on the behalf of the undersigned. Plaintiffs moved from Mississippi to California in July 1983, and Powell left Merrill Lynch to work at Paine Webber. Plaintiffs then transferred their account to Paine Webber and executed a Client’s Agreement, which contained the following arbitration clause: 15. Any controversy between us arising out of or relating to this contract or the breach thereof, shall be settled by arbitration, in accordance with the rules, then obtaining, of either the Arbitration Committee of the New York Stock Exchange, American Stock Exchange, National Association of Securities Dealers or where appropriate, Chicago Board Option Exchange of Commodities Futures Trading Commission, as I may elect. I authorize you if I do not make such election, by registered mail addressed to you at your main office within fifteen (15) days after receipt of notification from you requesting such election, to make such election in my behalf. Any arbitration hereunder shall be before at least three arbitrators and the award of the arbitrators, or of a majority of them, shall be final, and judgment upon the award rendered may be entered in any court, state or federal, having jurisdiction. See Petition for Order Compelling Arbitration, Exhibit A. Defendants have requested that plaintiffs submit their disputes to arbitration as provided in these arbitration provisions. Because plaintiffs have refused to do so, Merrill Lynch and Paine Webber each petition the court to enforce the arbitration clauses. II. Statutory authorization for the enforcement of arbitration clauses is found in section 2 of the Federal Arbitration Act, 9 U.S.C. section 2, which provides in part: A written provision in any ... contract evidencing a transaction involving commerce to settle by-arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation" }, { "docid": "6921192", "title": "", "text": "rule against him because of bias towards a “fellow Member Firm.” Such an argument is entirely speculative and unsupported by the type of specific facts necessary to indicate improper motives on the part of an arbitrator. Moreover, the Court notes that Plaintiffs counsel twice confirmed Plaintiffs acceptance of the panel composition during the arbitration hearing and at no time voiced an objection to the panel members. See Initial Pre-Hearing Conference Scheduling Order at pp. 5-6 (indicating that the parties accepted the panel’s composition); Hrg Tr. Vol. 1 at 4:3-8 (“Chairman [ ]: At this point in time, given the disclosures have been made, the introductions have been made, I would ask each of the parties to confirm that they accept the panel’s composition?” [“Plaintiffs Counsel]: We accept the panel.”). Accordingly, the Court finds that Plaintiff has not demonstrated that vacatur under either 9 U.S.C. § 10(a)(2) for these additional reasons. The Court shall therefore DENY Plaintiffs [11] Motion insofar as he moves for an order vacating the arbitration award in Defendant’s favor. C. Defendant’s Cross-Motion to Confirm All that remains before the Court, then, is the Defendant’s [13] Cross-Motion to Confirm the Arbitration Award. Defendant moves for confirmation of the award pursuant to 9 U.S.C. § 9, which provides as follows: If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. As the Supreme Court has observed, “[o]n application for an order confirming the arbitration award, the court ‘must grant’" }, { "docid": "972193", "title": "", "text": "JAMES C. HILL, Circuit Judge: Plaintiff-appellant, Commercial Metals Company, appeals from the District Court’s dismissal of its amended complaint against defendant-appellee, Balfour, Guthrie & Company, Limited. We affirm. The instant dispute arises out of three contracts between the parties, whereby plaintiff sold to the defendant a certain quantity of Korean steel of certain specifications. Each contract contained the following arbitration clause: 11. ARBITRATION: Any controversy arising under or in connection with the contract shall be submitted to arbitration in Dallas, Texas, in accordance with the rules of the American Arbitration Association; judgment on any award may be entered in any court having jurisdiction; the parties hereto submit to the jurisdiction of the Federal and State courts in Dallas, Texas, and notice of process in connection with the arbitral or judicial proceedings may be served upon the parties by registered or certified mail, with the same effect as if personally served. After contracting with plaintiff, defendant Balfour, in turn, contracted to sell the Korean steel to one of its customers located in the State of Washington. Upon delivery of the steel to Balfour’s customer, a dispute arose between Balfour and its customer as to whether or not the steel complied with the contract specifications. Balfour thereupon informed the plaintiff that a claim would be pursued if the steel was not in conformity with the contract. On February 20,1976, the plaintiff, alleging diversity of citizenship, filed, in the District Court for the Northern District of Texas, a petition to compel defendant to submit its claim against plaintiff to arbitration. Shortly thereafter, defendant filed suit in a Washington State Superior Court seeking damages against the plaintiff or the collection of its account from its customer. Shortly after filing its petition in the District Court, plaintiff became aware that diversity jurisdiction was lacking since both the plaintiff and defendant corporation had citizenship in Delaware. Plaintiff then amended its complaint. In its amended complaint, plaintiff sought a declaratory judgment, pursuant to 28 U.S.C. § 2201, that the contractual arbitration provisions were valid and enforceable, as provided by Section 2 of the Federal Arbitration Act, 9" }, { "docid": "13962219", "title": "", "text": "542:4. This petition set forth the diverse residency of the parties and indicated that the amount in controversy was $15,000. The petition was duly served upon the defendant, who filed an Answer And Cross-Petition on April 14, 1977. On June 9, 1977, the defendant filed a Petition to Attach, alleging that his counterclaim was in the amount of $30,000, and that because of the non-residence of the plaintiff, attachment of such assets as were located in New Hampshire was necessary. RSA 542:4 provides in pertinent part: If no method of naming arbitrators be provided, or if for any other reason there shall be a lapse in the naming of arbitrators, then upon the application of either party to the controversy the court aforesaid or the court in and for the county in which the arbitration is to be held shall designate and appoint an arbitrator or arbitrators as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein; and, unless otherwise provided in the agreement, the arbitration shall be by a single arbitrator. On August 19, 1977, the Superior Court of Grafton County denied the defendant’s petition to attach and ordered the parties to proceed to arbitration. It was originally contemplated that arbitration would proceed before three arbitrators but, due to the illness of one arbitrator chosen, the parties agreed to proceed before a single arbitrator who held hearings and took evidence between March 15 and 17, 1978. On March 29, 1978, the arbitrator entered an award which directed that the defendant pay to the plaintiff the sum of nine thousand and twelve dollars ($9,012). The defendant having failed to pay the arbitrator’s award, the plaintiff on May 1, 1978, filed an Application For Confirmation Of Award in the Grafton County Superior Court. On May 8, 1978, defendant filed his petition and bond for removal in this court pursuant to 28 U.S.C. § 1446. On the same date defendant also filed in this court his Motion To Vacate Arbitration Award, contending that jurisdiction" }, { "docid": "7561907", "title": "", "text": "state law claims. In December of that year, defendants moved to stay the action and compel arbitration. The state court held in May of 1991 that the arbitration agreement contained in the Uniform Application for Securities Industry Registration Form (the “U-4 Form”) was enforceable. Plaintiff was required by the various securities exchanges to sign the U — 1 Form in order to be registered with the exchanges as a securities representative. The court therefore granted defendant’s motion and compelled arbitration. Chisolm v. Kidder, Peabody Asset Management, No. 33022/91 (N.Y.Sup.Ct.). Plaintiff then filed this action in January of 1992, alleging a violation of the ADEA. Defendants again moved for a stay and an order compelling arbitration on March 3,1992. By Order and Opinion dated May 28, 1992, this court granted the stay and ordered the case to arbitration, based largely upon the reasoning in the opinion issued weeks earlier in the parallel state action. Chisolm v. Kidder, Peabody Asset Management, Inc., 810 F.Supp. 479, 480-81 (S.D.N.Y.1992). To decide this matter, an arbitral panel of the National Association of Securities Deal ers (“NASD”) held 43 hearing sessions and received 157 exhibits. On August 6, 1996, the panel issued an opinion which summarized the contentions of both sides and then read as follows: After considering the pleadings, the testimony and the evidence presented at the hearing, the undersigned arbitrators have decided in full and final resolution of the issues submitted for determination as follows: ... The claims of Claimant 0. Beirne Chisolm against Respondents Kidder, Peabody & Co., Inc., Kidder, Peabody Asset Management, Inc., and George V. Gruñe are dismissed in their entirety. The panel did not issue findings of fact or conclusions of law, nor did it provide any specific bases for its decision. Plaintiff now moves to have the decision of the panel vacated and retry the issue in this court. DISCUSSION I. Federal Policy Favoring Arbitrability The purpose of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., was to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and to place" }, { "docid": "22183797", "title": "", "text": "any action under section 3 of this title, (B) denying a petition under section 4 of this title to order arbitration to proceed, (C) denying an application under section 206 of this title to compel arbitration, (D) confirming or denying confirmation of an award or partial award, or (E) modifying, correcting, or vacating an award; (2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is subject to this title; or (3) a final decision with respect to an arbitration that is subject to this title. (b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order' — ■ (1) granting a stay of any action under section 3 of this title; (2) directing arbitration to proceed under section 4 of this title; (3) compelling arbitration under section 206 of this title; or (4) refusing to enjoin an arbitration that is subject to this title. 9 U.S.C. § 16. We dismissed Smith’s appeal on the ground that it was an interlocutory order directing arbitration to proceed under section 4, and therefore not appealable under 9 U.S.C. § 16(b). We stated that a district court’s order in an independent proceeding, one brought by the plaintiff in order to compel arbitration, is considered final and immediately appealable because it addresses the exact relief sought. Smith, 209 F.3d at 271. We contrasted such an order from an order in an “embedded” proceeding, one where the defendant, rather than the plaintiff, moves to compel enforcement of the arbitration agreement as a defense to claims brought before the court. We noted that the latter traditionally had been considered interlocutory and not immediately appealable. Id. In Smith, we recognized the apparent anomaly of treating these types of proceedings differently but pointed to the rationale we had previously applied “ ‘that an order directing arbitration is interlocutory and, therefore, not appealable if it is made in a lawsuit, such as a suit for damages, in which in the normal course of judicial procedure there will be a later final order or judgment from" }, { "docid": "14017540", "title": "", "text": "Publishers did not respond to this letter. The contract expired on December 31, 1959; the Pressmen called a strike on January 2, 1960; and on January 4, the union representative again wrote and requested that there be a meeting of the joint standing committee in order that the dispute between the parties be settled. On January 11 the Publishers replied and refused to refer the matters to the committee, taking the position that no useful purpose could be served by compliance with the Pressmen’s request. On January 15 the Pressmen filed this suit asking that the court compel the Publishers to submit the controversy to arbitration. The Publishers moved that the complaint be dismissed, and on April 14, 1960, the district court granted their motion. It held that the complaint does not present facts showing a justiciable controversy; that the dispute falls within the exclusive jurisdiction of the National Labor Relations Board; and that the breach of the “no strike agreement” deprives the Pressmen of the right to invoke the arbitra tion provisions. From that decision the Pressmen bring this appeal. This court has jurisdiction to hear the appeal under 28 U.S.C.A. § 1291. Under § 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185, the federal courts are empowered to compel arbitration under collective bargaining agreements, provided that the movants-establish a contractual right to arbitrate. Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. It is therefore necessary to turn to the contract between the parties to see if it creates a legally enforceable duty to arbitrate the dispute presented here. The pertinent provisions of the contract between the Pressmen and the Publishers are contained in the following sections. “Section 4. A joint Standing Committee, composed of two representatives of the parties of the first part and two representatives of the party of the second part shall be appointed, the members representing the parties of the first part shall be selected by the publishers and the members representing the party of the second part shall be selected by" }, { "docid": "14805660", "title": "", "text": "between the Union and Philadelphia Waist and Dress Manufacturers’ Association by which he agreed to be bound. “The mandatory decree to that effect is affirmed.” . Final Decree. 1. Defendant Jesse J. Rosinsky, individually and trading as H. H. Rosin-sky & Company, shall, within twenty days hereof, proceed to arbitration of such grievances filed against said defendant by the plaintiff, Joint Board of Waist and Dressmakers’ Union of Philadelphia, as apply to the period August-October 1946 to January 31, 1951; the said arbitration to be held before Permanent Impartial Chairman Dr. George W. Taylor, or the Permanent Associate Chairman, William E. Simkin, as provided by the arbitration clauses of the collective bargaining agreement of June 28, 1946 (as extended by the Mediation Award of December 11, 1948), between Philadelphia Waist and Dress Manufacturers’ Association and Joint Board of Waist and Dressmakers’ Union of Philadelphia. . (a) The pertinent provision of Section 9 of the Arbitration Act states: “9. Award of arbitrators; confirmation; jurisdiction; procedure “If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. Notice of the application shall be served upon the adverse party, and thereupon the court shall have jurisdiction of such party as though he had appeared • generally in the proceeding. * * * ” (b) Section 10 states: “10. Same; vacation; grounds; rehearing “In either of the following cases the United States court in and for the district wherein the award was made may make" }, { "docid": "7554002", "title": "", "text": "complaint and compelling arbitration); Choice Hotels Int’l, Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707, 709-10 (4th Cir.2001) (“dismissal is a proper remedy when all of the issues presented in a lawsuit are arbitra-ble.”); Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir.1992) (“[t]he weight of authority clearly supports dismissal of the case when all of the issues raised in the district court must be submitted to arbitration.”); Emeronye, 141 F.Supp.2d at 88; Nur, 142 F.Supp.2d at 51. Thus, because the arbitration agreement is a valid and enforceable contract, this Court finds it appropriate to grant the defendant’s motion for summary judgment so that the plaintiff can submit her claims to the appropriate arbitral forum. SO ORDERED this 12th day of August, 2002. ORDER Upon consideration of Defendant’s Motion for Summary Judgment and for the reasons set forth in the Memorandum Opinion accompanying this Order, it is hereby, ORDERED that the above-captioned case is DISMISSED WITHOUT PREJUDICE; and, it is FURTHER ORDERED that this dismissal is predicated upon the defendant’s offer to “pay all fees and expenses of the mediator and, if necessary, the arbitrator.” Therefore, in accordance with this offer made by the defendant, it shall file a stipulation to this effect with ten (10) days of the entry of this Order. However, if the defendant no longer desires to comply with this offer, it shall so advise the Court and the Court will vacate this Order and schedule an evidentiary hearing for the purposes of addressing whether any imposed arbitration costs are prohibitive to the plaintiffs ability to submit her claims to arbitration. This is a final appealable order. SO ORDERED this 12th day of August, 2002. . Neither party provided the date when the plaintiff’s employment was terminated. . 28 U.S.C. § 1332(a)(1) states that \"[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—citizens of different States.” This jurisdictional statute also provides that for its purposes \"a corporation shall be deemed" }, { "docid": "18437170", "title": "", "text": "to dismiss the RICO claim. Plaintiffs cross-move to stay arbitration pending resolution of this proceeding. DISCUSSION A. Arbitration Clauses The Federal Arbitration Act, 9 U.S.C. § 1 et seq., provides in § 3 that [i]f any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. Section 3 applies to contracts covered by § 2 as follows: A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or equity for the revocation of any contract. Defendants point to two provisions to settle disputes by arbitration in their agreements with plaintiffs. First they rely on the amended agreement of limited partnership for Express, Ltd. which provides in § 15.9: Arbitration. In the event of a dispute among the Partners regarding the interpretation of this Agreement of any other matter which remains unresolved for a period of more than seven days following written notice of said dispute to the General Partners, disputants shall submit such dispute to binding arbitration pursuant to the Rules of the Exchange, and any award thereunder shall be final and binding on all the disputants and on the limited partnership. Defendants contend that the underlined portion of the above paragraph contains a typographical error and that the" }, { "docid": "12845284", "title": "", "text": "WIENER, Circuit Judge: Plaintiff-Appellant Edmond Hadnot appeals the district court’s order severing the punitive and exemplary damages prohibition contained in the arbitration provision of the employment agreement at issue, and compelling arbitration. Hadnot claims that the district court erred in holding the arbitration provision of his employment contract valid and enforceable after striking the ban on the arbitrator’s authority to award exemplary and punitive damages as applied to Hadnot’s Title VII claim. We affirm. I. Facts and Proceedings Hadnot filed suit in the district court against Defendant-Appellee Bay, Ltd. (“Bay”) and three of his former coworkers, alleging intentional infliction of emotional distress by all defendants and racial discrimination in violation of Title VII by Bay. Hadnot and Bay had entered into an employment agreement (the “Agreement”) containing an arbitration provision. The district court compelled arbitration after invalidating a restriction in the arbitration provision that excludes punitive and exemplary damages from the kinds of damages that the arbitrator is authorized to award. Hadnot timely filed a notice of appeal. II. Analysis A. Standard of Review We review a district court’s grant or denial of a motion to compel arbitration de novo. B. Test for Enforceability of Arbitration Provision Courts adjudicating a motion to compel arbitration engage in a two-step process. First, the court asks “whether the parties agreed to arbitrate [the] dispute.” If this question is answered in the affirmative, the court asks “whether legal constraints external to the parties’ agreement foreclosed the arbitration” of the dispute. The district court concluded that the Agreement was enforceable — with the exception of its prohibition of the arbitrator’s awarding exemplary and punitive damages — and that Hadnot’s claims fell within its scope. We now turn to Hadnot’s contentions on appeal. C. Consideration Hadnot asserts that, under Texas law, the Agreement is unsupported by valid consideration. He contends that the only possible consideration on the part of Bay is “the consideration of [Hadnot’s] applica tion for employment, the offer of at will employment, and the continuation of at will employment.” Hadnot argues that two recent Texas Supreme Court cases, Light v. Centel Cellular Company" }, { "docid": "23499715", "title": "", "text": "C3-Freeman Agreement. The district court rejected this contention because it found that Freeman offered no evidentiary support for his allegation that Thomson had the requisite knowledge. In accordance with the foregoing, the district court denied Freeman’s motion to compel Thomson to arbitrate and stayed Freeman’s claims against Thomson pending the outcome of the arbitration among Freeman, C3 and Glazier. It placed on the suspense docket so much of the proceeding as was not otherwise disposed of by its memorandum opinion. Accordingly, judgment was entered on July 8, 1996, directing Freeman, C3 and Glazier to proceed to arbitration. This appeal and cross-appeal followed. DISCUSSION I. Appellate Jurisdiction A. Jurisdiction Over the Cross-Appeal In making the motions giving rise to the judgment of the district court, both Freeman and the defendants cited section 3 of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 3, as authority for the relief sought. Section 3 provides in part: If any suit or proceeding be brought ... upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had.... On his motion, Freeman contended that his claims against Glazier were referable to arbitration under the C3-Freeman Agreement on a veil-piercing theory and that his claims against Thomson were referable to arbitration under the Agreement on a successor liability theory. Freeman prevailed on the former theory but not on the latter. He contends in his cross-appeal that the court erred in fading to order Thomson to proceed to arbitration on his claims against it. Section 16 of the FAA provides that “[a]n appeal may be taken from ... an order ... denying a petition under section 4 of this title to order arbitration to proceed.” 9 U.S.C. § 16(a)(1)(B). Section 4 relates to the procedure to be followed in applications made to a court to compel arbitration." } ]

[ { "docid": "3193498", "title": "", "text": "produced at trial demonstrate that it earned $31,921.00. In assessing damages in this matter, I exercise my discretion because I find that the profits reflected in the records produced by Mr. Miller are inadequate to compensate Plaintiff for Mr. Miller’s unlawful conduct. Thus, I award Plaintiff $100,000.00. 7. Pursuant to 15 U.S.C. § 1117(a), “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” An exceptional case is one in which there is culpable conduct, or knowing infringement, on the part of the defendant. See Securacomm Consulting, Inc. v. Securacom, Inc., 224 F.3d 273, 280 (3d Cir.2000) (citing Ferrero U.S.A., Inc. v. Ozak Trading, Inc., 952 F.2d 44, 47 (3d Cir.1991)); ACCU Personnel, Inc. v. AccuStaff, Inc., 846 F.Supp. 1191, 1216 (D.Del.1994). Here, the defendant was well aware that his repeated use of the Marks was unlawful. I find that Mr. Miller’s conduct constitutes knowing and willful infringement of Plaintiffs Marks. Therefore, this is such an exceptional case warranting the award of attorney fees. 8. Pursuant to 15 U.S.C. § 1117(c), in a case in which the court finds a willful use of a counterfeit mark (copy), as defined by 15 U .S.C. § 1116(d), has been established, the plaintiff may elect to recover statutory damages, of “not more than $1,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just.” I find Mr. Miller’s use of counterfeit marks to be willful. 9. Plaintiff requests damages pursuant to 15 U.S.C. § 1117(a) and elects statutory damages pursuant to § 1117(c) in the alternative. JUDGMENT AND NOW, this 9th day of February, 2001, it is hereby ORDERED as followed: 1. JUDGMENT IS ENTERED in favor of plaintiff Choice Hotels International, Inc. and against defendant David Miller, individually; 2. Defendants Miller and Pennave are PERMANENTLY ENJOINED from: a. Using the Marks or any confusingly similar designation, alone or in combination with other words, as a trademark, corporate name, trade name component or otherwise, to market, advertise or identify the hotel located at 530 Pennsylvania Avenue in Fort Washington," } ]

[ { "docid": "14498018", "title": "", "text": "(citing 15 U.S.C. § 1117). Thus, if a defendant’s use of a “counterfeit mark” consists of “intentionally using a mark or designation, [and] knowing such mark or designation is a counterfeit mark,” the district court is required to award treble “profits or damages, whichever amount is greater, together with a reasonable attorney’s fees” absent extenuating circumstances. Georgia-Pac. Consumer Prods. LP, 781 F.3d at 717-18 (quoting 15 U.S.C. § 1117(b)); accord Babbit Elecs., Inc. v. Dynascan Corp., 38 F.3d 1161, 1183 (11th Cir.1994) (interior citations omitted). The Court will first turn to whether the award of treble damages and attorney’s fees is mandated under 15 U.S.C. § 1117(b). A. Mandatory Treble Damages and Attorney’s Fees under 15 U.S.C. § 1117(b) Plaintiffs contend that they are entitled, under 15 U.S.C. § 1117(b), to treble damages and reasonable attorney’s fees on their Lanham Act claims against all corporate and individual defendants, with the exception of Defendant Zaver. (Doc. No. 224 at 11-18, 22.) Plaintiffs argue that Section 1117(b) applies to the instant case because (1) the sale of inauthentic services bearing an authentic trademark is counterfeiting under 15 U.S.C. § 1117(b); and (2) that holdover franchisees are counterfeiters for purposes of 15 U.S.C. § 1117(b). (Doc. No. 224 at 11-16.) Defendants merely state that they oppose paying additional damages to Plaintiffs and do not address Section 35(b) of the Lanham Act. (See Doc. Nos. 227, 228.) Accordingly, this Court must first determine whether Defendants’ use of Plaintiffs’ trademarks amounts to counterfeiting. A split in authority has developed in federal jurisprudence over whether an ex-licensee’s continued use of a trademark constitutes counterfeiting for purposes of awarding treble damages and attorney’s fees under 15 U.S.C. § 1117(b). Compare U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1187 (6th Cir.1997), with State of Idaho Potato Comm’n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 772 (9th Cir.2005). In fact, district courts in this Circuit are also split on the matter. Compare Pennzoil-Quaker State Co. v. Smith, No. 05-1505, 2008 WL 4107159, at *22 (W.D.Pa. Sept. 2, 2008), with Days Inns Worldwide, Inc." }, { "docid": "23638375", "title": "", "text": "inapplicable to this ease, and because the amount awarded is unreasonable. For the reasons set forth below, we remand the award of attorneys’ fees to the district court for further consideration. A. Section 1117(b) applies in cases of trademark infringement that “consist[ ] of intentionally using a mark or designation, knowing such mark or designation is a counterfeit mark ..., in connection with the sale, offering for sale, or distribution of goods or services.” 15 U.S.C. § 1117(b). Section 1116(d) defines the term “counterfeit mark” as (i) a counterfeit of a mark that is registered on the principal register in the United States Patent and Trademark Office for such goods or services sold, offered for sale, or distributed and that is in use, whether or not the person against whom relief is sought knew such mark was so registered; or (ii) a spurious designation that is identical with, or substantially indistinguishable from, a designation as to which the remedies of this chapter are made available by reason of section 380 of Title 36; but such term does not include any mark or designation used on or in connection with goods or services of which the manu-faeture[r] or producer was, at the time of the manufacture or production in question authorized to use the mark or designation for the type of goods or services so manufactured or produced, by the holder of the right to use such mark or designation. 15 U.S.C. § 1116(d)(1)(B). Where a counterfeit mark is used, an award of reasonable attorneys’ fees is mandated, unless the court finds extenuating circumstances. 15 U.S.C. § 1117(b). We agree with defendants that § 1117(b) does not apply where, as in this case, a holdover franchisee continues to use the franchisor’s original trademark after the franchise has been terminated. Although the use of an original trademark is without authorization, it is not the use of a counterfeit mark. Thus, the district court erred in awarding attorneys’ fees pursuant to § 1117(b). However, the Lanham Act also provides for recovery of attorneys’ fees under 15 U.S.C. § 1117(a). Section 1117(a) states that" }, { "docid": "14498016", "title": "", "text": "a matter of law against Defendants HI Hotel Group, S. Patel and Zaver as to Plaintiffs breach of contract claim. (Doc. No. 222.) On May 19, 2015, Plaintiffs petitioned the Court to award Plaintiffs treble damages, attorney’s fees, costs, and prejudg ment interest. (Doc. No. 224.) Plaintiffs contend that they are contractually entitled to reasonable attorney’s fees and costs under the Motel 6 franchising agreement as well as statutorily entitled to treble damages, reasonable attorney’s fees, costs, and prejudgment interest under Section 85 of the Lanham Act. (See id.) On June 2, 2015,- Defendants S. Patel, Shah, and I. Patel wrote this Court to oppose an award of treble damages and attorney’s fees. (See Doc. Nos. 227, 228.) The petition is now ripe for disposition. II. DISCUSSION Section 35 of the Lanham Act, codified at 15 U.S.C. § 1117, lists the several remedies available for trademark infringement by separating and categorizing “each type of monetary award.” Georgia-Pac. Consumer Prods. LP v. von Drehle Corp., 781 F.3d 710, 717 (4th Cir.2015) (citing 15 U.S.C. § 1117). Section 35 of the Lanham Act distinguishes, in particular, the monetary relief for “counterfeiting” from mere trademark infringement. State of Idaho Potato Comm’n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 720 (9th Cir.2005). As the United States Court of Appeals for the Fourth Circuit summarized in Georgia-Pacific Consumer Products LP: Section 1117(a), which applies generally to trademark infringement cases ... authorizes a plaintiff to recover (1) the defendant’s profits based simply on proof of the defendant’s sales; (2) the plaintiff’s damages; (3) court costs; and (4) in exceptional cases, attorneys fees ... Section 1117(b), on the other hand, mandates the award of treble profits or treble damages for a defendant’s “use of [a] counterfeit mark” if the infringement consists of (1) “intentionally using a mark or designation, knowing such mark or designation is a counterfeit mark,” or (2) “providing goods or services [using such mark], with the intent that the recipient of the goods or services would put the goods or services to use in committing the violation.” 781 F.3d at 717-18" }, { "docid": "12433869", "title": "", "text": "in connection with the sale, offering for sale or distribution of goods or services in the amount of (1) not less than $500 or more than $100,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed as the court considers just; or (2) If the court finds that the use of the counterfeit mark was willful, not more than $1,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just. 15 U.S.C. § 1117(c) (emphasis added). Thus, in cases involving the use of a counterfeit mark, the plain language of the statute affords plaintiffs the right to pursue statutory damages without proving actual damages; however, the statute does not provide guidelines for courts to use in determining an appropriate award. 22. The statute is clear that in order to award the maximum $1 million award, the defendants must have engaged in willful conduct, which entails “an aura of indifference to plaintiffs rights” or a “deliberate and unnecessary duplicating of a plaintiffs mark ... in a way that was calculated to appropriate or otherwise benefit from the good will the plaintiff had nurtured.” SecuraComm Consulting Inc. v. Securacom Inc., 166 F.3d 182, 187 (3d Cir.1999) (citations omitted). 23. Willfulness can be inferred by the fact that a defendant continued infringing behavior after being given notice. See Video Views, Inc. v. Studio 21 Ltd., 925 F.2d 1010, 1021 (7th Cir.1991), abrogation on other grounds recognized, Budget Cinema Inc. v. Watertower Associates, 81 F.3d 729 (7th Cir.1996); Choice Hotels Int'l Inc. v. Pennave Assoc., 159 F.Supp.2d 780, 782, 786 (E.D.Pa.2001). See also Columbia Pictures Industries Inc. vs. Sandrow, Civ.A. No. 87-3279, 1988 WL 28249, at *4 (E.D.Pa. Mar.23, 1988) (determining that continued activity after receipt of “cease and desist” letter was “more blameworthy”). 24. In the present ease, after receiving notice of the illegality and potential penalties of selling sunglasses bearing counterfeit Oakley Registered Trademarks, of articles bearing counterfeit Louis Vuitton Registered Trademarks, and after the summons and complaint were served upon defendants, the Defendants continued to" }, { "docid": "14498019", "title": "", "text": "inauthentic services bearing an authentic trademark is counterfeiting under 15 U.S.C. § 1117(b); and (2) that holdover franchisees are counterfeiters for purposes of 15 U.S.C. § 1117(b). (Doc. No. 224 at 11-16.) Defendants merely state that they oppose paying additional damages to Plaintiffs and do not address Section 35(b) of the Lanham Act. (See Doc. Nos. 227, 228.) Accordingly, this Court must first determine whether Defendants’ use of Plaintiffs’ trademarks amounts to counterfeiting. A split in authority has developed in federal jurisprudence over whether an ex-licensee’s continued use of a trademark constitutes counterfeiting for purposes of awarding treble damages and attorney’s fees under 15 U.S.C. § 1117(b). Compare U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1187 (6th Cir.1997), with State of Idaho Potato Comm’n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 772 (9th Cir.2005). In fact, district courts in this Circuit are also split on the matter. Compare Pennzoil-Quaker State Co. v. Smith, No. 05-1505, 2008 WL 4107159, at *22 (W.D.Pa. Sept. 2, 2008), with Days Inns Worldwide, Inc. v. Mayu & Roshan, LLC, No. 06-1581, 2007 WL 1674485, at **7-8 (D.N.J. June 8, 2007); Travelodge Hotels, Inc. v. Elkins Motel Associates, Inc., No. 03-799, 2005 WL 2656676, at *12 . (D.N.J. Oct. 18, 2005). Accordingly, without binding Third Circuit precedent, the Court turns to the statutory definition of a “counterfeit mark” and the legislative history behind 15 U.S.C. § 1117(b). The Court’s inquiry begins with an examination of the plain language of the statute. United States v. Berrios, 676 F.3d 118, 139 (3d Cir.2012). The Lanham Act generally defines a “counterfeit” mark as “a spurious mark which is identical with, or substantially indistinguishable from, a registered mark.” 15 U.S.C. § 1127; see also 15 U.S.C.A. § 1116(d)(1)(B). “Spurious” is not defined by the Lanham Act. In the absence of a statutory definition, the Court gives “the words used their ordinary meaning.” United States v. Diallo, 575 F.3d 252, 256 (3d Cir.2009) (interior quotations omitted). Black’s Law Dictionary defines “spurious,” in relevant part, as “[d]e-ceptively suggesting an erroneous origin[,] fake.” Spurious, Black’s Law Dictionary" }, { "docid": "7649524", "title": "", "text": "F.3d 910, 921 (9th Cir.2001). In order to invoke § 1117’s special civil monetary remedies against counterfeiting, IPC must establish that: (1) G & T intentionally used a counterfeit mark in commerce; (2) knowing the mark was counterfeit; (3) in connection with the sale, offering for sale, or distribution of goods; and (4) its use was likely to confuse or deceive. See, McCarthy § 25:15(citing 15 U.S.C. §§ 1114(l)(a), 1117(b)). In this context, the mark used by G & T was counterfeit if: (1) it was a non-genuine mark identical to IPC’s mark; (2) IPC’s mark was registered on the Principal Register for use on the same goods to which G & T applied the mark; (3) IPC’s mark was in use; and (4) G & T was not authorized to use IPC’s mark on potatoes. See id. (citing 15 U.S.C. §§ 1116(d)(1)(B), 1127). G & T acknowledges that it was using IPC’s registered mark on packages of potatoes without a license to do so. The issue of whether its behavior constituted counterfeiting therefore turns on whether its use of IPC’s certification mark was likely to cause confusion. G & T contends that its unlicensed use of IPC’s mark was not likely to cause confusion because the potatoes it packaged were genuine Idaho potatoes. It points out that courts have held that the unauthorized sale of genuine goods does not constitute trademark infringement because it does not cause consumer confusion. See, e.g., NEC Elec. v. CAL Cir. Abco, 810 F.2d 1506, 1509 (9th Cir.1987) (“[T]rademark law is designed to prevent sellers from confusing or deceiving ' consumers about the origin or make of a product, which confusion ordinarily does not exist when a genuine article bearing a true mark is sold.”). However, many cases have found a likelihood of confusion when a trademark owner was prevented from exercising quality control over the merchandise bearing its mark. See, e.g., Shell Oil Co. v. Commercial Petroleum, Inc., 928 F.2d 104, 107-08 (4th Cir.1991); El Greco Leather Prods. Co., Inc. v. Shoe World, Inc., 806 F.2d 392, 395 (2d Cir.1986). (“One of the" }, { "docid": "7649523", "title": "", "text": "no basis upon which the district court could properly have imposed a damages award of $50,000, we decline IPC’s invitation to remand the award for further explanation. Accordingly, we reverse the $50,000 damage award. C. Statutory Damages Award for Violation of the Lanham Act The district court concluded that G & T violated the Lanham Act by purchasing bags bearing IPC’s certification mark and using them to package potatoes after G & T’s license to use the mark had expired. It went on to award IPC $100,000 in statutory damages under 15 U.S.C. § 1117(c). Section 1117(c) allows a plaintiff to opt for statutory damages in cases involving the use of a counterfeit mark. 15 U.S.C. § 1117(c). G & T contends that statutory damages were improper in this case, thus raising the question of whether its use of IPC’s mark constituted counterfeiting or mere infringement. The district court’s determination that G & T’s unauthorized use amounted to counterfeiting is a legal conclusion subject to de novo review. Hume trix, Inc. v. Gemplus S.C.A., 268 F.3d 910, 921 (9th Cir.2001). In order to invoke § 1117’s special civil monetary remedies against counterfeiting, IPC must establish that: (1) G & T intentionally used a counterfeit mark in commerce; (2) knowing the mark was counterfeit; (3) in connection with the sale, offering for sale, or distribution of goods; and (4) its use was likely to confuse or deceive. See, McCarthy § 25:15(citing 15 U.S.C. §§ 1114(l)(a), 1117(b)). In this context, the mark used by G & T was counterfeit if: (1) it was a non-genuine mark identical to IPC’s mark; (2) IPC’s mark was registered on the Principal Register for use on the same goods to which G & T applied the mark; (3) IPC’s mark was in use; and (4) G & T was not authorized to use IPC’s mark on potatoes. See id. (citing 15 U.S.C. §§ 1116(d)(1)(B), 1127). G & T acknowledges that it was using IPC’s registered mark on packages of potatoes without a license to do so. The issue of whether its behavior constituted counterfeiting therefore turns" }, { "docid": "14498040", "title": "", "text": "D’Invesstissements de Motels with G6 Hospitality IP LLC.” (Doc. No. 67.) . In fact, the parties stipulated that Defendants did not completely remove “materials bearing the Motel 6 name or marks” until December 31, 2011. (Doc. No. 215 at Stipulation 31.) . On May 18, 2015, this Court granted Plaintiffs’ motion for default judgment as to Defendant HI Hotel Group for trademark infringement and breach of contract and as to Defendant 1450 Hospitality for trademark infringement under the Lanham Act. (Doc. No. 223.) . The determination of whether infringement \"amount[s] to counterfeiting is a legal conclusion” for the Court, not the jury. See State of Idaho Potato Comm'n, 425 F.3d at 720 (citing Humetrix, Inc. v. Gemplus S.C.A., 268 F.3d 910, 921 (9th Cir.2001)). . Plaintiffs argue that the Third Circuit affirmed the District Court for the Eastern District of Pennsylvania’s decision in Choice Hotels Int'l, Inc. v. Pennave Associates that “a franchisee who continued using the franchisor's 'Clarion Hotel’ marks after the franchise agreement was terminated was liable for statutory counterfeiting damages.” (Doc. No. 224 at 13-14.) However, neither the district court nor the Third Circuit opinion makes any reference or devotes any discussion to the circuit split identified in the cases above. See Choice Hotels Int'l, Inc. v. Pennave Associates, 159 F.Supp.2d 780, 786 (E.D.Pa.2001). In fact, appellant’s brief in Choice Hotels Int'l, Inc focused on the award of attorney’s fees and did not address the jurisprudential split concerning 15 U.S.C. § 1117(b). Brief for Appellant David S. Miller, Choice Hotels Int'l, Inc. v. Pennave Associates, 43 Fed.Appx. 517 (3d Cir.2002) (Nos. 01-1632, 01-1925, 01-2397), 2001 WL 34609294, at **2-4. . Section 1116(d) adds the additional requirement that a \"counterfeit mark” (1) \"is registered with the U.S. Patent and Trademark Office’s principal register” and (2) that \"the defendant must not have been authorized to use the mark at the time the goods or services were manufactured or produced.” All Star Championship Racing, Inc. v. O'Reilly Auto. Stores, Inc., 940 F.Supp.2d 850, 866 (C.D.Ill.2013) (citing 15 U.S.C.A. § 1116(d)(1)(B)). Section 1116(d) applies for purposes of assessing damages under 15" }, { "docid": "12433870", "title": "", "text": "a plaintiffs mark ... in a way that was calculated to appropriate or otherwise benefit from the good will the plaintiff had nurtured.” SecuraComm Consulting Inc. v. Securacom Inc., 166 F.3d 182, 187 (3d Cir.1999) (citations omitted). 23. Willfulness can be inferred by the fact that a defendant continued infringing behavior after being given notice. See Video Views, Inc. v. Studio 21 Ltd., 925 F.2d 1010, 1021 (7th Cir.1991), abrogation on other grounds recognized, Budget Cinema Inc. v. Watertower Associates, 81 F.3d 729 (7th Cir.1996); Choice Hotels Int'l Inc. v. Pennave Assoc., 159 F.Supp.2d 780, 782, 786 (E.D.Pa.2001). See also Columbia Pictures Industries Inc. vs. Sandrow, Civ.A. No. 87-3279, 1988 WL 28249, at *4 (E.D.Pa. Mar.23, 1988) (determining that continued activity after receipt of “cease and desist” letter was “more blameworthy”). 24. In the present ease, after receiving notice of the illegality and potential penalties of selling sunglasses bearing counterfeit Oakley Registered Trademarks, of articles bearing counterfeit Louis Vuitton Registered Trademarks, and after the summons and complaint were served upon defendants, the Defendants continued to infringe upon and counterfeit eight (8) of the registered Trademarks of the Plaintiffs. The failure of Defendants to appear at the Evidentiary Hearing held on June 5, 2002 and defend amounts to their conscious snubbing and blatant disregard of both the legal system and the rights of the Plaintiffs. The aforementioned conduct was willful. (See Findings of Fact ¶¶ 33, 42, 75-77, 79.) 25. Having so concluded, I turn to determining the appropriate amount of damages to award for this willful conduct. 26. The purpose of § 1117 of the Trademark Act is to take the incentive out of counterfeiting and strengthen the civil remedies against counterfeiters. See S.Rep. No. 177, 104th Cong.1995. In amending § 1117 to provide for recovery of statutory damages, Congress recognized that “a civil litigant may not be able to prove actual damages if a sophisticated, large-scale counterfeiter has hidden or destroyed information about his counterfeiting.” Id. It is often the case that counterfeiters’ records are frequently non-existent, inadequate or deceptively kept in order to willfully deflate the level of" }, { "docid": "4822525", "title": "", "text": "§ 1117(c) is “a counterfeit of a mark that is registered on the principal register in the United States Patent and Trademark Office for such goods or services sold, offered for sale, or distributed and that is in use, whether or not the person against whom relief is sought knew such mark was so registered.” § 1116(d)(l)(B)(i). Appellants contend that the district court erred because the jury instructions did not define the term “counterfeit mark.” This contention has no merit. Section 1116(d) requires that the mark in question be (1) a non-genuine mark identical to the registered, genuine mark of another, where (2) the genuine mark was registered for use on the same goods to which the infringer applied the mark, Idaho Potato Comm’n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 721 (9th Cir.2005). The district court’s Closing'Instructions and Supplemental Instruction Number 1 adequately explained this requirement. Appellants further urge that there was no evidence to support a finding that six of the marks were counterfeit. We reject this challenge to the sufficiency of, the evidence. Substantial evidence supports the jury’s verdict. See Johnson, 251 F.3d at 1227 (“A jury’s verdict must be upheld if it is supported by substantial evidence.”). 2. The Damage Awards Under 17 U.S.C. § 504(c), the statutory maximum for willful copyright .infringement is $150,000 “for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally.” ' Under 15 U.S.C. § 1117(c)(2), the statutory maximum for willful trademark infringement involving counterfeit marks now is $2,000,000 “per counterfeit mark per type óf goods or services sold, offered for sale, or distributed, as the court considers just.” But the statutory maximum at the outset of litigation in this case was $1,000,000, not $2,000,000, and the parties agreed to abide by the lower amount. The jury awarded statutory damages of $10,500,000 per defendant for willful contributory infringement of thirteen of Louis Vuitton’s trademarks and $300,000 per defendant for willful contributory infringement of two" }, { "docid": "509817", "title": "", "text": "214 F.3d at 664. Section 35 of the Lanham Act allows a successful plaintiff to recover an infringer’s profits, as well as damages, costs, and attorney fees. See 15 U.S.C. § 1117 (1994). The federal appellate courts that have addressed the issue uniformly apply the section 35 remedies to violations of sections 32 and 43(a). See Taco Cabana Int’l, Inc. v. Two Pesos, Inc., 932 F.2d 1113, 1126 (5th Cir.1991), aff'd, 505 U.S. 763, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). “The purpose of [section 35] is to take all the economic incentive out of trademark infringement.” Rolex Watch USA, Inc. v. Meece, 158 F.3d 816, 824 (5th Cir.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1808, 143 L.Ed.2d 1011 (1999) (quoting Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 621 (9th Cir.1993)). The Lanham Act, like the Copyright Act, provides for statutory damages under certain circumstances. See 15 U.S.C. § 1117(c) (1994). Section 1117(c) provides: In a case involving the use of a counterfeit mark (as defined in section 1116(d) of this title) in connection with the sale, offering for sale, or distribution of goods or services, the plaintiff may elect, at any time before final judgment is rendered by the trial court, to recover, instead of actual damages and profits under subsection (a) of this section, an award of statutory damages for any such use in connection with the sale, offering for sale, or distribution of goods or services in the amount of (1) not less than $500 or more than $100,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just; or (2) if the court finds that the use of the counterfeit mark was willful, not more than $1,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just. Id. The maximum statutory damage award for nonwillful infringement using a counterfeit mark is $100,000 per mark. The maximum statutory damage award for willful infringement using a counterfeit mark increases to $1,000,000 per counterfeit mark. Id." }, { "docid": "4822524", "title": "", "text": "late comer who deliberately copies the dress of his competitors already in the field, must at least prove that his effort has been futile.... He may indeed succeed in showing that it was; that, however bad his purpose, it will fail in execution; if he does, he will win.... But such an intent raises a presumption that customers will be deceived. HMH Publ’g Co. v. Brincat, 504 F.2d 713, 720 n. 12 (9th Cir.1974) (quoting My-T-Fine Corp. v. Samuels, 69 F.2d 76, 77 (2d Cir.1934)). See also Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1056 (9th Cir.1999) (“In light of the virtual identity of marks, if they were used with identical products or services likelihood of confusion would follow as a matter of course.”). c. Definition of “Counterfeit Mark” To claim statutory damages under 15 U.S.C. § 1117(c), Louis Vuitton had to prove that the goods trafficked by the direct infringers were “counterfeit” as that term is defined in § 1116(d). Section 1116(d) specifies that a counterfeit mark for purposes of § 1117(c) is “a counterfeit of a mark that is registered on the principal register in the United States Patent and Trademark Office for such goods or services sold, offered for sale, or distributed and that is in use, whether or not the person against whom relief is sought knew such mark was so registered.” § 1116(d)(l)(B)(i). Appellants contend that the district court erred because the jury instructions did not define the term “counterfeit mark.” This contention has no merit. Section 1116(d) requires that the mark in question be (1) a non-genuine mark identical to the registered, genuine mark of another, where (2) the genuine mark was registered for use on the same goods to which the infringer applied the mark, Idaho Potato Comm’n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 721 (9th Cir.2005). The district court’s Closing'Instructions and Supplemental Instruction Number 1 adequately explained this requirement. Appellants further urge that there was no evidence to support a finding that six of the marks were counterfeit. We reject this challenge to the" }, { "docid": "14498041", "title": "", "text": "224 at 13-14.) However, neither the district court nor the Third Circuit opinion makes any reference or devotes any discussion to the circuit split identified in the cases above. See Choice Hotels Int'l, Inc. v. Pennave Associates, 159 F.Supp.2d 780, 786 (E.D.Pa.2001). In fact, appellant’s brief in Choice Hotels Int'l, Inc focused on the award of attorney’s fees and did not address the jurisprudential split concerning 15 U.S.C. § 1117(b). Brief for Appellant David S. Miller, Choice Hotels Int'l, Inc. v. Pennave Associates, 43 Fed.Appx. 517 (3d Cir.2002) (Nos. 01-1632, 01-1925, 01-2397), 2001 WL 34609294, at **2-4. . Section 1116(d) adds the additional requirement that a \"counterfeit mark” (1) \"is registered with the U.S. Patent and Trademark Office’s principal register” and (2) that \"the defendant must not have been authorized to use the mark at the time the goods or services were manufactured or produced.” All Star Championship Racing, Inc. v. O'Reilly Auto. Stores, Inc., 940 F.Supp.2d 850, 866 (C.D.Ill.2013) (citing 15 U.S.C.A. § 1116(d)(1)(B)). Section 1116(d) applies for purposes of assessing damages under 15 U.S.C. § 1117(b). . In addition to the aforementioned definition of \"trademark counterfeiting” and “spurious,” the legislative history's rationales for exempting “overrun goods” and \"parallel imports” from the term “counterfeit mark” reinforces the notion that counterfeiting refers to the \"use of spurious marks,” as opposed to the unauthorized use of genuine marks. See Sen. Rep. No. 98-526, at 3, 10 (1984); Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976, H-12079 (1984). . The Court also declines Plaintiffs’ request for treble damages under 15 U.S.C. § 1117(a). (Doc. No. 224 at 18.) \"Section 1117(a) provides that 'the court may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding three times such amount.”’ U.S. Structures, Inc., 130 F.3d at 1191 (emphasis added) (quoting 15 U.S.C. § 1117(a)). The Court is not persuaded that the circumstances of this case warrant trebled damages under 15 U.S.C. § 1117(a). See, e.g., New York State Soc. of Certified Pub. Accountants v. Eric Louis Associates," }, { "docid": "3193484", "title": "", "text": "FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT SCHILLER, District Judge. On August 6, 1998, Plaintiff Choice Hotels International, Inc. (“Choice Hotels”) brought this action against Defendants Pennave Associates, Inc. (“Pennave”) and David S. Miller alleging trademark infringement, unfair competition, false designation and description, and misappropriation of advertising ideas or style of doing business under federal and state law. Plaintiff seeks injunctive relief as well as the Defendants’ profits, damages to accomplish corrective advertising, and attorneys’ fees and costs. On October 13, 2000, this Court entered a default judgment against Pennave in the amount of $389,736.84. After a trial on the merits and consideration of memoranda filed by both parties on the issues of damages, I enter judgment in favor of Plaintiff and against Defendant Miller. I.FINDINGS OF FACT A. BACKGROUND 1. Choice Hotels International, Inc. has been and is now extensively engaged in the business of the sale and marketing in interstate commerce of a wide variety of hotels and other services. 2. Since 1965, Choice Hotels and its predecessors in interest have operated and franchised hotels under a group of service marks, trademarks and trade names (the “Marks”). Said Marks have been widely advertised and services have been extensively offered under the Marks throughout the United States. The Marks have become, through widespread and favorable public acceptance and recognition, an asset of substantial value as a symbol of Choice Hotels, its quality products and its goodwill. 3. Choice Hotels owns and uses the Clarion mark, among others, which is registered on the Principal Register of the United States Patent and Trademark Office for hotel and motel services. 4. On or about October 31, 1996, Choice Hotels and Pennave entered into a franchise agreement and addendum (the “Franchise Agreement”) regarding a hotel (“Hotel”) located in Fort Washington, Pennsylvania. Mr. Miller executed the Franchise Agreement on behalf of Pennave as both President and Secretary. 5. Mr. Miller is the sole shareholder in Pennave. At the time that Mr. Miller signed the Franchise Agreement, he was the only officer of Pennave. Pennave had no board of directors. At the time of" }, { "docid": "12433862", "title": "", "text": "cybersquatting (cyberpiracy) pursuant to the provisions of 15 U.S.C. §§ 1121 and 1125(d)(1)(A) and 28 U.S.C. §§ 1331 and 1338(a). (Comp. ¶ 2.) 4. This Court has supplemental jurisdiction over the claims in this Complaint which arise under the statutory and common law of the State of Pennsylvania pursuant to 28 U.S.C. § 1367(a), because the state law claims are so related to the federal claims that they form part of the same case or controversy and derive from a common nucleus of operative fact. (Comp. ¶ 3.) 5. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b). (Comp. ¶ 4.) Liability 6. Federal trademark infringement, 15 U.S.C. § 1114(l)(a), and a false designation of origin claim, known more broadly as federal unfair competition, 15 U.S.C. § 1125(a)(1)(A), are measured by identical standards. See A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198, 210 (3d Cir.2000). To prove either form of the Lanham Act violation, the record must demonstrate that (1) plaintiff has a valid and legally protectable mark; (2) it owns the mark; and (3) the defendant’s use of the mark to identify goods or services causes a likelihood of confusion. See id. The first two requirements are satisfied when a federally registered mark has become incontestable. See Playboy Enter., Inc. v. Universal Tel-A-Talk, Inc., No. Civ.A. 96-6961, 1998 WL 288423, at *3 (E.D.Pa. June 3, 1998) (citing Fisons Horticulture, Inc. v. Vigoro Indus., Inc., 30 F.3d 466 (3d Cir.1994)). 7. To establish federal trademark counterfeiting, the record must show that (1) the defendants infringed a registered trademark in violation of the Lanham Act, 15 U.S.C. § 1114(l)(a), and (2) intentionally used the trademark knowing that is was counterfeit or was willfully blind to such use. See Playboy Enter., Inc. v. Univer sal Tel-A-Talk, Inc., No. Civ.A. 96-6961, 1998 WL 767440, at *7 (E.D.Pa. Nov.3, 1998). 8. Pursuant to the Lanham Act, the term counterfeit mark means “a mark that is registered on the Principal Register in the United States Patent and Trademark Office for such goods or services sold, offered for" }, { "docid": "14498039", "title": "", "text": "not provide for prejudgment interest. Moscow Distillery Cristall v. Pepsico, Inc., 141 F.3d 1177 (9th Cir.1998) (“Prejudgment interest is available under the Lanham Act only for counterfeiting _”); see also Georgia-Pac. Consumer Prods. LP v. von Drehle Corp., 781 F.3d 710, 722 (4th Cir.2015) (finding no textual support for the conclusion that Section 35(a) authorizes prejudgment interest in an “exceptional” case). Because this case does not involve counterfeiting, the Court is not persuaded that the circumstances warrant an award of prejudgment interest. Accordingly, the Court will deny Plaintiffs’ request for prejudgment interest. III. CONCLUSION For the reasons stated above, Plaintiffs’ petition for treble damages, attorney’s fees, costs and prejudgment interest will be granted in part and denied in part. An order consistent with this memorandum follows. . On January 30, 2013, the parties stipulated and agreed that all pleadings and docket entries in this matter were to be \"amended to replace plaintiff Accor Franchising North America, LLC with G6 Hospitality Franchising LLC, Accor North America, Inc. with G6 Hospitality LLC and Societe de Participations et D’Invesstissements de Motels with G6 Hospitality IP LLC.” (Doc. No. 67.) . In fact, the parties stipulated that Defendants did not completely remove “materials bearing the Motel 6 name or marks” until December 31, 2011. (Doc. No. 215 at Stipulation 31.) . On May 18, 2015, this Court granted Plaintiffs’ motion for default judgment as to Defendant HI Hotel Group for trademark infringement and breach of contract and as to Defendant 1450 Hospitality for trademark infringement under the Lanham Act. (Doc. No. 223.) . The determination of whether infringement \"amount[s] to counterfeiting is a legal conclusion” for the Court, not the jury. See State of Idaho Potato Comm'n, 425 F.3d at 720 (citing Humetrix, Inc. v. Gemplus S.C.A., 268 F.3d 910, 921 (9th Cir.2001)). . Plaintiffs argue that the Third Circuit affirmed the District Court for the Eastern District of Pennsylvania’s decision in Choice Hotels Int'l, Inc. v. Pennave Associates that “a franchisee who continued using the franchisor's 'Clarion Hotel’ marks after the franchise agreement was terminated was liable for statutory counterfeiting damages.” (Doc. No." }, { "docid": "12433863", "title": "", "text": "mark; (2) it owns the mark; and (3) the defendant’s use of the mark to identify goods or services causes a likelihood of confusion. See id. The first two requirements are satisfied when a federally registered mark has become incontestable. See Playboy Enter., Inc. v. Universal Tel-A-Talk, Inc., No. Civ.A. 96-6961, 1998 WL 288423, at *3 (E.D.Pa. June 3, 1998) (citing Fisons Horticulture, Inc. v. Vigoro Indus., Inc., 30 F.3d 466 (3d Cir.1994)). 7. To establish federal trademark counterfeiting, the record must show that (1) the defendants infringed a registered trademark in violation of the Lanham Act, 15 U.S.C. § 1114(l)(a), and (2) intentionally used the trademark knowing that is was counterfeit or was willfully blind to such use. See Playboy Enter., Inc. v. Univer sal Tel-A-Talk, Inc., No. Civ.A. 96-6961, 1998 WL 767440, at *7 (E.D.Pa. Nov.3, 1998). 8. Pursuant to the Lanham Act, the term counterfeit mark means “a mark that is registered on the Principal Register in the United States Patent and Trademark Office for such goods or services sold, offered for sale, or distributed and that is in use, whether or not the person against whom relief is sought knew such mark was so registered.” 15 U.S.C. § 1116(d)(l)(B)(i). A “counterfeit” is defined as “a spurious mark which is identical with, or substantially indistinguishable from, a registered mark.” 15 U.S.C. § 1127. In a more general sense, counterfeiting has been defined as “ ‘the act of producing or selling a product with a sham trademark that is an intentional and calculated reproduction of the genuine trademark.’ ” Playboy, 1998 WL 767440, at *7 (quoting Thomas McCarthy, McCarthy on Trademarks § 25:10 (3d ed.1997)). 9. The only material distinction between the standard for federal trademark counterfeiting and the standard for showing trademark infringement is that in order to obtain treble or statutory damages for a counterfeiting claim, as discussed in greater detail below, a plaintiff must show that the defendant intentionally used the plaintiffs trademark, knowing it was a counterfeit. See Playboy Enter., Inc. v. Universal Tel-A-Talk, Inc., No. Civ.A. 96-6961, 1998 WL 288423, at *2 (E.D.Pa." }, { "docid": "14498017", "title": "", "text": "Section 35 of the Lanham Act distinguishes, in particular, the monetary relief for “counterfeiting” from mere trademark infringement. State of Idaho Potato Comm’n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 720 (9th Cir.2005). As the United States Court of Appeals for the Fourth Circuit summarized in Georgia-Pacific Consumer Products LP: Section 1117(a), which applies generally to trademark infringement cases ... authorizes a plaintiff to recover (1) the defendant’s profits based simply on proof of the defendant’s sales; (2) the plaintiff’s damages; (3) court costs; and (4) in exceptional cases, attorneys fees ... Section 1117(b), on the other hand, mandates the award of treble profits or treble damages for a defendant’s “use of [a] counterfeit mark” if the infringement consists of (1) “intentionally using a mark or designation, knowing such mark or designation is a counterfeit mark,” or (2) “providing goods or services [using such mark], with the intent that the recipient of the goods or services would put the goods or services to use in committing the violation.” 781 F.3d at 717-18 (citing 15 U.S.C. § 1117). Thus, if a defendant’s use of a “counterfeit mark” consists of “intentionally using a mark or designation, [and] knowing such mark or designation is a counterfeit mark,” the district court is required to award treble “profits or damages, whichever amount is greater, together with a reasonable attorney’s fees” absent extenuating circumstances. Georgia-Pac. Consumer Prods. LP, 781 F.3d at 717-18 (quoting 15 U.S.C. § 1117(b)); accord Babbit Elecs., Inc. v. Dynascan Corp., 38 F.3d 1161, 1183 (11th Cir.1994) (interior citations omitted). The Court will first turn to whether the award of treble damages and attorney’s fees is mandated under 15 U.S.C. § 1117(b). A. Mandatory Treble Damages and Attorney’s Fees under 15 U.S.C. § 1117(b) Plaintiffs contend that they are entitled, under 15 U.S.C. § 1117(b), to treble damages and reasonable attorney’s fees on their Lanham Act claims against all corporate and individual defendants, with the exception of Defendant Zaver. (Doc. No. 224 at 11-18, 22.) Plaintiffs argue that Section 1117(b) applies to the instant case because (1) the sale of" }, { "docid": "14498020", "title": "", "text": "v. Mayu & Roshan, LLC, No. 06-1581, 2007 WL 1674485, at **7-8 (D.N.J. June 8, 2007); Travelodge Hotels, Inc. v. Elkins Motel Associates, Inc., No. 03-799, 2005 WL 2656676, at *12 . (D.N.J. Oct. 18, 2005). Accordingly, without binding Third Circuit precedent, the Court turns to the statutory definition of a “counterfeit mark” and the legislative history behind 15 U.S.C. § 1117(b). The Court’s inquiry begins with an examination of the plain language of the statute. United States v. Berrios, 676 F.3d 118, 139 (3d Cir.2012). The Lanham Act generally defines a “counterfeit” mark as “a spurious mark which is identical with, or substantially indistinguishable from, a registered mark.” 15 U.S.C. § 1127; see also 15 U.S.C.A. § 1116(d)(1)(B). “Spurious” is not defined by the Lanham Act. In the absence of a statutory definition, the Court gives “the words used their ordinary meaning.” United States v. Diallo, 575 F.3d 252, 256 (3d Cir.2009) (interior quotations omitted). Black’s Law Dictionary defines “spurious,” in relevant part, as “[d]e-ceptively suggesting an erroneous origin[,] fake.” Spurious, Black’s Law Dictionary (10th ed. 2014). By indicating an erroneous or fake origin, the Lanham Act’s use of the term “spurious” — at first glance — lends support to the Sixth Circuit’s conclusion that “the [unauthorized] use of an original trademark” is not counterfeiting. U.S. Structures, Inc., 130 F.3d at 1192. However, the Court’s inquiry of the statute’s plain language does not resolve whether a “genuine trademark [can] become spurious when it is used on counterfeit goods.” 2-5 Gilson on Trademarks § 5.19 (2015) (emphasis added). In other words, when Defendants continued to use the genuine Motel 6 trade marks after the rebranding and property-sale, did the product or service “itself become[ ] a ’counterfeit’ just as it would if an imitation of the [Motel 6] mark” were used? Westinghouse Elec. Corp. v. Gen. Circuit Breaker & Elec. Supply Inc., 106 F.3d 894, 900 (9th Cir.1997). Accordingly, because the statutory meaning of “counterfeiting” is unclear as applied to the instant case, the Court turns to 15 U.S.C. § 1117(b)’s legislative history. In re Cohen, 106 F.3d 52, 57" }, { "docid": "7649522", "title": "", "text": "some of its records of sales and purchases of Idaho potatoes, the district court’s factual findings contain no indication that G & T intentionally destroyed records with knowledge that those records were relevant to this litigation. Cf. United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir.2002) (holding that defendants did not engage in spoliation of evidence when records were intentionally destroyed in accordance with a document retention policy and state regulations before litigation commenced). Our review of the record does not reveal any evidence supporting the conclusion that G & T intentionally destroyed evidence and IPC points to none. The record is thus insufficient to allow us to affirm the award as a discovery sanction. 2. Civil Penalty IPC also argues that we can affirm the award as a civil penalty under Idaho Code § 22-1213. As discussed above, § 22-1213 does not authorize a court to impose the civil penalties it creates. We therefore cannot affirm the award as a § 22-1213 civil penalty. Because our review of the record reveals no basis upon which the district court could properly have imposed a damages award of $50,000, we decline IPC’s invitation to remand the award for further explanation. Accordingly, we reverse the $50,000 damage award. C. Statutory Damages Award for Violation of the Lanham Act The district court concluded that G & T violated the Lanham Act by purchasing bags bearing IPC’s certification mark and using them to package potatoes after G & T’s license to use the mark had expired. It went on to award IPC $100,000 in statutory damages under 15 U.S.C. § 1117(c). Section 1117(c) allows a plaintiff to opt for statutory damages in cases involving the use of a counterfeit mark. 15 U.S.C. § 1117(c). G & T contends that statutory damages were improper in this case, thus raising the question of whether its use of IPC’s mark constituted counterfeiting or mere infringement. The district court’s determination that G & T’s unauthorized use amounted to counterfeiting is a legal conclusion subject to de novo review. Hume trix, Inc. v. Gemplus S.C.A., 268" } ]

[ { "docid": "14903519", "title": "", "text": "amount in controversy greater than $75,000. See 28 U.S.C. § 1332. Plaintiffs concede that complete diversity exists, but they contend that Defendant’s notice of removal was untimely because it was filed more than 30 days after service of the initial pleadings. See 28 U.S.C. § 1446(b). Here, the grounds for removal are not apparent on the face of the complaint because the initial pleading did not set forth the domicile of any of the parties. When “the grounds for removal are not apparent on the face of the complaint,” Trustees of Masonic Hall & Asylum Fund v. Pricewaterhousecoopers LLP, Nos. 08 Civ. 10494, 08 Civ. 10495, 2009 WL 290543, at *6 (S.D.N.Y. Feb. 6, 2009), § 1446(b) provides that a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable---- 28 U.S.C. § 1446(b). “[A]n oral assertion is insufficient to start the 30-day clock for a defendant’s removal petition .... ” Quintana v. Werner Enters., Inc., No. 09 Civ. 7771, 2009 WL 3756334, at *1 (S.D.N.Y. Nov. 2, 2009). Rather, the clock begins to run when “an amended pleading, motion, order or other paper ” discloses facts giving rise to removability. Id. (emphasis added). It was not until Plaintiffs filed their “Reply Affidavits” on July 27, 2011 (see Docket No. 1, Exs. E & H), that the papers on file disclosed facts sufficient to determine that complete diversity exists. Consequently the 30-day clock did not begin to run until July 27, 2011. Defendant timely filed his notice of removal thirty days later on August 26, 2011. The Court therefore denies Plaintiffs’ motion to remand. Turning to the motion to transfer, the Court finds that all or most of the material events, documents, persons and potential witnesses related to this action are located in Savannah, Georgia. This action arises out of Defendant’s alleged misappropriation and mismanagement of assets held in an irrevocable, lifetime" } ]

[ { "docid": "4185423", "title": "", "text": "procedures set forth in the general removal statute. If Congress had intended to render that statute inapplicable and to leave FDIC removal procedures up to the discretion of individual judges, surely it would have said so explicitly. See MTech Corp. v. FDIC, 729 F.Supp. 1134, 1136 (N.D.Tex.1990) (“If Congress had sought to insulate the FDIC from § 1446(b)’s time restrictions, it could have explicitly said so.”). We think our discussion makes it clear that the only plausible explanation for the deletion of the “any procedure for removal” phrase is that it was deemed redundant. In the absence of any other specified procedure, logic dictates that FDIC removals continue to be governed by the same general removal principles that govern any other removal. We therefore conclude that the district court correctly determined that the 30-day time limitation for removal contained in § 1446(b) applied in this case. B. Was the FDIC’s removal timely? Our more difficult task in this case is to determine when the limitations period began to run. Pursuant to § 1446(b), a case that was not initially removable must be removed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. ... The FDIC’s entry into this case in the place of MerchantsBank is what made the action removable. See 12 U.S.C. § 1819(b)(2)(A). The precise question before us is what constitutes sufficient entry to trigger the 30-day clock. Defendant Hicks, whose position was adopted by the district court, contends that the clock started ticking on May 18, 1990, when the FDIC was appointed receiver for MerchantsBank. Under this approach, the petition submitted on August 14 was too late. The FDIC, however, claims that a removal petition is timely so long as it is filed within 30 days after the Corporation formally intervenes or is formally substituted into an action. It further argues that we are bound by a prior holding to that effect in FDIC" }, { "docid": "21416097", "title": "", "text": "Ins. Co. v. Knowles, — U.S. —, 133 S.Ct. 1345, 1348, 185 L.Ed.2d 439 (2013) (quoting 28 U.S.C. § 1332(d)(2), (d)(5)(B)), In removing under CAFA, the defendant “has the burden of demonstrating, by a preponderance of the evidence, that the amount in controversy requirement has been met.” Smith, 505 F.3d at 404 (internal quotation, marks omitted). Defendants removing under CAFA must comply with the time limits of the general removal statute, 28 U.S.C. § 1446, except that the one-year deadline for removing cases under diversity jurisdiction does not apply to cases removed under CAFA. See 28 U.S.C. § 1453. Section 1446(b) sets forth two thirty-day windows for removal. See 28 U.S.C. § 1446(b)(1) and (3). Under § 1446(b)(1), a defendant has thirty days to file a notice of removal' “after the- receipt by the defendant ... of a' copy of the initial pleading setting forth the claim for relief.” However, “if the .case stated .by the initial pleading is not removable,” § 1446(b)(3) provides that “a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” Sections 1446(b)(1) and (b)(3) do not specify, however, what “information [ ] must be included in a plaintiffs initial pleading or other paper to. trigger the 30-day periods ... or how a defendant should ‘ascertain’ removability.” Cutrone v. Mortg. Elec. Registration, Sys., Inc., 749 F.3d 137, 142 (2d Cir.2014). This case requires us to address two important questions regarding the thirty-day windows of § 1446(b) in CAFA cases. Fust, we must determine what papers, if any, Visionworks “received” such that the thirty-day clock of § 1446(b)(3) began. Second, we must determine whether § 1446(b)(3) provides defendants with one thirty-day time period within which they must remove the action, even if the defendant later ascertains grounds for CAFA jurisdiction after an original thirty-day window has expired. We consider each of these questions in turn. A. When, If" }, { "docid": "21416099", "title": "", "text": "Ever, Did the 30-Day Removal Window Begin for Vision-works to Remove Under CAFA? Visionworks first contends that the district court - erred in finding that it could have first ascertained that the case was removable under CAFA from the Amended Complaint or, alternatively, from Grais-ér’s September 18, 2015 letter. We agree with Visionworks. Our Circuit has not had the opportunity to consider when the thirty-day removal clock begins for a defendant seeking to remove under CAFA. Moreover, our published case law regarding the thirty-day removal clocks in non-CAFA cases is extremely limited. Accordingly, we take this opportunity to clarify when the thirty-day windows, of - § 1446(b) are triggered, in CAFA cases. Both parties rely on Holston v. Carolina Freight Carriers Corp., No. 90-1358, 1991 WL 112809 (6th Cir. June 26, 1991), as establishing the standard for determining when the thirty-day removal period began for Visionworks. See Appellant Br. at 13; Appellee Br. at 6. Holston involved a dispute over when the defendant first ascertained'- that the plaintiffs complaint stated a federal question — as opposed to a purely state-law claim — such that the removal window began to run. Id. at *2. Carolina Freight argued that, given the statutory language of § 1446(b), “the information establishing removal must come from, a source outside of defendant’s control.” Id. Holston - argued, by contrast, that the thirty-day period •= may begin “when a defendant has information in its possession that would lead it to believe without speculation that the case is removable.” Id. We agreed with Holston and held that the thirty-day period- begins “running from the date that a defendant has solid and unambiguous information that the case is removable, even if that information is solely within [the defendant’s] own possession.?’ Id. at *3. We noted that this reading was consistent with the term “received” in the statute, because even if á “defendant may have the papers in its possession as of the filing of the suit,” a defendant “does' not receive notice of the facts contained therein until it reviews those papers in connection with the suit.” Id. For" }, { "docid": "15860146", "title": "", "text": "to federal court. It did not become removable until the nonconsenting Defendant was dismissed from the case. The second paragraph of § 1446(b) reads: If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant ... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. (Emphasis added). The words “other paper” in the above-quoted provision have been broadly interpreted by courts and has allowed for a wide array of documents to serve as a trigger commencing a new thirty-day period for previously unremovable cases that become removable. See 14C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, FedeRal Practice And Procedure: Jurisdiction 3d § 3732 (1998). “Other paper” that has signified the new-found removability of a case and initiated the thirty-day period includes letters from opposing counsel, correspondence between parties, affidavits, proposed jury instructions, answers to interrogatories, motions for summary judgment, and documents produced in discovery. See, e.g., Miller v. BAS Tech. Employment Placement Co., 130 F.Supp.2d 777 (D.W.Va.2001) (first defendant’s motion for summary judgment was “other paper,” the filing of which provided notice to second defendant that the action was removable under diversity jurisdiction on basis that nondiverse defendant was fraudulently joined); Hines v. AC & S, Inc., 128 F.Supp.2d 1003 (N.D.Tex.2001) (noting that “other paper” can include answers to interrogatories, responses to requests for admissions, deposition testimony, and documents produced in discovery); Polk v. Sentry Ins., 129 F.Supp.2d 975 (D.Miss.2000) (letter between attorneys confirming that plaintiffs dismissal of nondiverse defendants was voluntary is “other paper” sufficient to trigger time to remove). In Hessler v. Armstrong World Indus., Inc., 684 F.Supp. 393 (D.Del.1988), the court found that the thirty-day period began to run when the defendants received notice, by letters from opposing counsel and by statements made in state court, that the nondiverse defendants had settled with the plaintiffs. These letters signified to counsel that the once nonremovable case had now" }, { "docid": "8916674", "title": "", "text": "on November 14, 2003, the plaintiff filed the present Motion for Entry of Judgment by Default Against Defendants, Alternatively Motion for Remand. The defendants have filed a response and the motion is ripe for decision. II The plaintiff contends that the defendants failed to timely file their Notice of Removal and as a result the case must be remanded to state court. A notice of removal must be filed within thirty days of receipt by the defendant through formal service of the state court process. See 28 U.S.C.A. § 1446(b) (West 1994); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) (holding that receipt of “courtesy copy” of suit papers does not start thirty-day period). The plaintiff contends that the removal clock started to run when the Commissioner, the defendants’ statutory agent, received the suit papers on September 17, and thus the notice of removal, filed on October 22, was untimely. While there is no decision by the Supreme Court or the Fourth Circuit on point, the overwhelming view among other courts is that service on a statutory agent such as the Commissioner does not start the running of the thirty-day removal period. See Lilly v. CSX Transp., Inc., 186 F.Supp.2d 672, 673-74 (S.D.W.Va.2002) (reviewing cases). I agree with the reasoning of those courts that because statutory agents for service of process are not true agents, it would be contrary to the plain meaning of the removal statute to limit a defendant’s removal period before actual receipt of the suit papers. See 14C Charles Alan Wright et al., Federal Practice and Procedure § 3732, at 288-89 (3d ed.1998) (explaining rationale of majority view). It is obvious that the receipt of process by the defendant came some time after September 25, the date of mailing by the Commissioner. While the date of actual receipt is not disclosed by the record, the Notice of Removal was filed within thirty days of September 25. I thus find that it was timely filed and deny the motion to remand. Ill Under Virginia procedure, the" }, { "docid": "23006395", "title": "", "text": "621 F.Supp. 1005, 1008 (D.Nev.1985); see also 28 U.S.C.A. § 1446 (Commentary on 1988 Revision) (“The [‘other paper’] that reveals the phoniness of the nondiverse defendant’s joinder may be, e.g., the deposition of some nonparty witness.”); 14C Charles Alan Wright et al., Federal Practice and Procedure § 3732 at 300-10 (3d ed. 1998) (“The federal courts have given the reference to ‘other paper’ an embracive construction.... Various discovery documents such as depositions ... usually are accepted as ‘other paper’ sources that initiate a new thirty-day period of remova-bility.”) (footnotes omitted). See also S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir.1996) (holding that a deposition transcript is an “other paper”). For several reasons, we adopt the majority rule. The intent of the statute is to “mak[e] sure that a defendant has an opportunity to assert the congressionally bestowed right to remove upon being given notice in the course of the case that the right exists.” Wright, et. al, supra at 306. Unquestionably, information elicited during a deposition may serve that purpose. For purposes of the removal statute, deposition testimony stands on equal footing with written forms of discovery, such as interrogatories and requests for information. A defendant cannot forgo one recognized means of obtaining information related to jurisdiction for another and then argue that the manner in which the information was provided, which was in compliance with defendant’s request, precludes imputing knowledge of the information to the defendant. Such manipulation would provide a windfall for the defendant which is clearly contravened by the removal statute’s emphasis on effecting removal as soon as possible. Golden Apple Management Co. v. GEAC Computers, Inc., 990 F.Supp. 1364, 1368 (M.D.Ala.1998) (citation omitted). We hold that deposition testimony, taken under state rules of procedure during the course of litigation in the state court, qualifies as an “other paper” under § 1446(b). Because the applicable rule of civil procedure does not provide a deadline for obtaining a transcript of a deposition, see Fed.R.Civ.P. 30(b)(2), (f)(2), the date of receipt of a transcript may also be subject to manipulation. Accordingly, the removal period commences" }, { "docid": "15860151", "title": "", "text": "arising under the Constitution, laws or treaties of the United States.\" In his Complaint, Plaintiff asserts that Defendants violated his Fourth Amendment rights. See Amended Complaint attached to Defendants’ Notice of Removal (Pleading No. 1) at ¶¶ 30-32. . Section 1446(b) reads: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant ... of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based .... If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant ... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable .... . See also Broderick v. Dellasandro, 859 F.Supp. 176 (E.D.Pa. 1994) (attorney's letter advising of client's changed residence that created diversity jurisdiction was \"other paper” such that it triggered thirty-day time period for removal under removal statute). . This Court finds the voluntary dismissal by Plaintiff of a nonconsenting Defendant to be analogous to the situation where a plaintiff voluntarily dismisses a nondiverse defendant, thereby rendering the action removable. \"A change in the parties to the state action, such as the plaintiff’s voluntary dismissal of those defendants whose presence in the action destroyed complete diversity of citizenship, may make a previously unremovable action removable.” Wright, Miller & Cooper, Federal Practice And Procedure: Jurisdiction 3d § 3732 (1998). It is undisputed that this latter situation creates removability where there was none before. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 69, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) (citing 28 U.S.C. § 1446(b))(where case not originally removable, defendant who receives a pleading or other paper indicating dismissal of a nondi-verse party may remove the case to federal court within 30 days of receiving such information). A nonconsenting defendant creates a barrier to removability just as does a nondi-verse defendant. Although the former is a procedural barrier" }, { "docid": "21038018", "title": "", "text": "See, e.g., Riggs v. Continental Baking Co., 678 F.Supp. 236, 238 (N.D.Cal.1988) (“The elements of remova-bility must be specifically indicated in official papers before the statutory period begins to run.”); Gilardi v. Atchison, Topeka & Santa Fe Railway Co., 189 F.Supp. 82 (N.D.Ill.1960) (where initial pleading failed to state facts indicating whether case was removable, court held defendant was entitled to remove after receipt of paper from which removability was first ascertained); Morschauser v. The American News Company, 158 F.Supp. 517, 520 (S.D.N.Y.1958) (in diversity jurisdiction case, “[s]ince neither initial pleading nor any subsequent paper, until amended complaint, disclosed where any plaintiff lived ..., the case was not removable until ... amended complaint was received”). The Fifth and Ten Circuits have refused to impose a duty to investigate on a removing defendant. In Leffall v. Dallas Independent School District, 28 F.3d 521, 524-25 (5th Cir.1994), plaintiff filed a lawsuit after her son was killed during a school dance. Without referring to any statutes, plaintiff alleged that the school knew that students often carried weapons but failed to take adequate precautions. Plaintiff then amended her complaint to include a claim pursuant to 42 U.S.C. § 1988 and defendants removed. The district court denied plaintiffs motion to remand on the basis of untimely removal. In affirming the lower court, the Fifth Circuit rejected plaintiffs argument that the 30-day clock “should begin to run when a plaintiff files a pleading that is indeterminate as to remov-ability if the defendant would know in the exercise of due diligence that the case is removable.” Id. at 525 (citation omitted). The court announced that the removal clock began to run only when the defendants received a pleading that “revealed on its face that [the plaintiff] was asserting a cause of action based on federal law.” Id. In Akin v. Ashland Chemical Company, 156 F.3d 1030 (10th Cir.1998), cert. denied, 526 U.S. 1112, 119 S.Ct. 1756, 143 L.Ed.2d 788 (1999), plaintiffs filed a toxic tort case for alleged injuries sustained while working at an Air Force base. Defendants removed after receipt of answers to interrogatories beyond the" }, { "docid": "23006394", "title": "", "text": "is able “to intelligently ascertain removability so that in his petition for removal he can make a simple and short statement of the facts.” DeBry v. Transamerica Corp., 601 F.2d 480, 489 (10th Cir.1979). “If the statute is going to run, the notice ought tp be unequivocal. It should not be one which may have a double design.” Id. Moreover, the circumstances permitting removal must normally come about as a result of a voluntary act on the part of the plaintiff. See id. at 486-88. To analyze the suitability of plaintiffs’ proposed date, we must first determine whether a deposition constitutes an “other paper” within the meaning of § 1446(b). A majority of the federal district courts have not required receipt of an actual written document. Instead, they have held that a discovery deposition does satisfy the requirement. See, e.g., Effinger v. Philip Morris, Inc., 984 F.Supp. 1043, 1047-48 (W.D.Ky.1997) (collecting cases); Haber v. Chrysler Corp., 958 F.Supp. 321, 326 (E.D.Mich.1997); Riggs v. Continental Baking Co., 678 F.Supp. 236, 238 (N.D.Cal.1988); Smith v. International Harvester, 621 F.Supp. 1005, 1008 (D.Nev.1985); see also 28 U.S.C.A. § 1446 (Commentary on 1988 Revision) (“The [‘other paper’] that reveals the phoniness of the nondiverse defendant’s joinder may be, e.g., the deposition of some nonparty witness.”); 14C Charles Alan Wright et al., Federal Practice and Procedure § 3732 at 300-10 (3d ed. 1998) (“The federal courts have given the reference to ‘other paper’ an embracive construction.... Various discovery documents such as depositions ... usually are accepted as ‘other paper’ sources that initiate a new thirty-day period of remova-bility.”) (footnotes omitted). See also S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir.1996) (holding that a deposition transcript is an “other paper”). For several reasons, we adopt the majority rule. The intent of the statute is to “mak[e] sure that a defendant has an opportunity to assert the congressionally bestowed right to remove upon being given notice in the course of the case that the right exists.” Wright, et. al, supra at 306. Unquestionably, information elicited during a deposition may serve that purpose. For" }, { "docid": "9852662", "title": "", "text": "disagreed with the “characterizations and assumptions contained within the [August 9] letter.” R. at 87. Then, at the August 30 hearing, Berera’s counsel conceded that the First Adjustment corresponded to Mesa’s share of FICA taxes. The Complaint’s artful allegations, coupled with this clarifying concession at a formal hearing, gave Mesa solid and unambiguous information that it could remove the case. August 30 falls well after the August 12 commencement of § 1446(b)(3)’s 30-day period. The remaining issue is whether the August 9 letter, the August 30 hearing transcript, or both, are “other papers” under § 1446(b)(3). Because we hold that the hearing transcript is an “other paper” under § 1446(b)(3), we decline to decide whether the letter is as well. We have yet to fully expound the meaning of “other paper” under § 1446(b)(3). One treatise states that this term is “expansive” and includes “a wide array of documents within its scope.” Wright et al., supra, § 3731. Thus, as a general matter, “documents such as deposition transcripts, answers to interrogatories and requests for admissions, ... amendments to ad damnum clauses of complaints, and correspondence between the parties and their attorneys or between the attorneys” may constitute “other papers” under § 1446(b)(3). Id. Consistent with these principles, we have held that “a plaintiffs responses to deposition questioning may constitute an ‘other paper’ under [§ ] 1446(b).” Peters, 285 F.3d at 466. The term “other paper” under § 1446(b)(3) encompasses the hearing transcript at issue. As noted, courts have held that § 1446(b)(3) applies to similar court documents. We extend these holdings to the hearing transcript because it is (1) highly relevant to the issue of remova-bility and (2) “involved in,” not external to, “the case being removed.” See Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 969 (8th Cir.2007). In so holding, we also give weight to the fact that the transcript involves “oral statements made in the courtroom during the course of the action.” Wright et al., supra, § 3731. For the foregoing reasons, the district court did not err in holding that Mesa timely filed its Notice" }, { "docid": "9852657", "title": "", "text": "claims as early as June 25, 2013—the date on which she originally filed the Complaint. Mesa responds that the Complaint failed to give it adequate notice of the federal nature of Berera’s claims. Rather, Mesa maintains that it filed its Notice of Removal within 30 days after receiving “other papers” under 28 U.S.C. § 1446(b)(3) that first showed the federal nature of Berera’s claims. Pertinently, one of these papers is the transcript of the August 30 hearing in which Berera conceded that the First Adjustment corresponded to Mesa’s share of the FICA tax. Mesa also disputes Berera’s interpretation of the August 9 letter. A defendant removing an action to federal court must file a notice of removal. Id. § 1446(a). Generally, the defendant must file the notice of removal “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” Id. § 1446(b)(1). The 30-day period in § 1446(b)(1) starts to run only if the initial pleading contains “solid and unambiguous information that the case is removable.” Holston v. Carolina Freight Carriers Corp., No. 90-1358, 1991 WL 112809, at *3 (6th Cir. June 26, 1991) (per curiam). If the initial pleading lacks solid and unambiguous information that the case is removable, the defendant must file the notice of removal “within 30 days after receipt ... of a copy of an amended pleading, motion, order or other paper” that contains solid and unambiguous information that the case is removable. See 28 U.S.C. § 1446(b)(3); see also Walker v. Philip Morris USA, Inc., 443 Fed.Appx. 946, 950 (6th Cir.2011). Section 1446(b)’s requirement of solid and unambiguous information is akin to actual notice. Cf. Peters v. Lincoln Elec. Co., 285 F.3d 456, 466 (6th Cir.2002) (citation omitted) (internal quotation marks omitted) (“The intent of § 1446(b) is to make sure that a defendant has an opportunity ... to remove upon being given notice in the course of the case that the right exists.”); Charles Alan Wright et al., 14C Federal" }, { "docid": "16249838", "title": "", "text": "the defendants failed to file their notice of removal within thirty days from the date on which the first defendant was served. See Getty Oil Corp. v. Ins. Co. of North Am., 841 F.2d 1254, 1263 (5th Cir.1988). The plaintiffs contend that service on the Louisiana Secretary of State on January 3, 2001 qualifies as receipt by defendant Columbia; and therefore, the defendants should have filed their notice of removal by February 2, 2001. The defendants assert that the thirty-day period did not begin to run until Columbia actually received the petition from the Secretary of State on January 9, 2001, and that their notice of removal filed on February 7, 2001 was timely. In support of their motion, the plaintiffs rely on Bodden v. Union Oil Co. of Cal. and Life Ins. Co. of North Am., 82 F.Supp.2d 584 (E.D.La.1998)(Lemmon, J.). The Bodden court held that “service is completed when made on the Secretary of State regardless of when, or even whether, the Secretary subsequently performs the ministerial task of forwarding notice to the defendant.” Id. at 588. However, contrary to Bodden, the general rule is that the thirty-day clock does not begin to run when a statutory agent such as the Secretary of State is served: Realistically speaking, of course, these kinds of statutory agents are not true agents but are merely a medium for transmitting the relevant papers. Accordingly, it now appears to be settled law that the time for seeking removal begins to run only when the defendant or someone who is serving as the defendant’s agent in fact receives the process. 14c CHARLES ALAN WRIGHT, ARTHUR R. MILLER & Edward H. Cooper, Federal Practioe and Procedure: Jurisdiction 3d § 3732 (3d ed.1998). See, also, Manuel v. Unum Life Ins. Co. of Am., 932 F.Supp. 784 (W.D.La.1996)(holding that the “thirty day period in which defendant can remove commences on defendant’s actual receipt of a copy of the pleading”); Baum v. Avado Brands, Inc., 1999 WL 1034757, *2 (N.D.Tex. Nov 12, 1999)(holding that Bodden goes against the great weight of authority); Fidelity Funding, Inc. v. Pollution Research" }, { "docid": "10448376", "title": "", "text": "Company, Civ.A. No. 91-3092, 1991 WL 147482 (E.D.Pa., July 24, 1991). Instead, defendant argues that notice must be given by a more formal document which is an integral part of the state court proceeding. In this case, under defendant’s analysis, only plaintiffs’ formal answers to defendant’s interrogatories would constitute the “other paper” that started the clock ticking. 28 U.S.C. § 1446(b) does not define “other paper.” We have found no relevant legislative history. The statute, however, is clear that the time for removal begins to run when the defendant receives the requisite written notice of facts which make the case removable. The statutory requirement of a writing reduces disputes over knowledge of diversity or the amount in controversy and helps avoid later battles of credibility between opposing parties and lawyers. See Smith v. Bally’s Holiday, 843 F.Supp. 1451 (N.D.Ga.1994). Although notice must be in writing, the statute does not require “service” of that notice in some formal, legal sense. Notification may be “through service or otherwise.” 28 U.S.C. § 1446(b) (emphasis added). Thus, while Congress insisted that the notice of facts permitting removal must be in an “amended pleading, motion, order or other paper,” the method of delivery or receipt of the writing was not circumscribed. See 28 U.S.C. § 1446(b). In sum, the purpose of the statute “is to commence the running of the thirty day period once the defendant receives actual notice that the case has become removable, which may be communicated in a formal or informal manner.” 14A Wright, Miller & Cooper, Federal Practice & Procedure, § 3732, at 520 (emphasis added). See also 28 U.S.C. § 1446, Commentary on 1988 Revision of § 1446. Courts have found that answers to interrogatories in discovery proceedings satisfy the “other paper” requirement and give defendants sufficient notice to file a notice of removal. See Hessler v. Armstrong World Industries, Inc., 684 F.Supp. 393 (D.Del.1988) (citing Lee v. Altamil Corp., 457 F.Supp. 979 (M.D.Fla.1978)). Some courts have even gone so far as to state that oral statements in deposition testimony, apparently even before the deposition was transcribed, may trigger the" }, { "docid": "22424908", "title": "", "text": "of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 28 U.S.C. § 1446(b). The second paragraph of the same subsection deals with civil actions that were not removable, or could not have been determined to be removable, until “an amended pleading, motion, order or other paper” establishes their removability. That second paragraph provides: If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable .... Id.; see Am. Law Inst., Federal Judicial Code Revision Project (2004), reprinted in 19A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure 373, 657 (4th ed.2009); see also Caterpillar Inc. v. Lewis, 519 U.S. 61, 68-69, 117 S.Ct. 467, 472-73, 136 L.Ed.2d 437 (1996). Importantly, the present case and the Lowery case were removed under different paragraphs of § 1446(b). Kolter is not relying on the second paragraph of that subsection to establish the timeliness of its removal but instead on the first one, which applies because Kolter filed its notice of removal within thirty days of being served with the summons and initial complaint. See § 1446(b) (first paragraph); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354, 119 S.Ct. 1322, 1328, 143 L.Ed.2d 448 (1999) (“[I]f the summons and complaint are served together, the 30-day period for removal runs at once.”). Because Kolter filed its notice of removal within the time specified in the first paragraph of § 1446(b), its removal was timely. See Badon v. RJR Nabisco Inc., 224 F.3d 382, 390 (5th Cir.2000). Kolter “do[es]" }, { "docid": "9852658", "title": "", "text": "only if the initial pleading contains “solid and unambiguous information that the case is removable.” Holston v. Carolina Freight Carriers Corp., No. 90-1358, 1991 WL 112809, at *3 (6th Cir. June 26, 1991) (per curiam). If the initial pleading lacks solid and unambiguous information that the case is removable, the defendant must file the notice of removal “within 30 days after receipt ... of a copy of an amended pleading, motion, order or other paper” that contains solid and unambiguous information that the case is removable. See 28 U.S.C. § 1446(b)(3); see also Walker v. Philip Morris USA, Inc., 443 Fed.Appx. 946, 950 (6th Cir.2011). Section 1446(b)’s requirement of solid and unambiguous information is akin to actual notice. Cf. Peters v. Lincoln Elec. Co., 285 F.3d 456, 466 (6th Cir.2002) (citation omitted) (internal quotation marks omitted) (“The intent of § 1446(b) is to make sure that a defendant has an opportunity ... to remove upon being given notice in the course of the case that the right exists.”); Charles Alan Wright et al., 14C Federal Practice and Procedure § 3731 (4th ed. 2009) (“The statute requires ‘an amended pleading, motion, order, or other paper’ to act as a trigger to commence the running of a new 30-day period once the defendant has received actual notice, through one of the documents described in Section 1446(b), that a previously unremovable case has become removable.”). Here, Mesa removed the case on September 11, 2013. Therefore, for Mesa’s Notice of Removal to be timely, it must have received solid and unambiguous information that it could remove the case on or after August 12, 2013. Berera’s pleadings, per se, failed to solidly and unambiguously inform Mesa that it could remove the case. Berera filed the Complaint and Amended Complaint before August 12, 2013. But, as noted above, these pleadings were sparse and vague and asserted purported state-law claims. Hence, they lacked solid and unambiguous information that Berera was asserting a FICA refund claim. Nor does the August 9 letter show that Mesa had solid and unambiguous information that it could remove the case by August" }, { "docid": "2788765", "title": "", "text": "Since the defendants filed notice of removal within thirty days of the deposition, removal should be proper under § 1446(b). To succeed on this theory, the defendants must show not only that the content of the deposition made the case removable, but also that the deposition was the kind of “other paper” that may renew an otherwise expired right of removal. In the defendants’ view, the deposition, or at least the written transcript of it, qualifies as an “other paper.” There is no authoritative support for the defendants’ theory in this circuit. However, courts elsewhere have held that deposition testimony may constitute an “other paper.” See, e.g., S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir.1996) (concluding that transcript of deposition testimony is “other paper” permitting removal under § 1446(b)); Haber v. Chrysler Corp., 958 F.Supp. 321, 326-27 (E.D.Mich.1997) (concluding that deposition itself was “other paper” triggering time for removal, so that attempted removal more than thirty days after date of deposition was untimely). Such cases seem to take the view that the term “other paper” in § 1446(b) should be given “an embracive construe tion” to include “a wide array of documents.” See 14C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3732, at 300, 306 & n. 28 (3d ed.1998). That is a doubtable proposition. As a general matter, the removal statutes are to be strictly construed. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 86 L.Ed. 1214 (1941); American Home Assurance Co. v. Insular Underwriters Corp., 494 F.2d 317, 319 (1st Cir.1974); Santiago v. Barre Nat’l, Inc., 795 F.Supp. 508, 510 (D.Mass.1992). Strict construction would seem to call for giving a narrower, rather than a broader, interpretation to the scope of the words “other paper” in § 1446(b). Moreover, whether “other paper” is expansively or narrowly construed as a general matter does not determine whether a particular case will be removable. Removability is determined by the peculiar facts of each case. In one case, an expansive interpretation may lead to" }, { "docid": "9852659", "title": "", "text": "Practice and Procedure § 3731 (4th ed. 2009) (“The statute requires ‘an amended pleading, motion, order, or other paper’ to act as a trigger to commence the running of a new 30-day period once the defendant has received actual notice, through one of the documents described in Section 1446(b), that a previously unremovable case has become removable.”). Here, Mesa removed the case on September 11, 2013. Therefore, for Mesa’s Notice of Removal to be timely, it must have received solid and unambiguous information that it could remove the case on or after August 12, 2013. Berera’s pleadings, per se, failed to solidly and unambiguously inform Mesa that it could remove the case. Berera filed the Complaint and Amended Complaint before August 12, 2013. But, as noted above, these pleadings were sparse and vague and asserted purported state-law claims. Hence, they lacked solid and unambiguous information that Berera was asserting a FICA refund claim. Nor does the August 9 letter show that Mesa had solid and unambiguous information that it could remove the case by August 8-9, 2013. Therein, Mesa’s counsel asserts that he spoke with Berera’s counsel on August 8 to clarify the factual basis of Berera’s claims. According to the letter, during this conversation, Berera’s counsel stated that “Mesa might be able to identify the factual basis of the claim by reviewing company records of employee complaints to the IRS.” R. at 303. Although this statement might have “led [Mesa] to conclude that the conduct at issue related to federal withholding matters,” id., it did not constitute solid and unambiguous information that the case was removable. Mesa was faced with a Complaint that (1) failed to use “federal” or any similar descriptor to describe the “payroll taxes and other taxes and with-holdings” and (2) asserted purported state-law claims. Moreover, as of August 9, 2013, Berera had not confirmed Mesa’s suspicion that the claims related to federal taxes. See R. at 87, 303. Therefore, the August 9 letter fails to show that Mesa had solid and unambiguous information that the case was removable on August 8 or 9. Actually, the" }, { "docid": "21416098", "title": "", "text": "after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” Sections 1446(b)(1) and (b)(3) do not specify, however, what “information [ ] must be included in a plaintiffs initial pleading or other paper to. trigger the 30-day periods ... or how a defendant should ‘ascertain’ removability.” Cutrone v. Mortg. Elec. Registration, Sys., Inc., 749 F.3d 137, 142 (2d Cir.2014). This case requires us to address two important questions regarding the thirty-day windows of § 1446(b) in CAFA cases. Fust, we must determine what papers, if any, Visionworks “received” such that the thirty-day clock of § 1446(b)(3) began. Second, we must determine whether § 1446(b)(3) provides defendants with one thirty-day time period within which they must remove the action, even if the defendant later ascertains grounds for CAFA jurisdiction after an original thirty-day window has expired. We consider each of these questions in turn. A. When, If Ever, Did the 30-Day Removal Window Begin for Vision-works to Remove Under CAFA? Visionworks first contends that the district court - erred in finding that it could have first ascertained that the case was removable under CAFA from the Amended Complaint or, alternatively, from Grais-ér’s September 18, 2015 letter. We agree with Visionworks. Our Circuit has not had the opportunity to consider when the thirty-day removal clock begins for a defendant seeking to remove under CAFA. Moreover, our published case law regarding the thirty-day removal clocks in non-CAFA cases is extremely limited. Accordingly, we take this opportunity to clarify when the thirty-day windows, of - § 1446(b) are triggered, in CAFA cases. Both parties rely on Holston v. Carolina Freight Carriers Corp., No. 90-1358, 1991 WL 112809 (6th Cir. June 26, 1991), as establishing the standard for determining when the thirty-day removal period began for Visionworks. See Appellant Br. at 13; Appellee Br. at 6. Holston involved a dispute over when the defendant first ascertained'- that the plaintiffs complaint stated a federal question — as" }, { "docid": "3644032", "title": "", "text": "removable case in the court in which it was brought”); H. Rep. 352, 81st Cong. (1st Sess. 1949) reprinted in 1949 U.S.Code & Cong. Serv. at 1254, 1268 (explaining that the addition of the provision allowing removal when the initial pleading does not state a removable case was meant to codify the finding in Powers, 169 U.S. 92, 18 S.Ct. 264, to allow removal of an action whenever removability is disclosed). . See In re Willis, 228 F.3d 896, 897 (8th Cir.2000) (\"thirty-day period begins running on receipt of complaint only when complaint explicitly discloses [basis for federal jurisdiction]”). . See 14C Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure § 3733 at 309-10 (1998) (noting that “depositions, answers to interrogatories, and requests for admissions, amendments to ad damnum clauses of the pleadings, and correspondence between the parties and their attorneys or between the attorneys are usually accepted as ‘other paper' sources that initiate a new thirty day period of removability,” and collecting cases). The phrase \"other paper” generally refers to \"documents generated within the state court litigation.” Zbranek v. Hofheinz, 727 F.Supp. 324, 326 (E.D.Tex.1989). . Poss v. Lieberman, 299 F.2d 358, 359 (2d Cir.1962). . See Whitaker, 261 F.3d at 204 (\"The legislative history [of section 1446(b)] reflects a clear concern for ensuring that a defendant ‘know[ ] what the suit is about’ before triggering the removal clock.”). . See Soto v. Apple Towing, 111 F.Supp.2d 222, 226 (E.D.N.Y.2000) (citing Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir.1998) (a defendant must have unequivocal notice of removability that does not require \"an extensive investigation to determine the truth”)). See also DeBry v. Transamerica Corp., 601 F.2d 480, 489 (10th Cir.1979) (holding that \"if the statute is going to run, the notice ought to be unequivocal. It should not be one which may have a double design.”); Pack v. AC & S, 838 F.Supp. 1099, 1102 (D.Md.1993) (finding that removal pursuant to section 1442(a) was timely when filed within thirty days of date when plaintiffs served defendant with information that specific \"steam" }, { "docid": "15860145", "title": "", "text": "Local 349, 427 F.2d 325, 326-27 (5th Cir.1970); Gibson v. Inhabitants of Town of Brunswick, 899 F.Supp. 720, 721 (D.Me.1995); Garside v. Osco Drug, Inc., 702 F.Supp. 19, 21 (D.Mass.1988); Gorman v. Abbott Laboratories, 629 F.Supp. 1196, 1199 (D.R.I.1986). The failure of a defendant to join in a petition for removal has been found fatal to such removal and, has resulted in remand to the state court. See, e.g., Santa Rosa Medical Center, Inc. v. Converse of Puerto Rico, Inc., 706 F.Supp. 111 (D.P.R.1988); Hess v. Great Atlantic & Pac. Tea Co., Inc., 520 F.Supp. 373 (N.D.Ill.1981); Adams v. Aero Services Intern., Inc., 657 F.Supp. 519 (E.D.Va.1987); Miles v. Kilgore, 928 F.Supp. 1071 (N.D.Ala.1996). In the context of federal question jurisdiction, therefore, there are two conditions precedent to a ease being removed to federal court: (1) existence of a federal question and (2) the consent of all defendants. The Complaint in this case clearly states a federal question; however, initially all Defendants did not consent to removal. Absent such consent the case was not removable to federal court. It did not become removable until the nonconsenting Defendant was dismissed from the case. The second paragraph of § 1446(b) reads: If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant ... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. (Emphasis added). The words “other paper” in the above-quoted provision have been broadly interpreted by courts and has allowed for a wide array of documents to serve as a trigger commencing a new thirty-day period for previously unremovable cases that become removable. See 14C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, FedeRal Practice And Procedure: Jurisdiction 3d § 3732 (1998). “Other paper” that has signified the new-found removability of a case and initiated the thirty-day period includes letters from opposing counsel, correspondence between parties, affidavits, proposed jury instructions, answers to interrogatories," } ]

[ { "docid": "15877635", "title": "", "text": "averment that the prohibition of the act of Con gress in question was repugnant to the Constitution because in enacting the same \"Congress exceeded its designated powers under the Constitution of the United States and attempted, under the guise of its powers under the Commerce Clause, to exercise police power expressly reserved in the States.” The collector moved to dismiss on the ground that the bill stated no cause of action because the assailed provision of the act of Congress was constitutional and therefore on the face of the bill there was no jurisdiction to award the relief, sought. The motion was sustained and a decree of dismissal was rendered, and it is this decree which it is sought to reverse by the appeal which is before us, the propositions relied upon to accomplish that result, but reiterating in various forms of statement the contention as to the repugnancy to the Constitution of the provision of the act of Congress. But in view of the complete power of Congress over foreign commerce and its authority to prohibit the introduction of foreign articles recognized and enforced by many previous decisions of this court, the contentions are so devoid of merit as to cause them to be frivolous. Buttfield v. Stranahan, 192 U. S. 470; The Abby Dodge, 223 U. S. 166, 176; Brolan v. United States, 236 U. S. 216. It is true that it is sought to take this case out of the long-recognized rule by the proposition that it has no application because the assailed provision was enacted to regulate the exhibition of photographic films of prize fights in the United States and hence it must be treated not as prohibiting the introduction of the films, but as forbidding the public exhibition of the films after thqy are brought in — a subject to,which, it is insisted, the power of Congress does not extend. But aside from the fictitious assumption on which the proposition is based, it is obviously only another form of denying the power of Congress to prohibit, since if the imaginary premise and proposition based on" } ]

[ { "docid": "13471994", "title": "", "text": "notice requirements of the APA by failing to issue public notice and seek comment. See 5 U.S.C. § 553. The notice and comment requirements of the APA, however, do not apply when an agency “for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” See 5 U.S.C. § 553(b)(3)(B). It is true that the “good cause” exception to the notice and comment requirements of the APA have been narrowly construed. See Tennessee Gas Pipeline Co. v. Federal Energy Regulatory Commission, 969 F.2d 1141, 1144 (D.C.Cir.1992). In general, an agency may dispense with notice and comment only “in emergency situations where delay would do real harm.” See Action on Smoking and Health v. Civil Aeronautics Board, 713 F.2d 795, 800 (D.C.Cir.1983). Congress, recognizing the distinct possibility of such emergency situations in fishery management, has specifically provided for an exception to the notice and comment requirements in the Magnuson-Stevens Act. See 16 U.S.C. § 1855(c); see also Pacific Coast Federation of Fishermen’s Assoc., Inc. v. Secretary of Commerce, 494 F.Supp. 626, 633-34 (N.D.Cal.1980). The Magnuson-Stevens Act specifically provides that the Secretary may promulgate an emergency regulation or interim measure for one hundred eighty (180) days without public notice and comment. See 16 U.S.C. § 1855(c)(3)(B). The implementing regulations specifically provide that “if interim measures are made effective without prior notice and opportunity for comment, they should be reserved for exceptional circumstances.” See 50 C.F.R. § 600.310(e)(5)(ii). Indeed, this Circuit has explicitly stated that these provisions of the Magnuson-Stevens Act provide the Secretary with the power to issue emergency regulations with a “minimum of formalities.” See Commonwealth of Massachusetts v. Daley, 170 F.3d 23, 32 (1st Cir.1999). Such emergency regulations “bypass the ordinary scheme of the Magnuson-Stevens Act.” See id. at 24. When the Secretary implemented the interim final rule on May 4, 2000, he had already taken extensive public comment on the SDFMP, which proposed measures needed to reduce the mortality rate to 0.03. The Secretary had already" }, { "docid": "7912617", "title": "", "text": "COWEN, Senior Circuit Judge. Appellant, Target Sportswear, Inc. (Target), appeals the decision of the United States Court of International Trade granting summary judgment for the United States and dismissing Target’s challenge to an interim regulation promulgated by the United States Customs Service, Department of the Treasury (Customs). Target Sportswear, Inc. v. United States, 875 F.Supp. 835 (Ct. Int’l Trade 1995). We affirm. BACKGROUND Target, through its affiliate Altan, Inc., imports suits from the United States Virgin Islands (U.S. Virgin Islands) into the United States. The U.S. Virgin Islands is an insular possession of the United States. 48 U.S.C. § 1392 et seq. (1994). On December 9, 1993, Customs refused to allow entry of twelve mens suits shipped by Target from the U.S. Virgin Islands because the suits were not accompanied by a textile export visa from the Dominican Republic. Customs required an export visa because an interim regulation classified the suits as products of the Dominican Republic, as opposed to products of the U.S. Virgin Islands, for purposes of a quota restriction on Dominican Republic textiles. See 19 C.F.R. § 12.130(c)(2) (interim regulation). Customs promulgated the interim regulation pursuant to section 204 of the Agriculture Act of 1956. 7 U.S.C. § 1854 (1994) (§ 204). Section 204 delegates to the President the power to enter into trade agreements that limit the import of textiles or textile products from foreign countries and the power to promulgate regulations that implement such agreements. Pursuant to § 204 and the multinational Mul-ti-Fiber Arrangement Regarding International Trade in Textiles, the United States and the Dominican Republic entered into a bilateral agreement that established the quota restriction applied to Target’s suits. Target contends that the suits were improperly denied entry, because the interim regulation exceeds the scope of the President’s authority under § 204. The suits were produced by cutting unmarked fabric, lining and interlining into garment pieces in the U.S. Virgin Islands. The cut pieces were joined to form components, where appropriate, and then were shipped to the Dominican Republic. In the Dominican Republic, the components were sewn together. The garments were returned to the" }, { "docid": "5303865", "title": "", "text": "is unclear on the present record. It is only the regulations of I.N.S. which are under direct challenge here. Yet I.N.S. purported to rely on the State Department’s prior revocation of the student exemption (Note 1, supra) as grounds for I.N.'S.’s failure to provide notice of rule-making when repealing its version of the exemption. To that extent, then, it becomes necessary to examine the State Department’s action, to determine if notice by the I.N.S. would in fact have been a meaningless formality and thus exempt from the notice requirement as “good cause.” 5 U.S.C. § 553(d)(3). Both the initial promulgation of the student exemption by the State Department and its subsequent revocation were claimed to be exempt from the Administrative Procedure Act as involving “foreign affairs functions” of the United States. Yet the disposition of this claim as made by I.N.S. Notes 4r-8 and accompanying text, supra, applies equally to the State Department. It is the nature of the function, not the name of the agency, which determines the applicability of the Act. I.N.S. cannot, therefore, use the State Department’s invalid attempt at repeal as justification for similar action by I.N.S. . 31 F.R. 10021. . 5 U.S.C. § 553(d) : The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except— (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; . (emphasis added) . See K. Davis, Administrative Law Treatise, (1958) § 5.03-.05; id. (1970 Supp.), § 5.03-.04; Gibson Wine Co. v. Snyder, 90 U.S.App.D.C. 135, 194 F.2d 329 (D.C.Cir. 1952), American President Lines, Ltd. v. Federal Maritime Commission, 316 F.2d 419 (D.C.Cir. 1963), Garelick Mfg. Co. v. Dillon, 114 U.S.App.D.C. 218, 313 F.2d 899 (D.C.Cir. 1963). . National Motor Freight Traffic Ass’n v. United States, 268 F.Supp. 90, 95-97 (D.D.C.1967), aff’d 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19 (1968), Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942). . National Motor Freight Traffic Ass’n v." }, { "docid": "13613172", "title": "", "text": "promulgating the challenged amendment. The amendment does no more than implement the President’s foreign policy of severing relations with Iran. It was entirely rational for the Commissioner to alter immigration policy so as to bring it into conformity with the President’s foreign policy toward Iran. It is clear that the Commissioner did not develop this foreign policy; he merely implemented it. Such implementation is clearly within the scope of the Commissioner’s powers. See Yassini v. Crosland, 618 F.2d 1356, 1360-61 (9th Cir. 1980) (crucial question is “whether Commissioner Crosland was acting independently of the President and Attorney General and in effect announcing his own foreign policy, or merely implementing the expressed foreign policy of the President”). Petitioners’ second argument is that the amendment to § 244.1 violates § 553 of the Administrative Procedure Act (APA), 5 U.S.C. § 553, because its promulgation was not preceded by notice and comment. For the reasons given by the Fourth Circuit in resolving this issue, we hold that the amendment was exempt from the notice and comment provisions of the APA under the “good cause” and “foreign affairs function” exceptions to these requirements. 5 U.S.C. §§ 553(b)(3)(B), 553(a)(1). Malek-Marzban v. INS, 653 F.2d 113, 115-16 (4th Cir. 1981). See also Yassini v. Crosland, 618 F.2d 1356, 1359-61 (9th Cir. 1980) (finding that the same two exceptions applied to a directive of the Commissioner revoking the deferred voluntary departure dates previously granted to Iranian nationals in this country). Petitioners next contend that the regulation denies Iranian nationals the equal protection of the laws in violation of the Fifth Amendment to the United States Constitution. In rejecting an identical contention, the Fourth Circuit reasoned as follows: The petitioners’ contention that the amendment of § 244.1 deprives them of the equal protection of the laws merits little discussion. When the federal government classifies aliens on the basis of nationality, the classification must be sustained if it has a rational basis. Narenji v. Civiletti, 617 F.2d 745 (D.C.Cir. 1979); Alvarez v. District Director, INS, 539 F.2d 1220 (9th Cir. 1976); Noel v. Chapman, 508 F.2d 1023 (2d Cir." }, { "docid": "22895323", "title": "", "text": "jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” 42 U.S.C. § 16913(a). The statute does not specify whether its registration requirements apply retroactively to a sex offender who, like Valverde, was convicted before the statute’s effective date. 42 U.S.C. § 16913(b). Congress instead delegated to the Attorney General the “authority to specify the applicability of the requirements of [SORNA’s registration requirements] to sex offenders convicted before [the statute’s] enactment [on July 27, 2006] or its implementation in a particular jurisdiction” and the authority “to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with” the Act’s registration requirements. 42 U.S.C. § 16913(d). Pursuant to this delegation of authority, on February 28, 2007, seven months after the statute’s enactment, U.S. Attorney General Alberto Gonzales issued an interim rule applying SORNA to “all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of [SORNA].” 28 C.F.R. § 72.3. In issuing the interim rule, the Attorney General declined to comply with the procedural requirements of the APA. 5 U.S.C. § 551 et seq. Under the APA, rulemaking is generally required to comply with a three-step process: (1) notice of a proposed rule must be given by publication in the Federal Register, 5 U.S.C. § 553(b); (2) following publication of the proposed rule, 30 days must be provided for public comment; (3) notice of a final rule must be given by publication in the Federal Register, normally accompanied by a response to concerns raised in the public comments, “not less than 30 days before [the rule’s] effective date....” 5 U.S.C. § 553(d)(3). The APA permits an Agency to promulgate valid regulations without complying with these procedures, however, if it “for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(3)(B). The Attorney General relied upon" }, { "docid": "7912618", "title": "", "text": "textiles. See 19 C.F.R. § 12.130(c)(2) (interim regulation). Customs promulgated the interim regulation pursuant to section 204 of the Agriculture Act of 1956. 7 U.S.C. § 1854 (1994) (§ 204). Section 204 delegates to the President the power to enter into trade agreements that limit the import of textiles or textile products from foreign countries and the power to promulgate regulations that implement such agreements. Pursuant to § 204 and the multinational Mul-ti-Fiber Arrangement Regarding International Trade in Textiles, the United States and the Dominican Republic entered into a bilateral agreement that established the quota restriction applied to Target’s suits. Target contends that the suits were improperly denied entry, because the interim regulation exceeds the scope of the President’s authority under § 204. The suits were produced by cutting unmarked fabric, lining and interlining into garment pieces in the U.S. Virgin Islands. The cut pieces were joined to form components, where appropriate, and then were shipped to the Dominican Republic. In the Dominican Republic, the components were sewn together. The garments were returned to the Virgin Islands for finishing, and were then shipped to the United States for import. It is undisputed that the suits underwent their “last substantial transformation,” which is an established test in customs law for determining the country of origin of a product that was processed in multiple locales, in the U.S. Virgin Islands. The challenged interim regulation, however, provides that textile products exported from an insular possession that were “advanced in value, improved in condition, or assembled” in a foreign country cannot be treated as a product of the insular possession. 19 C.F.R. § 12.130(c)(2) (1995). Under the interim regulation, it is undisputed that the suits at issue are treated as a product of the Dominican Republic for purposes of the quota imposed' by the bilateral agreement, notwithstanding the fact that the suits underwent their last substantial transformation in the U.S. Virgin Islands. DISCUSSION In arguing that the interim regulation is ultra vires, Target posits that § 204’s delegation of authority does not grant the President the power to formulate a country of origin rule" }, { "docid": "22422298", "title": "", "text": "States v. Yoshida International, Inc., 526 F.2d 560, 63 CCPA 15 (1975); Consumers Union of the United States, Inc. v. Kissinger, 506 F.2d 136, 148-49 (D.C.Cir.1974) (Leventhal, J., dissenting) cert. denied, 421 U.S. 1004, 95 S.Ct. 2406, 44 L.Ed.2d 673 (1975); U.S. Const., art. 1, § 8, cl. 3 (\"Congress shall have the power ... to regulate commerce with foreign Nations____”) From this proposition, AAEI-TAG derives the conclusion that the President must stay strictly within the terms of his statutory authorization or else exceed his constitutional powers. AAEI-TAG then infers that vigorous judicial review is appropriate to insure that the President stays within these statutory bounds. . The Government concedes, for purposes of this appeal, that CITA’s activities constitute rule-making under the APA. . Under Annex B of the MFA, import restraints may not be less than the level of actual imports during the twelve month period ending two months prior to the month of the consultation request. If the quotas are delayed for procedural reasons, the measurement of the level of imports could shift dramatically. . At least as early as 1967, the then pertinent executive agencies (Departments of Commerce and Labor) informed Congress that in their view, the international negotiation and administration of international agreements (including the textile program) fell within the present foreign affairs exemption in Section 4 of the APA, 5 U.S.C. § 553. See Hearings in S. 518, Subcommittee on Administrative Practice and Procedure, Senate Committee in the Judiciary, 90th Cong., 1st Sess. 241, 373 (1967)." }, { "docid": "12196962", "title": "", "text": "initially register — circumscribes the delegation of authority to a limited class of people, in furtherance of SORNA goals of protecting children under a comprehensive national registry system. See § 16901. Accordingly, SORNA does not violate the non-delegation principle which allows for separation of powers in the federal government. Cf. Akers, 2008 WL 914493, at *4; Howell, 2008 WL 313200, at *7 (collecting cases); Utesch, 2008 WL 656066, at *10; LeTourneau, 534 F.Supp.2d at 724-25; Gould, 526 F.Supp.2d at 545-46 (collecting cases); Cardenas, 2007 WL 4245913, at *7-10; Hinen, 487 F.Supp.2d at 751-53. 5. SORNA does not violate the Administrative Procedures Act Defendant next argues that the Attorney General’s Regulation, 28 C.F.R. § 72.3, which purportedly applies SORNA retroactively, violated the Administrativé Procedures Act (“APA”), codified at 5 U.S.C. § 553, because it was promulgated without a thirty-day notice and comment period. Def.’s Mot. 22-24. The Administrative Procedure Act requires that “[g]eneral notice of proposed rulemaking shall be published in the Federal Register” “not less than 30 days before [the] effective date [of a substantive rule]” that allows “interested persons an opportunity to participate in the rule making[.]” 5 U.S.C. § 553(b)-(d). An exception to the 30-day rule exists “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Id. § 553(b)(B). The “good cause” exception to the notice and comment period of the APA should be “narrowly construed and only reluctantly countenanced.” Utility Solid Waste Activities Group v. EPA, 236 F.3d 749, 754 (D.C.Cir.2001) (citation omitted). The exception should not be used as an “escape clause;” rather “its use should be limited to emergency situations.” Id. (citation omitted). “Failure to allow notice and comment, when required, is grounds for invalidating the rule.” Nat’l Org.. of Veterans’ Advocates v. Sec’y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed.Cir.2001) (citation omitted). As part of the proposed Interim Rule, the Attorney General included the following language: The immediate effectiveness of this rule is necessary to" }, { "docid": "23297986", "title": "", "text": "amended (50 USC App. 5(b)), and if so, whether such a delegation of authority was constitutional. OPINION The people of the new United States, in adopting the Constitution, granted the power to “lay and collect duties” and to “regulate commerce” to the Congress, not to the Executive. U.S. Constitution, Art. I, Sec. 8, clauses 1 and 3. Nonetheless, as the Customs Court recognized in the opinion below, and as other courts and commentators have noted, Congress, beginning as early as 1794 and continuing into 1974, has delegated the exercise of much of the power to regulate foreign commerce to the Executive. As perhaps an inevitable result, “few areas of American constitutional law [are] more burdened with conflicting decisions and scholarly disagreement.” Recent Decisions, 15 Va. J. Int’l. L. 649.(1975). As inferred in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), the President has certain “inherent” powers in the conduct of foreign relations and foreign affairs. Some of the commentators referred to above have cited certain “concurrent” powers he shares with the Congress in those fields. The Supreme Court referred to “pooled” legislative and executive powers in foreign affairs, including delegations of power over foreign commerce, -in Chicago & S. Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 110 (1948). It is nonetheless clear that no undelegated power to regulate commerce, or to set tariffs, inheres in the Presidency. Termination Provisions We are in basic agreement with the Customs Court’s interpretation (quoted above) of the termination powers delegated by the Con gress in the Tariff Act and in the TEA, United States v. American Bitumuls & Asphalt Co., 44 CCPA 199, C.A.D. 661, 246 F. 2d 270 (1957), cert. denied, 355 U.S. 883. Having correctly found no delegation, in the acts or in their legislative histories, of the power to impose the surcharge here in question, the Customs Court nonetheless applied, and the parties have argued, the “separation of powers doctrine” and its corollary, the “delegation doctrine,” in relation to the termination provisions of the Tariff Act and the TEA. But whether the limitations on Congress’ power" }, { "docid": "19205132", "title": "", "text": "reneging on international obligations if the FHWA had not issued the rule. In WBEN, Inc. v. United States, 396 F.2d 601, 616 (2d Cir.1968) (Friendly, J.), the court applied the “foreign affairs” exception to an FCC rule implementing an agreement between the United States and Canada that imposed power limits on presunrise broadcasts. Here as there the rule does no more than carry out obligations to a foreign nation undertaken for purposes of resolving a problem requiring coordination (here, work of citizens of each nation within the other; there, interference between broadcast signals). We believe it therefore involves a “foreign affairs function” within the meaning of § 553(a). See also Mast Industries v. Regan, 596 F.Supp. 1567, 1580-83 (C.I.T.1984). The union appears to argue that even if notice and comment were unnecessary under 5 U.S.C. § 553, they were required under 49 U.S.C. app. § 2715(b). According to that section, “All regulations under [the Safety Act] shall be issued in accordance with section 553 of Title 5....” This appears to do no more than make § 553 applicable, its exceptions no less than its affirmative requirements. Thus it adds nothing to petitioner’s APA claim. Finally, the FHWA’s own regulations call for it to provide notice and an opportunity for public participation before issuing rules under either 49 U.S.C. § 3102 or the Safety Act, and there is no “foreign affairs” exception to this regulatory requirement. See 49 CFR § 389.11. But the regulatory requirement does not apply when “the Administrator, for good cause, finds that notice is ... unnecessary ... and incorporates that finding and a brief statement of the reasons for it in the rule”. Id. The Administrator included just such a statement in the rule at issue here, invoking the regulatory exception “because it is not anticipated that [notice and comment] would result in the receipt of useful information”. 57 Fed.Reg. at 31,455. After all, assuming that Mexico was issuing CDLs in accordance with the annex to the Memorandum of Understanding, the agreement called for the United States to recognize Mexican CDLs even if comments revealed widespread objections." }, { "docid": "22422288", "title": "", "text": "States v. Curtiss-Wright Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1986), Congress had authorized the President to restrict exports of arms to South America if the President determined that such a restriction would advance the cause of peace. The President issued a proclamation announcing a restriction in accordance with Congress’ resolution. Curtiss-Wright contended that the President’s finding did not suffice to trigger his authority under the resolution. The Supreme Court responded: “There is no suggestion that the resolution is fatally uncertain or indefinite; and a finding which follows its language, as this finding does, cannot well be challenged as insufficient.” Id. at 331, 57 S.Ct. at 226. We recently dealt in Florsheim Shoe, supra, 744 F.2d at 795-96, with an international trade issue very similar to the present one, and reiterated that “Once it is determined, as we have just done, that the President’s exercise of his authority ... was within his constitutionally delegated power, there is no further role for the CIT or for this court____ The President’s findings of fact and the motivations for his actions are not subject to review.” C AAEI-TAG’s procedural argument hinges on section 4 of the Administrative Procedure Act (APA), 5 U.S.C. § 553 (1982), which provides: (c) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or have actual notice thereof in accordance with law. The section further requires that, after notice, the agency must receive comments from interested parties. 5 U.S.C. § 553(d). AAEI-TAG claims that CITA violated these notice-and-comment requirements, and its actions are, therefore, void. The Government counters with 5 U.S.C. § 553(a), which excludes agency action from the notice-and-comment provision “to the extent that there is involved — (1) a military or foreign affairs function of the United States.” (Emphasis added.) The only two cases to consider the impact of the APA on regulations issued under the authority of section 204 have held that the notice-and-comment procedure is unnecessary on the basis of the foreign affairs exemption. Consumers Union v. CITA," }, { "docid": "457330", "title": "", "text": "amendment falls under two exceptions to the APA’s rule-making requirements. Section 553(a)(1) provides that § 553 “applies . . . except to the extent that there is involved ... a military or foreign affairs function of the United States.” The involvement of foreign affairs in the amendment of § 244.1 is obvious and is stated concisely in the announcement of the amendment in the Federal Register: Because of the Iranian Government’s failure to resolve the international crisis it created by the unlawful detention of American citizens in the United States Embassy in Tehran, the President of the United States announced the break in diplomatic relations with that country on April 7, 1980. In further response to the international crisis it has been determined to expedite the departure of Iranians unlawfully present in the United States. Consequently, the Immigration and Naturalization Service will amend its regulations to limit to 15 days the amount of time an immigration judge may grant an Iranian national in deportation proceedings to depart the United States voluntarily under section 244(e) of the Immigration and Nationality Act. 45 Fed.Reg. 27916 (April 25, 1980). We are not persuaded by the petitioners’ argument that the INS is estopped from asserting the foreign affairs exception because it has routinely complied with the APA rulemaking requirements in the past. Voluntarily submitting a policy decision involving a foreign affairs function to rulemaking procedures is commendable, but it does not restrict an agency’s prerogatives when circumstances require swift action. Section 553(b)(3)(B) provides that § 553(b) “does not apply . . . when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” The INS discharged its burden to show good cause by concluding its announcement of the amendment with this statement: These general statements of policy are effective immediately because of the urgency of the international crisis. Publication is made in order to swiftly and efficiently advise the public of these actions. 45 Fed.Reg. 27917 (April 25," }, { "docid": "22422289", "title": "", "text": "and the motivations for his actions are not subject to review.” C AAEI-TAG’s procedural argument hinges on section 4 of the Administrative Procedure Act (APA), 5 U.S.C. § 553 (1982), which provides: (c) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or have actual notice thereof in accordance with law. The section further requires that, after notice, the agency must receive comments from interested parties. 5 U.S.C. § 553(d). AAEI-TAG claims that CITA violated these notice-and-comment requirements, and its actions are, therefore, void. The Government counters with 5 U.S.C. § 553(a), which excludes agency action from the notice-and-comment provision “to the extent that there is involved — (1) a military or foreign affairs function of the United States.” (Emphasis added.) The only two cases to consider the impact of the APA on regulations issued under the authority of section 204 have held that the notice-and-comment procedure is unnecessary on the basis of the foreign affairs exemption. Consumers Union v. CITA, Civil Action No. 74-968 (D.D.C.1975), rev’d on other grounds, 561 F.2d 872, supra; Mast Industries, Inc. v. Regan, 18 Cust.B. & Dec. No. 44 at 139, 596 F.Supp. 1567 (CIT 1984). We agree that CITA’s imposition of quotas is exempt from the APA by virtue of § 553(a)(1). The purpose of the exemption was to allow more cautious and sensitive consideration of those matters which “so affect relations with other Governments that, for example, public rule-making provisions would provoke definitely undesirable international consequences.” H.Rep. No. 1980, 69th Cong., 2d Sess. 23 (1946); see also, S.Rep. No. 752, 69th Cong., 1st Sess. 13 (1945). Prior disclosure of the Government’s intention to trigger the agreements’ consultation provisions or to impose stricter import restrictions would “provoke definitely undesirable international consequences.” First, prior announcement of CITA’s intention to impose stricter quotas pending consultations creates an incentive for foreign interests and American importers to increase artificially the amount of trade in textiles prior to a final administrative determination. American importers would want to increase inventories in the face of the" }, { "docid": "22895324", "title": "", "text": "C.F.R. § 72.3. In issuing the interim rule, the Attorney General declined to comply with the procedural requirements of the APA. 5 U.S.C. § 551 et seq. Under the APA, rulemaking is generally required to comply with a three-step process: (1) notice of a proposed rule must be given by publication in the Federal Register, 5 U.S.C. § 553(b); (2) following publication of the proposed rule, 30 days must be provided for public comment; (3) notice of a final rule must be given by publication in the Federal Register, normally accompanied by a response to concerns raised in the public comments, “not less than 30 days before [the rule’s] effective date....” 5 U.S.C. § 553(d)(3). The APA permits an Agency to promulgate valid regulations without complying with these procedures, however, if it “for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(3)(B). The Attorney General relied upon the good cause exception in seeking to make the February 28, 2007 interim rule applying SORNA retroactively effective immediately and to render inapplicable the requirements for advance publication, public comment, and Agency response. 72 Fed. Reg. at 8895. In a statement accompanying the interim rule, the Attorney General did not state that notice and comment was “impracticable” or “unnecessary,” but solely that it was “contrary to the public interest.” The immediate effectiveness of this rule is necessary to eliminate any possible uncertainty about the applicability of the Act’s requirements — and related means of enforcement, including criminal liability under 18 U.S.C. § 2250 for sex offenders who knowingly fail to register as required — to sex offenders whose predicate convictions predate the enactment of SORNA. Delay in the implementation of this rule would impede the effective registration of such sex offenders and would impair immediate efforts to protect the public from sex offenders who fail to register through prosecution and the imposition of criminal sanctions. The resulting practical dangers include the commission of additional sexual" }, { "docid": "20294186", "title": "", "text": "591 F.3d 83, 91-93 (2d Cir.2010). . The notice-and-comment procedure is not required for (1) rules involving military or foreign affairs, (2) rules \"relating to agency management or personnel or to public property, loans, grants, benefits, or contracts”; or (3) interpretative rules, policy statements, or agency procedural rules. 5 U.S.C. § 553. . Prior to the Cain decision, the Sixth Circuit in an unpublished decision treated February 28, 2007 as the appropriate retroactivity date, made statements suggesting that SORNA might be retroactive on its own terms, and stated that § 16913(d) applies only to initial registration. United States v. Samuels, 319 Fed.Appx. 389, 393-95 (6th Cir.2009). Shortly thereafter, a district court in the circuit held that \"the Attorney General’s explicit rationale demonstrates good cause.” United States v. Hernandez, 615 F.Supp.2d 601, 613 (E.D.Mich.2009). Cain has overruled both Samuels and Hernandez on these points. . The two other circuit courts to have ruled on the validity of the interim regulation under the APA have upheld it. In United States v. Gould, 568 F.3d 459 (4th Cir.2009), the Fourth Circuit held over Judge Michael’s vigorous dissent that the reasons proffered by the Attorney General amounted to good cause. Id. at 470. The Cain panel directly engaged and rejected the Fourth Circuit’s reasoning. Cain, 583 F.3d at 422 (stating that the Gould \"court's brief analysis offered only three weak reasons for its holding”). In Dixon, the Seventh Circuit dismissed the argument as \"frivolous” in a parenthetical with no analysis at all. 551 F.3d at 583. . Though the guidelines themselves provide an immediate effective date of July 2, 2008, the Attorney General provided no statement of reasons to establish \"good cause” for disposing of the thirty-day publication requirement. See 5 U.S.C. § 553(d). Had the Attorney General provided a rationale similar to that accompanying its interim regulation, we likely would find it inadequate under the reasoning of Cain. 583 F.3d at 421-24. Bound to enforce the procedural requirements of the APA, we therefore hold that the final regulations became effective thirty days after publication. See Rowell, 631 F.2d at 704. . For an" }, { "docid": "15711317", "title": "", "text": "that HUD had earlier sought to establish through the Coinsuring Lender Letters and the Interim Rule published on March 27, 1990. . On May 4, 1990, the Court, sua sponte, extended the temporary restraining order with respect to the Interim Rule for an additional ten days so as to afford the parties adequate time to complete briefing. . This section exempts \"interpretative rules, general statements of policy, or rules of agency organization, practice or procedure” from the APA’s notice and comment requirements. . The requirement that the public be afforded a minimum of 60 days to submit comments is found in HUD’s own regulations, at 24 C.F.R. § 10.1. . The \"good cause\" exception to the APA permits an agency to dispense with notice and comment rulemaking \"when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(3)(B). . The Court notes that exceptions to the notice and comment requirements of § 553 are to be \"narrowly construed and only reluctantly countenanced.” American Fed’n of Gov’t Employees, AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C.Cir.1981). Although our court of appeals has noted that \"[c]ourts have upheld a 'good cause’ exception when notice and comment could result in serious damage to important interests,” Nat’l Fed’n of Federal Employees v. Devine, 671 F.2d 607, 611-12 (D.C.Cir.1982) (citations omitted), the Court does not find the facts of the instant case justify abbreviating the normal 60 day period for receiving comments after publication in the Federal Register. .HUD continues to assert that it is exempt from the rulemaking requirements of the APA pursuant to 5 U.S.C. § 553(a)(2) which exempts matters related to, inter alia, public loans, grants, or contracts, and that its actions are taken pursuant to its own regulations which require HUD to \"provide for public participation in rulemaking with respect to all HUD programs and functions ... even though such matters would otherwise not be subject to rulemaking by law or" }, { "docid": "3269998", "title": "", "text": "Textile Products From US. Insular Possessions, 58 Fed. Reg. 19347,19349 (April 14,1993) and became effective 30 days later, on May 14,1993. Interim Regulation 19 C.F.R. § 12.130(c)(2), published as T.D. 93-27, added part (c)(2) to the original country of origin regulation § 12.130 finalized in T.D. 85-38, 50 Fed. Reg. 8710 (March 5,1985). Fundamentally, under the U.S. Constitution the authority to regulate foreign commerce and trade with other nations lies exclusively with the Congress. U.S. Const., Art. I, § 8, cl. 3; Congress may delegate such authority to the Executive. California Bankers Association v. Schultz, 416 U.S. 21, 59 (1974); Chicago and Southern Airlines v. Waterman S.S. Corp., 333 U.S. 103, 109 (1948); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294 (1933). Although in this opinion the court refers to the interim regulation as issued by the President, in actuality the Customs Service promulgated the interim regulation at the request of the Committee for the Implementation of Textile Agreements (“CITA”), which was established by Executive Order 11651 onMarch2,1972 to supervise the implementation of textile trade agreements. Section 2(a) of that Executive Order requires the Commissioner of Customs to take such actions as CITA, through its Chairperson, recommends to carry out agreements entered into by the United States under section 204 of the Agricultural Act of 1956. The Customs Service’s notice announcing its promulgation of the interim regulation states that it was issued pursuant to authority granted by the Congress to the President in § 204. Count two of the complaint alleges economic hardship incurred by Target as a result of enforcement of the interim regulation and seeks a permanent injunction against enforcement of the interim regulation by Customs based on invalidity as alleged in Count one of the complaint. See Convention on Cession of Danish West Indies, Aug. 4,1916, U.S.-Den., T.S. No. 629. The country of origin rules adopted in 1985 provided that any textile product which is returned to the United States after having been advanced in value or improved in condition abroad may not, upon its return, be considered as a product of the United States." }, { "docid": "1419256", "title": "", "text": "Mahdjoubi’s attempts to reopen his deportation proceeding and to gain reinstatement of voluntary departure were denied, and he was ordered to report for deportation on February 15, 1980. Mahdjoubi moved for a temporary restraining order and a stay of deportation in the district court. After the district court denied relief, Mahdjoubi appealed to this court. The court granted Mahdjoubi a stay of deportation pending appeal. I. Compliance with the APA Mahdjoubi does not claim that the INS does not have the authority to grant or revoke deferred departure. Rather, he contends that the Crosland directive should be declared void under 5 U.S.C. § 706(2)(D), because it was a “rule” that had not been promulgated in accordance with the formal rulemaking procedures of the Administrative Procedure Act, specifically 5 U.S.C. § 553(b), (c), and (d), which require public notice and comment before a proposed rule takes effect. We find it unnecessary to decide whether the Crosland directive is a “rule” under the APA. We assume arguendo that it is a rule, but conclude that it is exempt from APA rulemaking procedures under the “good cause” and “foreign affairs function” exceptions to those procedures. See 5 U.S.C. §§ 553(b)(B) and 553(a)(1). The good cause exception applies when compliance with the notice requirements are “impracticable, unnecessary or contrary to the public interest.” Id., § 553(b)(B). See generally United States Steel Corp. v. EPA, 605 F.2d 283 (7th Cir. 1979), cert. denied, - U.S. -, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980). The good cause urged here by the Government is that the public interest warranted a prompt response to the embassy takeover in Iran. This is essentially the basis for its argument that the foreign affairs exception applies. Analytically, then, the question whether the public interest excuses notice and comment under § 553(b)(B) appears to be the equivalent of the question whether a foreign affairs function excuses notice and comment under § 553(a)(1). Our discussion, therefore, spans both subsections of the statute. Central to the resolution of these issues is whether Commissioner Crosland was acting independently of the President and Attorney General and" }, { "docid": "3269964", "title": "", "text": "OPINION Introduction Newman, Senior Judge: Arejection by theUnited States Customs Service (“Customs”) of plaintiffs entry of men’s suits exported from the U.S. Virgin Islands due to plaintiffs failure to submit an export visa from the Dominican Republic, where the suits were assembled, showing compliance with quota restrictions on Dominican Republic textile products, as required by a 1993 interim regulation, precipitated this litigation. Section 204 of the Agricultural Act of 1956, as amended, 7 U.S.C. § 1854 (“§ 204”), authorizes the President to negotiate agreements with foreign governments to limit the quantity of imports into the United States of textiles and textile products of such foreign countries and to issue regulations to carry out such agreements. Plaintiff, Target Sportswear, Inc. (“Target”), a United States importer of men’s suits from the U.S. Virgin Islands, challenges the validity of 19 C.ER. § 12.130(c)(2), effective May 14,1993, T.D. 93-27, an interim regulation promulgated by the Commissioner of Customs concerning rules of country of origin for textiles and textile products imported from insular possessions, including the U.S. Virgin Islands (“interim regulation”). At issue is the scope of the President’s congressionally-delegated authority in conformance with § 204 to issue country of origin regulations to carry out textile trade agreements negotiated pursuant to the statute. Specifically in dispute is the President’s authority to make a narrow exception to the “substantial transformation” test prescribed in § 12.130(b) under which regulation the country or territory in which merchandise last underwent a “substantial transformation” is regarded as the country of origin. Under the exception created by the challenged interim regulation, textile products substantially transformed in an insular possession, shipped to a foreign country for assembly or other processing, returned to the insular possession, and then exported to the United States are treated by Customs as a product of the foreign country rather than as a product of the insular possession for purposes of implementing quotas established by the foreign country’s textile trade agreement with the United States. Essentially, then, the primary issue is whether the delegation of authority to the President to administer the United States’ textile trade program under" }, { "docid": "21773060", "title": "", "text": "“shall” in both pieces of legislation, commanded the agencies to issue interim final rules. See Asiana Airlines, 134 F.3d at 395 (“the Administrator shall publish ... interim final rule[sj”) (citing 49 U.S.C. § 45301(b)(2)) (emphasis added); Methodist Hosp., 38 F.3d at 1236 n.18 (“[t]he Secretary shall cause to be published ... a notice of the interim final DRG prospective payment rates ... without the necessity for consideration of comments....”) (citing 97 Stat. 168-69) (emphasis added). By contrast, the HIPAA provision here states that a “Secretary may promulgate any interim final rules as the Secretary determines are appropriate.... ” See 29 U.S.C. § 1191c; 26 U.S.C. § 9833; 42 U.S.C. § 300gg-92 (emphasis added). The use of the term “may” is permissivé rather than mandatory. See Barlow v. Collins, 397 U.S. 159, 165-66, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) (statute authorizing Secretary of Agriculture to promulgate regulations “as he may deem proper” does not preclude judicial review). There is, accordingly, no support in HIPAA for the Agencies’ avoidance of the notice and comment procedure. ii. Good Cause Exception to Bypass Notice and Comment The second exception to notice- and-comment rulemaking permits agencies to utilize IFRs “for good cause.” See 5 U.S.C. § 553. More specifically, the APA provides that notice and comment may be waived “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Id. The “circumstances justifying reliance on the good cause exception are ‘indeed rare’ and will be accepted only after the court has examined closely proffered rationales justifying the elimination of public procedures.” Natural Res. Def. Council, Inc. v. EPA, 683 F.2d 752, 764 (3d Cir. 1982). The Third Circuit has cautioned that the good cause exception should be “narrowly construed.” United States v. Reynolds, 710 F.3d 498, 507 (3d Cir. 2013) (citations omitted). Since the APA requires agencies availing themselves of the good cause exception to state their “finding[s] and a brief statement of reasons” for good cause" } ]

[ { "docid": "22536992", "title": "", "text": "Mr. Justice Powell delivered the opinion of the Court. In this case, brought under 42 U. S. C. § 1983, we consider the elements and prerequisites for recovery of damages by students who were suspended from public elementary and secondary schools without procedural due process. The Court of Appeals for the Seventh Circuit held that the students are entitled to recover substantial nonpunitive damages even if their suspensions were justified, and even if they do not prove that any other actual injury was caused by the denial of procedural due process. We disagree, and hold that in the absence of proof of actual injury, the students are entitled to recover only nominal damages. I Respondent Jarius Piphus was a freshman at Chicago Vocational High School during the 1973-1974 school year. On January 23, 1974, during school hours, the school principal saw Piphus and another student standing outdoors on school property passing back and forth what the principal described as an irregularly shaped cigarette. The principal approached the students unnoticed and smelled what he believed was the strong odor of burning marihuana. He also saw Piphus try to pass a packet of cigarette papers to the other student. When the students became aware of the principal’s presence, they threw the cigarette into a nearby hedge. The principal took the students to the school’s disciplinary office and directed the assistant principal to impose the “usual” 20-day suspension for violation of the school rule against the use of drugs. The students protested that they had not been smoking marihuana, but to no avail. Piphus was allowed to remain at school, although not in class, for the remainder of the school day while the assistant principal tried, without success, to reach his mother. A suspension notice was sent to Piphus’ mother, and a few days later two meetings were arranged among Piphus, his mother, his sister, school officials, and representatives from a legal aid clinic. The purpose of the meetings was not to determine whether Piphus had been smoking marihuana, but rather to explain the reasons for the suspension. Following an unfruitful exchange of" } ]

[ { "docid": "11135615", "title": "", "text": "abstract ‘value’ or ‘importance’ of constitutional rights.” Where the plaintiff has not suffered an actual injury as a result of defendant’s violation of the constitutional right, only nominal damages may be awarded. With these principles in mind, the Court turns to Housing Works’ claim for damages for the alleged injury to its mission. 1. Are Mission Nonfulfillment Damages Compensable as a Matter of Law? Housing Works contends that defendants’ alleged retaliation: “hampered the effectiveness of Housing Works’ constitutionally protected activities because it prevented Housing Works from (1) recruiting new members (as every person served by Housing Works becomes a member); (2) disseminating its views to the people it would have served under the contracts; (3) encouraging the people it would have served under the contracts to participate in Housing Works’ advocacy activities; and (4) advocating on behalf of the people Housing Works would have served under the contracts.” In consequence, it maintains, it is entitled to damages for this alleged inability to fulfill its mission. Defendants argue that the magistrate judge erred in concluding that mission nonfulfillment damages are compensable as a matter of law. The question for the Court, therefore, is whether Housing Works conceivably could prove some set of facts that would permit recovery for an alleged injury to its mission. Courts have recognized that an organization may suffer compensable injury as a result of an inability to fulfill its mission in consequence of a constitutional tort. In Irish Lesbian and Gay Organization (“ILGO”) v. Giuliani, the Second Circuit addressed damages sought by an organization that alleged that the City unconstitutionally denied it a permit for a protest march along Fifth Avenue before the annual St. Patrick’s Day Parade, from which it had been excluded. In reversing the district court’s determination that ILGO did not have standing, the court held that “[a]n organization, as well as an individual, may suffer from the lost opportunity to express its message.” It explained further, however, that “any recovery must be based on actual loss.” In the absence of any actual loss, the court noted, ILGO could recover only nominal damages. The" }, { "docid": "14888854", "title": "", "text": "must be shown, inter alia, that the members of the Islamic Society would have standing to sue on their own. See Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 342-43, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46 n. 2 (2d Cir.2002). Thus, Plaintiffs must demonstrate that the members of the Islamic Society are “suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case .... ” Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); accord Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir.1998). Plaintiffs argue that members of the Islamic Society have suffered an “injury” because they have been subjected to the “adverse employment action” discussed above. (PI. Reply at 15.) However, because the Court has concluded that Plaintiffs failed to demonstrate that they suffered an “adverse employment action,” their argument regarding the standing of the Islamic Society’s members — based on the so-called “injury” resulting therefrom — necessarily fails. In other words, Plaintiffs’ purely subjective feelings about the decision not to hire Imam Abdulmalik is insufficient to demonstrate that Plaintiffs have been “injured” such that they have standing to bring an Establishment Clause claim. Accordingly, neither the Islamic Society nor James has standing to sue on behalf of the Islamic Society’s members. Leave to amend the complaint to allege an Establishment Clause claim on behalf of James or the Islamic Society’s other members therefore must be denied. However, it appears that the Islamic Society has standing to sue on its own behalf. The proposed Second Amended Complaint alleges that the decision not to hire Imam Abdulmalik, among other things, has (i) damaged the Islamic Society’s ability to recruit new members, and (ii) caused a significant drain on the Islamic Society’s resources. (See Proposed Sec. Am. Compl. ¶¶ 21-23.) These allegations, if proven, would demonstrate that the Islamic Society has suffered an “actual ... injury in fact that is fairly traceable to" }, { "docid": "20385324", "title": "", "text": "review remains the same. Whether a plaintiff has standing to sue is a question of law that we review de novo. Shain v. Ellison, 356 F.3d 211, 214 (2d Cir.2004). II. Standing To have standing, a plaintiff must demonstrate an “actual and imminent, not conjectural or hypothetical” threat of a “concrete and particularized” injury in fact that is “fairly traceable to the challenged action of the defendant” and that “a favorable judicial decision will [likely] prevent or redress.” Summers v. Earth Island Inst., 555 U.S. 488, 129 S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). An organization can have standing to sue in one of two ways. It may sue on behalf of its members, in which case it must show, inter alia, that some particular member of the organization would have had standing to bring the suit individually. See, e.g., Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (calling this approach “representational” standing); Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir.1998) (calling it “associational” standing). In addition, an organization can “have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy.” Warth, 422 U.S. at 511, 95 S.Ct. 2197; Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 n. 19, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (“[Ojrganizations are entitled to sue on their own behalf____”). Under this theory of “organizational” standing, the organization is just another person — albeit a legal person— seeking to vindicate a right. To qualify, the organization itself “must ‘meet[] the same standing test that applies to individuals.’ ” Irish Lesbian & Gay Org., 143 F.3d at 649 (quoting Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C.Cir.1990)) (alteration in the original); see also Nnebe v. Daus, 644 F.3d 147, 156-57 (2d Cir.2011, revised May 31, 2011) (confirming that “nothing prevents an organization from bringing" }, { "docid": "11784772", "title": "", "text": "enjoy.” Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Under this rubric of so-called “organizational” standing, the organization “must meet the same standing test that applies to individuals by showing actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision.” Irish Lesbian & Gay Org., 143 F.3d at 649 (alterations, citations, and internal quotation marks omitted). Second, an organization may also assert “associational” standing, that is, standing to bring suit on behalf of its members. Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 342-43, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Associational standing consists of three requirements: “(a) [the organization’s] members would otherwise have standing to sue in their own right; (b) the interests [the organization] seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Id. at 343, 97 S.Ct. 2434. b. Analysis Defendant argues that Plaintiff has failed to meet its burden in proving the first of the three standing requirements— the requirement that Plaintiff demonstrate that it has suffered an “injury in fact.” (See Def.’s Opp’n at 7-10; Def.’s Reply at 4-5.) Defendant first contends that Plaintiff has failed to allege “specific and concrete membership injury.” (Def.’s Opp’n at 8 (emphasis in original).) Plaintiff, however, purports to assert only organizational standing, not associational standing (see Pl.’s Reply at 1-2 & n. 1; see also Nov. 20, 2009 Oral Argument Tr. at 14:13-15:5, 38:15-16, 57:18-24), and as noted, an organization “may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy.” Warth, 422 U.S. at 511, 95 S.Ct. 2197 (emphasis added); see also Irish Lesbian & Gay Org., 143 F.3d at 649-50. Accordingly, the question becomes whether Plaintiff, as an organization, has met its burden of demonstrating an “injury in fact — an invasion of a legally protected interest which is" }, { "docid": "21164462", "title": "", "text": "547, 554 (6th Cir.2002); NRA of Am. v. Magaw, 132 F.3d 272, 285 (6th Cir.1997). But the school district’s — again, the actual defendant here — former discipline policy regarding instances of harassment or discrimination states that it “shall not be interpreted as applying to speech otherwise protected under the state or federal constitutions where the speech does not otherwise materially or substantially disrupt the educational process.” I see no evidence in the record that the school district would have punished him for protected speech in violation of its own policy. We cannot find a school district constitutionally liable for chilling student speech every time a student chooses caution over risking possible discipline. Nor do I see how nominal damages would redress an injury of “past chill.” Nominal damages is, as Morrison’s counsel discussed at oral argument, a vehicle for a declaratory judgment. See Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1265 (10th Cir.2004) (McConnell, J., concurring). While we may have allowed a nominal-damage claim to go forward in an otherwise-moot case, see Murray v. Bd. of Trs., 659 F.2d 77, 79 (6th Cir.1981), we are not required to relax the basic standing requirement that the relief sought must redress the injury that occurred. And nominal damages based on a regime no longer in existence has no effect on the parties’ legal rights. See Utah Animal Rights Coal., 371 F.3d at 1264. This case should be over. The school district has, at the behest of the plaintiffs and intervenors, adopted a policy that properly balances the district’s duty to protect openly gay and lesbian students with the important First Amendment right of allowing students to speak their minds. Keeping this case alive for a determination on the constitutionality of an obsolete code of conduct in the hope of awarding the plaintiff a single dollar vindicates no interest and trivializes the important business of the federal courts in protecting actual constitutional violations. My colleagues on the panel having seen the matter differently, I respectfully dissent. . Husain v. Springer, 494 F.3d 108, 136 (2d Cir.2007) (Jacobs," }, { "docid": "17828481", "title": "", "text": "congratulate, the Town for its efforts with respect to the Tower, is that plaintiffs are simply unaware or unwilling to acknowledge the practical limitations imposed by the Act, on the Town's ability to prohibit, or otherwise circumscribe, the development of telecommunications facilities which serve the public. . The Court notes that even if New York law would recognize-a right to a hearing in this case, the deprivation of that right would be of little practical significance. As discussed above, there can be little doubt that under the Federal Telecommunications Act ultimately the Permits for some sort of tower would have been issued, whether on consent, or after litigation. Thus, even if plaintiffs were deprived of procedural due process, they would only be entitled to nominal damages. Irish Lesbian and Gay Organization v. Giuliani, 143 F.3d 638, 651 (2d Cir.1998) (only nominal damages are available in actions alleging a deprivation of constitutionally protected rights, where there is no actual injury) (citing Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (holding that students who had been suspended from school without a hearing could receive only nominal damages if the jury found they would have been suspended even if their procedural due process rights had not been violated)); see also Cifarelli v. Village of Babylon, 894 F.Supp. 614, 622 (E.D.N.Y.1995) (\"Even though plaintiffs right to procedural due process was violated by defendants ... if defendants can establish that [plaintiff] would have been terminated even after a proper pre-termination hearing, [plaintiff) will be entitled to an award of only nominal damages.\" aff'd., 93 F.3d 47 (2d Cir.1996)) . Our conclusion in this regard is supported by the fact that the statute itself calls for the appointment of a \"lead” agency to represent the cumulative interests of a locality’s citizens. See ECL 8-0111." }, { "docid": "22247800", "title": "", "text": "concerned about ILGO’s standing to sue on behalf of its members. Moreover, the City has never denied ILGO the right to protest in the proper application of Section 10 — 110 of the City’s Administrative Code, the application of constitutional public safety concerns and reasonable time, place and manner restrictions. ILGO has not alleged that the St. Patrick’s Day Parade is the only method available to it for expression of the Lesbian and Gay philosophy. One hundred to one hundred and fifty large parades occur annually in Manhattan, 15 of which are normally accommodated on Fifth Avenue. All of these, professing some element of First Amendment rights. In this case, the city has committed no violation of the public safety concerns, reasonable time, place or manner required by Section 10-110 by its denial of the parade permit requested by ILGO. ILGO has no standing to bring this action on behalf of its members because ILGO fails the third prong of the test set forth in Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343-45, 97 S.Ct. 2434, 2441-42, 53 L.Ed.2d 383 (1977). Each member of ILGO will have a different concern for which he or she would claim damages. Nothing in this lawsuit would permit these individuals to prove their individual claim without personal participation in an allegation of an individual denial of a First Amendment right and the damages flowing from a constitutional violation. Neither is present here. (c) Damages Since I do hot find any constitutional violation in the denial of the permit to ILGO, there can be no damage, either compensatory or nominal. Damages must be related to and result from a constitutional violation. ILGO’s claim of damage is also defective on any pleading of causation. What ILGO pleads as damage in paragraph 48 of its complaint does not flow from an inability to parade in the St. Patrick’s Day Parade. The injury claimed is that “Members of ILGO have been subjected to family rejection and public ridicule, have been told they are not Irish, have been arrested and have lost their jobs.” None of" }, { "docid": "11784771", "title": "", "text": "omitted)). These prudential limitations include “the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiffs complaint fall within the zone of interests protected by the law invoked.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Although the Supreme Court has “not exhaustively defined the prudential dimensions of the standing doctrine,” Newdow, 542 U.S. at 12, 124 S.Ct. 2301, it is well established that the limitation on raising the rights of a third party does not preclude an organization from establishing standing. Specifically, an organization may establish standing in two ways. See Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir.1998); see also Nnebe v. Daus, 665 F.Supp.2d 311, 320-21 (S.D.N.Y.2009). First, “[t]here is no question that an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy.” Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Under this rubric of so-called “organizational” standing, the organization “must meet the same standing test that applies to individuals by showing actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision.” Irish Lesbian & Gay Org., 143 F.3d at 649 (alterations, citations, and internal quotation marks omitted). Second, an organization may also assert “associational” standing, that is, standing to bring suit on behalf of its members. Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 342-43, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Associational standing consists of three requirements: “(a) [the organization’s] members would otherwise have standing to sue in their own right; (b) the interests [the organization] seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Id. at 343, 97 S.Ct. 2434. b. Analysis" }, { "docid": "22939429", "title": "", "text": "concerned, § 1997e(e) fails to achieve this purpose. Cf. Cassidy v. Ind. Dep’t of Corr., 199 F.3d 374, 376 (7th Cir.2000) (holding that § 1997e(e) applies to constitutional torts). The difficulty arises because § 1983, unlike common law tort actions, does not require plaintiffs to establish an actual injury as an element of the prima facie case. See, e.g., Greenwich Citizens Comm. v. Counties of Warren and Washington Indus. Dev. Agency, 77 F.3d 26, 29-30 (2d Cir.1996) (“[A] plaintiff must show that (1) ‘the conduct complained of was committed by a person acting under color of state law,’ and (2) ‘this conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States.)’ ” (quoting Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)); see generally Michael Irvine, Using 12 U.S.C. § 1983 and 28 U.S.C. § 1331 to Obtain Relief from Violations of Federal Law, 31 Colum. Hum. Rts. L.Rev. 305, 307-326 (2000). The failure of prisoners to plead or establish a compensable actual injury in a § 1983 constitutional tort claim, therefore, only precludes the recovery of compensatory damages, but does not lead to the dismissal of the underlying claim. Nominal damages remain available and the action is entitled to proceed. See Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); see, e.g., Diesel v. Town of Lewisboro, 232 F.3d 92, 108 (2d Cir.2000) (“Plaintiffs may recover nominal damages under § 1983 ‘in the absence of proof of actual injury.)’ ” (quoting Atkins v. New York City, 143 F.3d 100, 103 (2d Cir.1998))); Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 651 (2d Cir.1998) (same); see also Floyd v. Laws, 929 F.2d 1390, 1402 (9th Cir.1991); Santiago v. Garcia, 821 F.2d 822, 829 (1st Cir.1987). Indeed, our circuit precedent holds that it is error for courts not to award nominal damages in § 1983 actions where a constitutional violation is established. See Robinson v. Cattaraugus County, 147 F.3d 153, 162 (2d Cir.1998); see also Draper v. Coombs, 792 F.2d" }, { "docid": "5746667", "title": "", "text": "328 (1997); Koski v. Gainer, 1993 WL 488409 *2 (N.D.Ill. Nov.22, 1993). See also Byers v. City of Albuquerque, 150 F.3d 1271, 1275-76 (10th Cir.1998) (dictum). But compare Grahek v. City of St. Paul, Minn., 84 F.3d 296, 298 (8th Cir.1996). Plaintiffs present no evidence that they suffered emotional injury as a result of racial standardization, and it may be doubted that they can. As Price, 93 F.3d at 1246, 1248, makes clear, the injury must result from the racial standardization itself, not the denial of the promotion, and proof of emotional injury must be supported by more than just vague, conclusory testimony of humiliation, betrayal, or other emotional injury. See also Allison v. Citgo Petroleum Corp., 151 F.3d 402, 416 (5th Cir.1998). In response to summary judgment, plaintiffs point to no evidence of emotional injury. However, in responding to summary judgment, the nonmovant need only provide evidence as to factual issues raised by the movant. Defendant only argues that emotional injury cannot support standing; it does not contend that plaintiffs cannot show emotional injury. Since no factual issue was raised, plaintiffs were not obliged to present evidence showing they suffered emotional harm. At this juncture, allegations of emotional injury contained in the complaint are sufficient to show that there was emotional injury. But even if no emotional injury occurred, the 244 plaintiffs would still have standing. They present adequate proof of unequal treatment based on race. Under § 1983, plaintiffs are entitled to nominal damages where they suffered unconstitutional treatment that caused no actual damages. Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); Briggs v. Marshall, 93 F.3d 355, 359-60 (7th Cir.1996); Irish Lesbian & Gay Organization v. Giuliani 143 F.3d 638, 651 (2d Cir.1998); Price, 93 F.3d at 1246. Nominal damages are sufficient to support standing. Irish Lesbian, 143 F.3d at 651; Suss v. American Society for Prevention of Cruelty to Animals, 823 F.Supp. 181, 191 (S.D.N.Y.1993). Defendant makes no argument regarding the prudential requirements for standing. The only one that possibly could be raised would be the argument that emotional injuries" }, { "docid": "5746668", "title": "", "text": "Since no factual issue was raised, plaintiffs were not obliged to present evidence showing they suffered emotional harm. At this juncture, allegations of emotional injury contained in the complaint are sufficient to show that there was emotional injury. But even if no emotional injury occurred, the 244 plaintiffs would still have standing. They present adequate proof of unequal treatment based on race. Under § 1983, plaintiffs are entitled to nominal damages where they suffered unconstitutional treatment that caused no actual damages. Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); Briggs v. Marshall, 93 F.3d 355, 359-60 (7th Cir.1996); Irish Lesbian & Gay Organization v. Giuliani 143 F.3d 638, 651 (2d Cir.1998); Price, 93 F.3d at 1246. Nominal damages are sufficient to support standing. Irish Lesbian, 143 F.3d at 651; Suss v. American Society for Prevention of Cruelty to Animals, 823 F.Supp. 181, 191 (S.D.N.Y.1993). Defendant makes no argument regarding the prudential requirements for standing. The only one that possibly could be raised would be the argument that emotional injuries do not fall within the zone of interests protected by the Constitution or § 1983. In light of Carey, however, it would appear that such interests are protected. See Price, 93 F.3d at 1248. In any event, the prudential requirements will not be considered because they are not jurisdictional and should not be considered when not raised by the opposing party. MacLauchlan v. Prudential Insurance Co. of America, 970 F.2d 357, 359 n. 1 (7th Cir.1992); Lindley v. Sullivan, 889 F.2d 124, 129 (7th Cir.1989). All the individual plaintiffs have standing to pursue their claims. However, as to the 244 individual plaintiffs whose promotions were not affected by any equal protection violation, defendant is entitled to summary judgment limiting any damages claims by those plaintiffs to emotional injury, if any, or nominal damages. They are not entitled to any damages for lost income or other similar economic damages. The 82 plaintiffs who may still seek damages based on lost income because of the denial of a promotion are listed in defendant’s summary judgment exhibit 2," }, { "docid": "11135616", "title": "", "text": "mission nonfulfillment damages are compensable as a matter of law. The question for the Court, therefore, is whether Housing Works conceivably could prove some set of facts that would permit recovery for an alleged injury to its mission. Courts have recognized that an organization may suffer compensable injury as a result of an inability to fulfill its mission in consequence of a constitutional tort. In Irish Lesbian and Gay Organization (“ILGO”) v. Giuliani, the Second Circuit addressed damages sought by an organization that alleged that the City unconstitutionally denied it a permit for a protest march along Fifth Avenue before the annual St. Patrick’s Day Parade, from which it had been excluded. In reversing the district court’s determination that ILGO did not have standing, the court held that “[a]n organization, as well as an individual, may suffer from the lost opportunity to express its message.” It explained further, however, that “any recovery must be based on actual loss.” In the absence of any actual loss, the court noted, ILGO could recover only nominal damages. The Seventh Circuit concluded similarly that an organization may recover for injuries to its mission in Watseka v. Illinois Public Action Council (“IPAC”). The district court there awarded the plaintiff damages in the amount of $8,300 as a result of defendant’s violation of its First Amendment rights, of which $5,000 was for the loss of its First Amendment rights. IPAC had alleged as injuries “(1) its inability to recruit new members in Watseka, (2) its inability to disseminate its views to Watseka residents, and (3) its inability to encourage Watseka citizens to support IPAC position on various issues by signing petitions or contracting local legislators.” On appeal, the defendant argued that the plaintiff could obtain only nominal damages for the loss of the First Amendment rights. The Seventh Circuit upheld the award, concluding that the district court had based the $5,000 figure on the “specific compensable, non-abstract harm to IPAC [that] can be seen from the specific injuries alleged by IPAC which we noted above.” More recently, the Ninth Circuit upheld also a damage award for" }, { "docid": "22939430", "title": "", "text": "compensable actual injury in a § 1983 constitutional tort claim, therefore, only precludes the recovery of compensatory damages, but does not lead to the dismissal of the underlying claim. Nominal damages remain available and the action is entitled to proceed. See Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); see, e.g., Diesel v. Town of Lewisboro, 232 F.3d 92, 108 (2d Cir.2000) (“Plaintiffs may recover nominal damages under § 1983 ‘in the absence of proof of actual injury.)’ ” (quoting Atkins v. New York City, 143 F.3d 100, 103 (2d Cir.1998))); Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 651 (2d Cir.1998) (same); see also Floyd v. Laws, 929 F.2d 1390, 1402 (9th Cir.1991); Santiago v. Garcia, 821 F.2d 822, 829 (1st Cir.1987). Indeed, our circuit precedent holds that it is error for courts not to award nominal damages in § 1983 actions where a constitutional violation is established. See Robinson v. Cattaraugus County, 147 F.3d 153, 162 (2d Cir.1998); see also Draper v. Coombs, 792 F.2d 915, 921-22 (9th Cir.1986) (error for district court to dismiss § 1983 action for lack of actual injury since plaintiff still had claim for nominal damages); Farrar v. Cain, 756 F.2d 1148, 1152 (5th Cir.1985) (abuse of discretion for district court not to award nominal damages for plaintiff who established constitutional violation); see generally Mark T. Morrell, Note, Who Wants Nominal Damages Anyway? The Impact of an Automatic Entitlement to Nominal Damages Under § 1988, 13 Regent U.L.Rev. 225, 234-36 (2000-01) (discussing § 1983’s automatic award of nominal damages for constitutional torts). By only precluding compensatory recovery for purely emotional injuries in § 1983 suits, § 1997e(e) is unlikely to deter prisoner litigants from filing frivolous claims. I believe this to be so for two reasons. First, punitive damages remain available. See, e.g., Robinson, 147 F.3d at 161 (holding that “in § 1983 cases ... punitive damages may be awarded even in the absence of a compensatory award”). The potential for a windfall punitive award — no matter how remote — provides a powerful economic" }, { "docid": "17828480", "title": "", "text": "While a federal courthouse is a \"smokeless industry” that confers substantial benefits on a community, vocal local opponents to the 500 Pearl Street project were concerned that the new courthouse would cast a shadow. That, was a typical SEQRA issue. . We are cited to nothing in SEQRA which requires a parly to litigate a case to the bitter end. . It should also be noted that under New York law, cellular providers are considered \"public utilities,\" and are entitled to wider zoning latitude in order to provide their public services. See Cellular Telephone Co. v. Rosenberg, 82 N.Y.2d 364, 604 N.Y.S.2d 895, 624 N.E.2d 990 (1993). . Had litigation arisen under the Telecommunications Act over the Town's opposition to the original two 125 and 180 foot towers, BAM and Cell-One might well have prevailed. Both the Complaint and plaintiffs' papers submitted for purposes of this motion ignore the impact of the Telecommunications Act on the Town's decision to agree to the Consent Judgment. Indeed, one explanation for plaintiffs' election to sue, rather than to congratulate, the Town for its efforts with respect to the Tower, is that plaintiffs are simply unaware or unwilling to acknowledge the practical limitations imposed by the Act, on the Town's ability to prohibit, or otherwise circumscribe, the development of telecommunications facilities which serve the public. . The Court notes that even if New York law would recognize-a right to a hearing in this case, the deprivation of that right would be of little practical significance. As discussed above, there can be little doubt that under the Federal Telecommunications Act ultimately the Permits for some sort of tower would have been issued, whether on consent, or after litigation. Thus, even if plaintiffs were deprived of procedural due process, they would only be entitled to nominal damages. Irish Lesbian and Gay Organization v. Giuliani, 143 F.3d 638, 651 (2d Cir.1998) (only nominal damages are available in actions alleging a deprivation of constitutionally protected rights, where there is no actual injury) (citing Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (holding" }, { "docid": "10458225", "title": "", "text": "KOELTL, District Judge: Plaintiff Irish Lesbian and Gay Organization (“ILGO”) brings this action against New York City, its Mayor, and its Police Commissioner (collectively “the City”) challenging the denial of ILGO’s application for a permit to conduct a parade on March 16, 1996 prior to the annual St. Patrick’s Day Parade (the “Parade”) conducted by the New York County Board of the Ancient Order of Hibernians (the “AOH”). Specifically, ILGO’s permit application sought approval for a group of 1,500 to 2,000 people to march north along Fifth Avenue from 42nd Street to 86th Street — the same route as AOH’s parade— starting at 9:30 a.m. Judge John F. Keenan of this Court denied a similar challenge to the City’s refusal to grant a substantially similar permit to ILGO last year. See Irish Lesbian and Gay Org. v. Bratton, 882 F.Supp. 315 (S.D.N.Y.) (“ILGO 1995”), aff'd, 52 F.3d 311 (2d. Cir.1995) (table). ILGO contends that Section 10-110 of the Administrative Code of the City of New York, the provision under which the City purportedly considered and denied ILGO’s application, violates the First and Fourteenth Amendments to the United States Constitution both on its face and as applied to ILGO in this instance. ILGO also asserts violations of Article I, Sections 8 and 11 of the New York State Constitution. Seeking in-junctive and declaratory relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2201 respectively, ILGO filed the Complaint and brought on a Motion for Preliminary Injunction by Order to Show Cause dated February 26, 1996. The Court denied ILGO’s motion for expedited discovery, brought by the same Order to Show Cause, as well as the City’s two applications to transfer this case to Judge Keenan and to entertain an interim motion to dismiss prior to consideration of the preliminary injunction motion. See Irish Lesbian and Gay Org. v. Giuliani 918 F.Supp. 728 (S.D.N.Y.1996). Shortly before the hearing on ILGO’s motion for a preliminary injunction, AOH moved to intervene and served papers in opposition to the motion, and ILGO submitted papers in response. The Court granted AOH’s motion to intervene at" }, { "docid": "20385325", "title": "", "text": "343 (1975) (calling this approach “representational” standing); Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir.1998) (calling it “associational” standing). In addition, an organization can “have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy.” Warth, 422 U.S. at 511, 95 S.Ct. 2197; Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 n. 19, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (“[Ojrganizations are entitled to sue on their own behalf____”). Under this theory of “organizational” standing, the organization is just another person — albeit a legal person— seeking to vindicate a right. To qualify, the organization itself “must ‘meet[] the same standing test that applies to individuals.’ ” Irish Lesbian & Gay Org., 143 F.3d at 649 (quoting Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C.Cir.1990)) (alteration in the original); see also Nnebe v. Daus, 644 F.3d 147, 156-57 (2d Cir.2011, revised May 31, 2011) (confirming that “nothing prevents an organization from bringing a § 1983 suit on its own behalf so long as it can independently satisfy the requirements of Article III standing,” and that “only a perceptible impairment of an organization’s activities is necessary for there to be an injury in fact” satisfying the requirements of standing (internal quotation marks omitted)). The NYCTA claims that the NYCLU lacks standing because it failed to identify any individual member of the NYCLU who currently has standing to challenge the TAB access policy. But as the district court explained in its lucid opinion, the NYCLU does not bring its challenge under an associational/representational theory of standing. Rather, it sues to vindicate its own rights as an organization with goals and projects of its own. NYCLU, 675 F.Supp.2d at 425-26. As it does not sue on behalf of injured members, it need not identify any that have standing. The individuals described in the NYCLU’s submissions as having attempted to observe TAB hearings are not listed because they are injured members of the organization. They are, instead, its agents or representatives," }, { "docid": "22247761", "title": "", "text": "Judge REAL concurs and dissents in a separate opinion. OAKES, Senior Circuit Judge: The Irish Lesbian and Gay Organization (“ILGO”) appeals from the judgment of the United States District Court for the Southern District of New York; John G. Koeltl, Judge, dismissing their suit against the City of New York, its Mayor, and its Police Commissioner (collectively, “the Defendants”). ILGO sued the Defendants under 42 U.S.C. § 1983 for violating ILGO’s free speech and equal protection rights by denying ILGO a permit to hold a parade on 5th Avenue in advance of the 1996 annual St. Patrick’s Day parade put on by the New York County Board of the Ancient Order of Hibernians (“AOH”). The District Court held that ILGO’s facial challenge to New York City’s parade-permitting ordinance was precluded by a decision in a similar suit brought by ILGO in 1995, and that ILGO’s as-applied challenges to the permit denial were either moot or barred for lack of standing. We affirm in part and reverse in part. This appeal presents the issue whether a judgment to deny a preliminary injunction and dismiss all remaining claims before discovery or a trial on the merits can have preclusive effect if a party attempts to raise the same claim against the same parties one year later. We find that the initial judgment does preclude the later suit where the aggrieved party, here ILGO, failed to appeal the district court’s dismissal of its claims after the preliminary injunction hearing. However, we also hold that ILGO’s as-applied challenge is not barred by either mootness or lack of standing. I. Background ILGO, a group of lesbians and gay men of Irish descent, has since 1991 sought to participate in the annual St. Patrick’s Day Parade (“the Parade”) hosted by AOH. In 1992 and 1993 ILGO filed suit in federal district court to compel AOH to allow it to march in the Parade. These challenges were denied under reasoning anticipating the Supreme Court’s decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). See New York" }, { "docid": "22247790", "title": "", "text": "be redressed by a favorable decision in this case, ILGO’s complaint, broadly interpreted, does allege that the City’s refusal to allow ILGO lawfully to protest its exclusion from the Parade has damaged ILGO’s reputation among the Irish community in New York. Such an injury is sufficient to demonstrate standing to sue for compensatory damages, especially since one of ILGO’s stated purposes is to combat prejudice against its members within the Irish community. Cf. South- era Mutual Help Assoc., Inc. v. Califano, 574 F.2d 518, 524 (D.C.Cir.1977) (finding that a nonprofit health organization had standing to challenge a Department of Health, Education, and Welfare decision to discontinue funding one of its programs where the decision allegedly affected the good name and reputation of the organization among the funding community). Finally, ILGO also has standing to assert a claim for nominal damages. Nominal damages are available in actions alleging a violation of constitutionally protected rights, even without proof of any actual injury. See Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1053, 55 L.Ed.2d 252 (1978) (approving an award of nominal damages to student who had been suspended without an opportunity to respond to the charges against him in violation of his procedural due process rights). Although ILGO did not specifically request nominal damages in its pleadings, we have not precluded the award of nominal damages in the past if the complaint explicitly sought compensatory damages. See, e.g., Beyah v. Coughlin, 789 F.2d 986, 989 (2d Cir.1986) (finding that prisoner’s § 1983 claim seeking only compensatory and punitive damages was not moot because even if plaintiff were “not [] able to establish actual damages ... Beyah will be entitled to recover at least nominal damages”). Therefore, even if ILGO is not able to produce specific facts demonstrating an actual injury at successive stages of the litigation, ILGO may still be entitled to nominal damages upon proof of discrimination by the Defendants. Conclusion For the foregoing reasons, we uphold the district court’s dismissal of ILGO’s facial challenge, but reverse its dismissal of ILGO’s as-applied claims because ILGO’s requests for declaratory and" }, { "docid": "22247799", "title": "", "text": "the claims of ILGO applying res judicata and collateral estoppel, those claims certainly are now moot. Although the district court dismissed the claims under Rule 12(c) of the Federal Rules of Civil Procedure, the hearing on the preliminary injunction met standard' sufficient to provide the facts necessary to join all issues alleged in the pleadings and make them then appealable to this Court. (b) Standing ILGO brought this action seeking “compensatory damages to redress the constitutional deprivations it has suffered.” ILGO’s prayer was only: “awarding plaintiff compensatory damages against all defendants, jointly and severally, in an amount....” No claim is made for nominal damages. Moreover, as the trial court relates, “ILGO argues affirmatively in its. brief that it does not claim nominal damages, but that its damages are substantial and predicated upon real and compensable injuries.” It is too late now in this Court “to breathe life into a moribund dispute.” McCabe v. Nassau County Medical Ctr., 453 F.2d 698, 702 (2d Cir.1971). There being no cognizable constitutional claim, there is no need to be concerned about ILGO’s standing to sue on behalf of its members. Moreover, the City has never denied ILGO the right to protest in the proper application of Section 10 — 110 of the City’s Administrative Code, the application of constitutional public safety concerns and reasonable time, place and manner restrictions. ILGO has not alleged that the St. Patrick’s Day Parade is the only method available to it for expression of the Lesbian and Gay philosophy. One hundred to one hundred and fifty large parades occur annually in Manhattan, 15 of which are normally accommodated on Fifth Avenue. All of these, professing some element of First Amendment rights. In this case, the city has committed no violation of the public safety concerns, reasonable time, place or manner required by Section 10-110 by its denial of the parade permit requested by ILGO. ILGO has no standing to bring this action on behalf of its members because ILGO fails the third prong of the test set forth in Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333," }, { "docid": "22247789", "title": "", "text": "factual allegations of harm to its reputation arising from the Defendants’ conduct to show standing. See Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 58 (2d Cir.1994) (holding that, at the pleading stage, general factual allegations of injury resulting from defendant’s conduct may suffice to demonstrate standing); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992) (“[0]n a motion to dismiss ‘we presume that general allegations embrace those specific facts that are necessary to support the claim.’ ”) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 3189, 111 L.Ed.2d 695 (1990)). ILGO alleged in its complaint that among the “many ways” ILGO had been harmed by its inability to protest lawfully its exclusion from the Parade, “[p]erhaps most significantly, the exclusion of and related hostility toward ILGO have divided and isolated ILGO from the rest of the Irish community.” Although AOH’s exclusion of ILGO from the Parade is not traceable to the Defendants’ conduct, and would not be redressed by a favorable decision in this case, ILGO’s complaint, broadly interpreted, does allege that the City’s refusal to allow ILGO lawfully to protest its exclusion from the Parade has damaged ILGO’s reputation among the Irish community in New York. Such an injury is sufficient to demonstrate standing to sue for compensatory damages, especially since one of ILGO’s stated purposes is to combat prejudice against its members within the Irish community. Cf. South- era Mutual Help Assoc., Inc. v. Califano, 574 F.2d 518, 524 (D.C.Cir.1977) (finding that a nonprofit health organization had standing to challenge a Department of Health, Education, and Welfare decision to discontinue funding one of its programs where the decision allegedly affected the good name and reputation of the organization among the funding community). Finally, ILGO also has standing to assert a claim for nominal damages. Nominal damages are available in actions alleging a violation of constitutionally protected rights, even without proof of any actual injury. See Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1053, 55 L.Ed.2d 252" } ]

[ { "docid": "11256271", "title": "", "text": "and the subsequent viewing did not exceed the scope of the original examination; and (2) the search was based on Kellar’s authority to consent to a search of the computer. (1) Defendant’s Reasonable Expectation of Privacy Not all invasions of privacy are searches or seizures within the meaning of the Fourth Amendment. See Soldal v. Cook County, Illinois, 506 U.S. 56, 68, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). Only activity that “intrudes upon a reasonable expectation of privacy in [ ] a significant way” constitutes a search subject to the Fourth Amendment reasonableness inquiry. Paige, 136 F.3d at 1017 (quoting United States v. York, 895 F.2d 1026, 1028 (5th Cir.1990)). Although the protection afforded to a person’s computer files and hard drive is not well-defined, the Court finds that the Fourth Amendment protection of closed computer files and hard drives is similar to the protection it affords a person’s closed containers and closed personal effects. See, e.g., United States v. Knoll, 16 F.3d 1313, 1320 (2d Cir.1994) (discussing protection afforded to office files). Outside of automobile searches, a warrant is usually required to search the contents of a closed container, because the owner’s expectation of privacy relates to the contents of that container rather than to the container itself. United States v. Chadwick, 433 U.S. 1, 10-11, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); United States v. Chan, 830 F.Supp. 531, 534 (N.D.Cal.1993) (analogizing data in a pager to contents of a closed container). By placing data in files in a storage device such as his hard drive, the Court finds that Defendant manifested a reasonable expectation of privacy in the contents of those files. These files should therefore be afforded the full protection of the warrant requirement. The Court also finds that Defendant did not lose his reasonable expectation of privacy in his closed, individual files when he gave the hard drive to Kellar. For example, a person’s expectation of privacy is not “destroyed by the fact that the lessor or landlord possesses a key and had maintained a limited right to enter the rental premises for repair," } ]

[ { "docid": "23600644", "title": "", "text": "The Rouse approach would over-deter the police, preventing them from engaging in lawful investigation of containers where any reasonable expectation of privacy has already been eroded. This approach might also lead police to waste valuable time and resources obtaining warrants based on intentionally false or mistaken testimony of private searchers, for fear that, in confirming the private testimony before obtaining a warrant, they would inadvertently violate the Fourth Amendment if they happened upon additional contraband that the private searchers did not see. Because we find that the police do not exceed the scope of a prior private search when they examine particular items within a container that were not examined by the private searchers, we accordingly determine that the police in the instant case did not exceed the scope of the private search if they examined more files on the privately-searched disks than Judith and Brandie had. Suppression of any such files is therefore unnecessary. Finally, Runyan contends that the police exceeded the scope of the private search when they printed out the images of Misty that they had found on the computer and showed these images to employees at the District Attorney’s office in an attempt to identify her. He contends that Misty’s testimony should thus be suppressed because it is the “fruit of the poisonous tree,” i.e., because Misty’s identification was derived from the police’s illegal conduct in exceeding the scope of the private search. We find it unnecessary to decide today whether a police search exceeds the scope of a private search when police searchers identify the subject of a photograph that the private searchers could not identify. There is significant factual dispute in the record regarding whether Melissa. Payne, the intern in the District Attorney’s office, positively identified Misty via printouts of the computerized images or via the Polaroid photographs that Judith found in the duffel bag from Runyan’s barn. Payne testified at the suppression hearing (and the government maintains) that she identified Misty via the Polaroids. Because we must interpret these facts in the light most favorable to the government, we must as sume that" }, { "docid": "23600607", "title": "", "text": "the barn and installed surveillance cameras on the property. On June 17, Judith and Rickie climbed over the fence surrounding the ranch, looked through a window of the ranch house, and saw that Judith’s belongings were inside. On June 18, Judith, Rickie, and a friend, Casey Giles, returned to the ranch house (again by climbing the fence surrounding the ranch) and entered the house through a breakfast-room window. After searching through the house for Judith’s belongings, they entered the barn next to the house, also by climbing through a window. In the barn, Giles opened a black duffel bag and discovered that it contained pornography, compact disks (“CDs”) and computer disks, a Polaroid camera with film, a vibrator, and Polaroid pictures of two individuals, one of whom appeared to be a very young teenager. Under the black bag were two waterproof ammunition boxes containing more pornography. Judith took the black bag back to her Brownwood residence. Later that day, Judith and six of her Mends reentered Runyan’s ranch, this time by cutting the chain on the gate with bolt cutters. For the remainder of the day on June 18 and throughout the day on June 19 they removed items identified by Judith as belonging to her. During their search of the ranch house they found a desktop computer that Judith claimed was hers, surrounded by 3.5 inch floppy disks, CDs, and ZIP disks. Judith asked one of her Mends, Brandie Epp (“Brandie”), to dismantle the desktop computer and to take it to Judith’s Brownwood residence and reassemble it there. In addition to the computer, Brandie took the disks that were lying on the floor surrounding the computer. After reassembling the computer, Brandie viewed approximately twenty of the CDs and floppy disks that had been removed from the ranch and found that they contained images of child pornography. Brandie did not view any of the images on the ZIP disks because the necessary hardware was not connected. After viewing the images, Brandie contacted the sheriffs department. A deputy subsequently arrived, and Brandie turned over twenty-two CDs, ten ZIP disks, and eleven" }, { "docid": "23600621", "title": "", "text": "an electronic listening device— we determined that it was appropriate to analyze only the two Cardoza-Hinojosa factors most applicable to electronic surveillance (i.e., whether the defendant had a subjective expectation of privacy in his conversations and whether he took normal precautions to maintain this privacy). See id. at 213. Similarly, in the instant case— which involves a search of personal property rather than real property — we find that the first, third, and fourth Cardozcu-Hino-josa factors are most directly applicable and should be dispositive. Thus, we analyze whether Runyan had a possessory interest in the personal property searched, whether he exhibited a subjective expectation of privacy in that personal property, and whether he took normal precautions to maintain that expectation of privacy. The parties do not dispute that Runyan had a possessory interest in the materials searched. While the record contains some disputed testimony regarding whether Judith or Runyan was the owner of the desktop computer, neither party contests that Runyan was the sole owner of both the storage containers retrieved from the barn and the disks found near the desktop computer in the office, which were the subjects of the pre-warrant search at issue. In addition, Runyan clearly exhibited a subjective expectation of privacy in both sets of materials in question. Runyan’s placement of the non-electronic pornography in the duffel bag and the waterproof ammunition storage containers found in the barn evidences his subjective expectation of privacy in those materials. See United States v. Villarreal, 963 F.2d 770, 773 (5th Cir.1992) (“Individuals can manifest legitimate expectations of privacy by placing items in closed, opaque containers that conceal their contents from plain view.”). The government concedes that the disks found in the office near the computer are “containers” and that the standards governing closed container searches are applicable. Because neither party contests this point, we assume without deciding that computer disks are “containers.” Accordingly, Runyan appears to have manifested his subjective expectation of privacy in the electronic images in question by storing the images in these “containers.” Cf. United States v. Barth, 26 F.Supp.2d 929, 936-37 (W.D. Tex.1998) (finding that" }, { "docid": "460634", "title": "", "text": "residence. Whether couched as an issue of standing or the existence of a protected interest, the gravamen of the government’s position is that neither appellant enjoyed a subjective expectation of privacy in the premises that society is prepared to recognize as reasonable and, therefore, the . government’s intrusion was not a “search.” The defendants bear the burden of establishing such an expectation by a preponderance of the evidence. Izquierdo’s Fourth Amendment Interest in the Residence As lessee of the residence, Izquierdo’s expectation of privacy was reasonable inasmuch as it had “a source outside of the Fourth Amendment ... by reference to [both] concepts of real property ... law” and “understandings that are recognized and permitted by society.” As we explained in Ibarra, the following factors are considered in the determination whether an interest is protected by the fourth amendment: whether the defendant has a possessory interest in the thing seized or the place searched, whether he has the right to exclude others from that place, whether he has exhibited a subjective expectation of privacy that it would remain free from governmental intrusion, whether he took normal precautions to maintain privacy and whether he was legitimately on the premises. In Cardozar-Hinojosa, we recognized that fourth amendment protections are “presumptively applicable” to premises owned or used by an individual. Izquierdo’s possessory interest in the house therefore creates a strong presumption of his subjective and reasonable expectation of privacy therein. Clearly Izquierdo, as lessee, had the right to exclude others and was legitimately on the premises. The condition of the house itself exhibited measures in excess of “normal precautions to maintain privacy” and further manifested Izquier-do’s subjective expectation of privacy. The entire curtilage of the house was enclosed within a fence. The front porch had a thigh-high iron railing preventing access except through a gate. All windows were covered by iron bars. The government submits that several actions by Izquierdo and his co-defendants evidence a failure by Izquierdo to take “normal precautions to maintain privacy” in the house. No suggestion is persuasive. Stripped to essentials, the government first suggests that when Vega ran" }, { "docid": "23600623", "title": "", "text": "the owner of a computer manifested a reasonable expectation of privacy in the contents of data files by storing them on a computer hard drive); United States v. Chan, 830 F.Supp. 531, 534 (N.D.Cal.1993) (analogizing data in a pager to contents of a closed container). Finally, the record indicates that Run-yan took normal precautions to maintain his privacy with respect to these materials. Runyan’s efforts to secure the barn against intrusion by locking the barn door, putting a chain on the gate to the ranch, and installing video surveillance equipment at the ranch certainly qualify as normal precautions to maintain privacy. See Vega, 221 F.3d at 796 (indicating that relevant factors when evaluating “normal precautions to maintain privacy” include whether the searched area is fenced or railed, whether the searched area was locked, and whether strangers were invited into the searched area). Because application of the relevant Cardoza-Hinojosa factors indicates that Runyan had a protectable privacy interest in the materials that were the subject of the pre-warrant police examinations, those examinations are a series of “searches” within the meaning of the Fourth Amendment. However, this court has recognized that “a police view subsequent to a search conducted by private citizens does not constitute a ‘search’ within the meaning of the Fourth Amendment so long as the view is confined to the scope and product of the initial search.” United States v. Bomengo, 580 F.2d 173, 175 (5th Cir.1978); see also United States v. Paige, 136 F.3d 1012, 1019 (5th Cir.1998). The government contends that the pre-warrant examinations at issue in the instant case were not “searches” because this “private search” doctrine applies. The Supreme Court articulated the private search doctrine in Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), and United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). In Walter, packages containing pornographic filmstrips were delivered to the wrong company. Employees of the company that erroneously received the shipment opened the packages and found film canisters. The content of each film was described on the exterior of its" }, { "docid": "23134162", "title": "", "text": "of the lock on a footlocker containing items that are intended to remain private. The password is an electronic key. While the medium for ensuring privacy is different, the result — a clear signal that privacy is expected against all those who lack the key (or the password)- — is the same. There is simply no reason why a reasonable officer who understood that a locked footlocker signals a discrete expectation of privacy would believe that a password-protected computer file does not. The physical differences between the two repositories have no legal significance. This conclusion is not undercut by the majority’s observation that the law of computers is “fast evolving.” Ante at 403. In fact, the case law supports my point that the differences between computer files and physical repositories of personal information and effects are legally insignificant. Courts have not hesitated to apply established Fourth Amendment principles to computers and computer files, often drawing analogies between computers and physical storage units such as file cabinets and closed containers. See, e.g., In re Grand Jury Subpoena Duces Tecum, 846 F.Supp. 11, 12-18 (S.D.N.Y.1994) (analogizing computer hard drives and floppy disks that contained electronic documents to file cabinets that contained paper documents in deciding that subpoena for computer-accessible data was unreasonably broad); United States v. Chan, 830 F.Supp. 531, 534-35 (N.D.Cal.1993) (holding that “[t]he expectation of privacy in an electronic repository for personal data is ... analogous to that in a personal address book or other repository for such information .... [A]n individual has the same expectation of privacy in a pager, computer or other electronic data storage and retrieval device as a closed container ....”) (internal quotation and citation omitted); United States v. David, 756 F.Supp. 1385, 1390 (D.Nev.1991) (recognizing that a computer memo book “is in distinguishable from any other closed container, and is entitled to the same Fourth Amendment protection”). Our circuit has also drawn analogies between computer files and physical repositories of personal information and effects, such as lockers. See United States v. Simons, 206 F.3d 392, 398 (4th Cir.2000) (citing American Postal Workers Union v. United" }, { "docid": "5877350", "title": "", "text": "showing that the pager was not legitimately obtained. Chan presumably maintained a subjective expectation that a borrowed item kept on his person would be free from governmental invasion. Furthermore, it is “reasonable” that one would have expectations of privacy in an item carried on one’s person. Accordingly, Chan has standing to bring this motion as long as the expectation of privacy in a pager is one which society deems “reasonable.” 3. Expectation of Privacy in a Pager A warrant may be required to search the contents of a container when its owner’s expectation of privacy relates to the contents of that container, rather than to the container itself. United States v. Chadwick, 433 U.S. 1, 10-11, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538 (1977). Similarly, an officer’s authority to possess a package is distinct from his authority to examine its contents. Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) (Court found reasonable expectation of privacy in contents of film carton). See also United States v. David, 756 F.Supp. 1385 (D.Nev.1991) (defendant’s computer memo book entitled to same Fourth Amendment protection as any other closed container). The expectation of privacy in a pager, while analogous to other closed containers, has apparently never been addressed by the Ninth Circuit. In the only federal appellate case dealing with this subject, the Sixth Circuit found that the transmitter of a number to an electronic pager had no expectation of privacy when the number was subsequently seized from the pager. United States v. Meriwether, 917 F.2d 955 (6th Cir.1990). The context in which the issue arose in Meriwether, however, differs significantly from the case at hand. There, a government agent seized a pager from a suspected drug dealer pursuant to a warrant which authorized the agent to search for and seize “telephone numbers of customers, suppliers, and couriers.” The pager was seized in the “on” position, and the agents subsequently recorded the next forty telephone numbers received by the pager. The agents randomly chose the defendant’s number from among the forty, and arranged a drug deal which led to" }, { "docid": "23600641", "title": "", "text": "case when they examined disks that the private searchers did not examine. Both these disks and any evidence obtained as a result of the information found on these disks are potentially subject to suppression. See Part 11(2), infra. Runyan further contends that the police exceeded the scope of the private search because they examined more files on each of the disks than did the private searchers. Initially, it is important to note that it is not clear from the record that this is true. Agent Nuckles testified that, while he did look at each of the storage devices turned over by Judith pri- or to obtaining a warrant, he only looked at two or three images on each of these disks. It is unnecessary for us to address this factual dispute, however, as we find that it would not have been constitutionally problematic for the police to have examined more files than did the private searchers. We agree with the Eleventh Circuit’s position in Simpson that the police do not exceed the scope of a prior private search when they examine the same materials that were examined by the private searchers, but they examine these materials more thoroughly than did the private parties. See Simpson, 904 F.2d at 610. In the context of a closed container search, this means that the police do not exceed the private search when they examine more items within a closed container than did the private searchers. Though the Supreme Court has long recognized that individuals have an expectation of privacy in closed containers, see, e.g., Smith v. Ohio, 494 U.S. 541, 542, 110 S.Ct. 1288, 108 L.Ed.2d 464 (1990) (per curiam); United States v. Ross, 456 U.S. 798, 822, 102 S.Ct. 2157, 72 L.Ed.2d 572, (1982), an individual’s expectation of privacy in the contents of a container has already been compromised if that container was opened and examined by private searchers, see, e.g., Jacobsen, 466 U.S. at 119, 104 S.Ct. 1652. Thus, the police do not engage in a new “search” for Fourth Amendment purposes each time they examine a particular item found within" }, { "docid": "22272098", "title": "", "text": "for new trial. For the following reasons, we AFFIRM Runyan’s convictions for receipt and possession of child pornography and for sexual exploitation of a child, but REVERSE his conviction for distribution of child pornography. We also VACATE Runyan’s sentence and REMAND to the district court for entry of judgment and resentencing consistent with this opinion. I. Factual and Procedural Background The facts of this case are described in detail in this court’s December 10, 2001 decision. Accordingly, we only briefly reiterate the underlying facts of the case. We address specific facts pertinent to each of Runyan’s remaining claims in greater detail within our discussion of each claim below. In brief, Robert Beam Runyan (“Run-yan”) and his wife Judith Runyan (“Judith”) separated in January of 1999. In June of 1999, Judith (accompanied at different times by her daughter and various friends) made several trips to Runyan’s ranch to retrieve items of her personal property while Runyan was out-of-town. At the ranch, Judith and one of -her companions found two duffel bags in the barn containing items of pornography, including Polaroid photographs of two individuals, one of whom appeared to be a very young teenager. Judith removed these items from the ranch. Judith and her companions also removed from the ranch a desktop computer and a collection of floppy disks, compact discs (“CDs”), and ZIP disks (collectively, “the disks”) that were lying on the floor surrounding the computer. One of Judith’s companions, Brandie Epp, reassembled the computer at Judith’s residence and examined approximately 20 of the CDs and floppy disks taken from the ranch. Epp discovered that some of these CDs and floppy disks contained images of child pornography. Epp contacted the sheriffs department and turned these materials over to a deputy. Over the next few weeks, Judith turned over various additional items found at the Run-yan ranch to a number of different law enforcement agencies. These items included the desktop computer, additional disks containing child pornography, and the duffel bags found in the barn. Texas Ranger Bobby Grubbs (“Ranger Grubbs”) used his computer to view some of the disks delivered by" }, { "docid": "23134163", "title": "", "text": "Subpoena Duces Tecum, 846 F.Supp. 11, 12-18 (S.D.N.Y.1994) (analogizing computer hard drives and floppy disks that contained electronic documents to file cabinets that contained paper documents in deciding that subpoena for computer-accessible data was unreasonably broad); United States v. Chan, 830 F.Supp. 531, 534-35 (N.D.Cal.1993) (holding that “[t]he expectation of privacy in an electronic repository for personal data is ... analogous to that in a personal address book or other repository for such information .... [A]n individual has the same expectation of privacy in a pager, computer or other electronic data storage and retrieval device as a closed container ....”) (internal quotation and citation omitted); United States v. David, 756 F.Supp. 1385, 1390 (D.Nev.1991) (recognizing that a computer memo book “is in distinguishable from any other closed container, and is entitled to the same Fourth Amendment protection”). Our circuit has also drawn analogies between computer files and physical repositories of personal information and effects, such as lockers. See United States v. Simons, 206 F.3d 392, 398 (4th Cir.2000) (citing American Postal Workers Union v. United States Postal Serv., 871 F.2d 556, 560 (6th Cir.1989), to compare employee lockers subject to random inspection under employer policy with computer files subject to “appropriate” inspection under employer policy allowing monitoring of employee Internet use). Thus, neither case law nor common sense suggests any reason for thinking that the principles in Block do not dictate the result in this case. While the majority bases its grant of qualified immunity primarily on the factual differences between this case and Block, it also suggests that there is no clearly established law governing the search of Tru-lock’s protected files because at least one district court opinion from another circuit has upheld the search of a shared computer based on third-party consent. Ante at 403 (citing United States v. Smith, 27 F.Supp.2d 1111 (C.D.Ill.1998)). Smith, however, is consistent with Block, and its reasoning actually supports the conclusion that Conrad’s consent to search the computer did not encompass Trulock’s password-protected files. In Smith the court upheld a search of the defendant’s computer files based on third-party consent, but the" }, { "docid": "23600654", "title": "", "text": "whether Payne was shown Polaroid photographs or computer printouts of Misty. . However, Runyan maintains that he never uploaded or downloaded any images containing child pornography from the Internet at these times. . Two counts were dismissed prior to trial. . The government concedes that Runyan was incorrectly sentenced when the trial court did not group the counts of his conviction. . We use the term \"police” generically to refer to all of the state and federal law enforcement officials involved in this case. . We address only the first of these claims in this opinion.- . The Katz inquiry has traditionally been conceptualized as a two-part test, instructing courts to determine (1) whether the individual challenging the investigative activity had a subjective expectation of privacy and (2) whether society was prepared to recognize that expectation of privacy as objectively reasonable. However, many modern courts, including the Supreme Court in its most recent discussion of Katz, have collapsed this two-part test into a single inquiry. See Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 2042-43, 150 L.Ed.2d 94 (2001). . Justices Stevens and Stewart found that the officers had violated the Fourth Amendment because they exceeded the scope of the private search. Justices White and Brennan found that a Fourth Amendment violation had occurred regardless of whether the official search exceeded the scope of the private search. Justice Marshall completed the five justice majority in favor of suppression by concurring in the judgment while joining neither opinion. The four dissenters found that there was no legitimate expectation of privacy remaining in a package released to a common carrier when the addressee and the intended recipient were both using fictitious names and a private search had \"clearly revealed the nature of the[] contents” of the package. Walter, 447 U.S. at 663, 100 S.Ct. 2395 (Blackmun, J. dissenting). . It is unclear from the record whether the selected images from the disks that were introduced at trial were viewed by both the private searchers and the police searchers or whether these images were exclusively the product of the police's more" }, { "docid": "460635", "title": "", "text": "it would remain free from governmental intrusion, whether he took normal precautions to maintain privacy and whether he was legitimately on the premises. In Cardozar-Hinojosa, we recognized that fourth amendment protections are “presumptively applicable” to premises owned or used by an individual. Izquierdo’s possessory interest in the house therefore creates a strong presumption of his subjective and reasonable expectation of privacy therein. Clearly Izquierdo, as lessee, had the right to exclude others and was legitimately on the premises. The condition of the house itself exhibited measures in excess of “normal precautions to maintain privacy” and further manifested Izquier-do’s subjective expectation of privacy. The entire curtilage of the house was enclosed within a fence. The front porch had a thigh-high iron railing preventing access except through a gate. All windows were covered by iron bars. The government submits that several actions by Izquierdo and his co-defendants evidence a failure by Izquierdo to take “normal precautions to maintain privacy” in the house. No suggestion is persuasive. Stripped to essentials, the government first suggests that when Vega ran out of the house, Izquierdo’s constitutional rights followed. The government contends that the door left open by Vega “expose[d] [the interior of the house] to public view” and that therefore the house “is not a subject of Fourth Amendment protection.” We reject as untenable the proposition that because one exiting the house left a side door open that Izquierdo’s expectation of privacy was in some way diminished. Next, the government contends that a “normal precaution” required of one who desires to maintain his privacy is to attempt to prevent raiding government agents from entering the premises. The government faults Izquierdo for not questioning the officers’ reason for knocking on the door and for not offering evidence of his interest in the dwelling. To our knowledge, no court has required such an affirmative assertion of fourth amendment rights in order to preserve them, and we decidedly decline to do so now. In addition, the government contends that Izquierdo essentially waived his fourth amendment protection in the home by denying that he resided there. The government has" }, { "docid": "22272099", "title": "", "text": "of pornography, including Polaroid photographs of two individuals, one of whom appeared to be a very young teenager. Judith removed these items from the ranch. Judith and her companions also removed from the ranch a desktop computer and a collection of floppy disks, compact discs (“CDs”), and ZIP disks (collectively, “the disks”) that were lying on the floor surrounding the computer. One of Judith’s companions, Brandie Epp, reassembled the computer at Judith’s residence and examined approximately 20 of the CDs and floppy disks taken from the ranch. Epp discovered that some of these CDs and floppy disks contained images of child pornography. Epp contacted the sheriffs department and turned these materials over to a deputy. Over the next few weeks, Judith turned over various additional items found at the Run-yan ranch to a number of different law enforcement agencies. These items included the desktop computer, additional disks containing child pornography, and the duffel bags found in the barn. Texas Ranger Bobby Grubbs (“Ranger Grubbs”) used his computer to view some of the disks delivered by Judith and observed images of child pornography. He printed out several of these images on a color printer and showed them to members of the Coleman County District Attorney’s staff. An investigator in the District Attorney’s office, Darla Tibbetts, tentatively identified the girl photographed in one of the images. An intern working for the District Attorney’s office, Melissa Payne, was brought to the sheriffs office to assist with the identification. She positively identified the girl in the pictures as Misty Metcalf (“Misty”), a former high school classmate. On June 28, 1999, upon learning that he was a potential suspect, Runyan met with Ranger Grubbs. At this meeting, after Runyan had been given Miranda warnings, he stated that he found a bag of pornography at a rest stop. Runyan admitted that he viewed the materials in the bag and that, out of curiosity, he used his computer to view child pornography available on the Internet. On July 7, 1999, Customs Service Special Agent Rick Nuckles (“Agent Nuckles”) joined the investigation. Agent Nuckles examined several images from" }, { "docid": "23600620", "title": "", "text": "court has elaborated on the factors relevant to a Katz inquiry. In United States v. Cardoza-Hinojosa, 140 F.3d 610, 615 (5th Cir.1998), we indicated that whether an interest is protected by the Fourth Amendment depends on five factors: (1) “whether the defendant has a [property or] possessory interest in the thing seized or the place searched,” (2) “whether he has the right to exclude others from that place,” (3) “whether he has exhibited a subjective expectation of privacy that it would remain free from governmental intrusion,” (4) “whether he took normal precautions to maintain privacy,” and (5) “whether he was legitimately on the premises.” Id. (quoting United States v. Ibarra, 948 F.2d 903, 906 (5th Cir.1991)). We recently indicated in Kee v. City of Rowlett, Texas, 247 F.3d 206 (5th Cir.2001), that the Cardozar-Hinojosa factors, “while appropriate to determine the expectation of privacy in the context of searches of physical real property,” cannot necessarily be applied to other types of searches without modification. Id. at 212-13. In Kee — which involved a search conducted via an electronic listening device— we determined that it was appropriate to analyze only the two Cardoza-Hinojosa factors most applicable to electronic surveillance (i.e., whether the defendant had a subjective expectation of privacy in his conversations and whether he took normal precautions to maintain this privacy). See id. at 213. Similarly, in the instant case— which involves a search of personal property rather than real property — we find that the first, third, and fourth Cardozcu-Hino-josa factors are most directly applicable and should be dispositive. Thus, we analyze whether Runyan had a possessory interest in the personal property searched, whether he exhibited a subjective expectation of privacy in that personal property, and whether he took normal precautions to maintain that expectation of privacy. The parties do not dispute that Runyan had a possessory interest in the materials searched. While the record contains some disputed testimony regarding whether Judith or Runyan was the owner of the desktop computer, neither party contests that Runyan was the sole owner of both the storage containers retrieved from the barn and" }, { "docid": "23600606", "title": "", "text": "Factual and Procedural Background Defendant Robert Runyan lived on a ranch outside Santa Anna, Texas, where he owned and operated Gammon Technologies, a computer repair and service company, from 1990 to 1998. During this time period, Runyan employed a number of local junior high and high school students to perform odd jobs at the ranch and to perform administrative tasks for Gammon Technologies. Runyan was married to Judith Runyan (“Judith”), who has a daughter, Rickie, from a previous relationship. In January 1999, Judith left Runyan and moved in with a boyfriend in Brownwood. Runyan subsequently filed for divorce. In June 1999, Judith made several trips to the ranch to retrieve items that she contends were her personal property. She was accompanied at different times by Rickie and other friends. Judith was aware that Runyan was not present at the ranch at these times. She was not aware that after their separation, Runyan had secured the gated entrance to the ranch with a chain and lock. Runyan had also changed the locks on the house and the barn and installed surveillance cameras on the property. On June 17, Judith and Rickie climbed over the fence surrounding the ranch, looked through a window of the ranch house, and saw that Judith’s belongings were inside. On June 18, Judith, Rickie, and a friend, Casey Giles, returned to the ranch house (again by climbing the fence surrounding the ranch) and entered the house through a breakfast-room window. After searching through the house for Judith’s belongings, they entered the barn next to the house, also by climbing through a window. In the barn, Giles opened a black duffel bag and discovered that it contained pornography, compact disks (“CDs”) and computer disks, a Polaroid camera with film, a vibrator, and Polaroid pictures of two individuals, one of whom appeared to be a very young teenager. Under the black bag were two waterproof ammunition boxes containing more pornography. Judith took the black bag back to her Brownwood residence. Later that day, Judith and six of her Mends reentered Runyan’s ranch, this time by cutting the chain on" }, { "docid": "23600622", "title": "", "text": "the disks found near the desktop computer in the office, which were the subjects of the pre-warrant search at issue. In addition, Runyan clearly exhibited a subjective expectation of privacy in both sets of materials in question. Runyan’s placement of the non-electronic pornography in the duffel bag and the waterproof ammunition storage containers found in the barn evidences his subjective expectation of privacy in those materials. See United States v. Villarreal, 963 F.2d 770, 773 (5th Cir.1992) (“Individuals can manifest legitimate expectations of privacy by placing items in closed, opaque containers that conceal their contents from plain view.”). The government concedes that the disks found in the office near the computer are “containers” and that the standards governing closed container searches are applicable. Because neither party contests this point, we assume without deciding that computer disks are “containers.” Accordingly, Runyan appears to have manifested his subjective expectation of privacy in the electronic images in question by storing the images in these “containers.” Cf. United States v. Barth, 26 F.Supp.2d 929, 936-37 (W.D. Tex.1998) (finding that the owner of a computer manifested a reasonable expectation of privacy in the contents of data files by storing them on a computer hard drive); United States v. Chan, 830 F.Supp. 531, 534 (N.D.Cal.1993) (analogizing data in a pager to contents of a closed container). Finally, the record indicates that Run-yan took normal precautions to maintain his privacy with respect to these materials. Runyan’s efforts to secure the barn against intrusion by locking the barn door, putting a chain on the gate to the ranch, and installing video surveillance equipment at the ranch certainly qualify as normal precautions to maintain privacy. See Vega, 221 F.3d at 796 (indicating that relevant factors when evaluating “normal precautions to maintain privacy” include whether the searched area is fenced or railed, whether the searched area was locked, and whether strangers were invited into the searched area). Because application of the relevant Cardoza-Hinojosa factors indicates that Runyan had a protectable privacy interest in the materials that were the subject of the pre-warrant police examinations, those examinations are a series of" }, { "docid": "18341164", "title": "", "text": "the luggage, [but] not over the trunk where the luggage was located.”); see also United States v. Buchner, 7 F.3d 1149, 1154 (5th Cir.1993) (“The owner of a suitcase located in another’s car may have a legitimate expectation of privacy with respect to the contents of his suitcase.”). Similarly, in United States v. Edwards, 242 F.3d 928 (10th Cir.2001), we reiterated that while such defendants lack standing to challenge a search of these vehicles, they do have standing to challenge a search of their personal belongings within those vehicles. The Edwards court held that in deciding whether a search infringed upon protected constitutional rights, we must examine two primary factors: (1) “whether the defendant manifested a subjective expectation of privacy in the area searched,” and (2) “whether society would recognize that expectation as objectively reasonable.” Id. at 936 (internal quotation marks omitted). Since the bags at issue in Edwards were closed, stored in the trunk, and contained personal items such as clothing and toiletries, we found that the defendants may have met the two-prong test above. Here, the defendants’ subjective expectation of privacy is not as well-defined. The bags were not locked, but were in duffle bags in the open compartment of a van. Mr. Worthon maintained that all the contents of the vehicle, which he was unauthorized to drive, were his. There is no doubt that Mr. Romero lacks standing to challenge the search of the duffle bags. Before the district court, Mr. Romero argued he “clearly had an expectation of privacy in [Mr.] Worthon’s vehicle as the Government is alleging [Mr.] Romero had personal items that were found in the back of [the] van.” Rec. vol. I, doc. 44, at 7 (emphasis added). However, throughout his district court pleadings, Mr. Romero refers to the contents of the van as “Worthon’s bags,” “Worthon’s duffle bag” and “some items that the Government is alleging belonged to Romero.” Id. at 7, 3, 2. Mr. Romero unquestionably maintained no subjective expectation of privacy over the bags in the van. Mr. Worthon also lacks standing to challenge the search because unlike in Edwards," }, { "docid": "23600608", "title": "", "text": "the gate with bolt cutters. For the remainder of the day on June 18 and throughout the day on June 19 they removed items identified by Judith as belonging to her. During their search of the ranch house they found a desktop computer that Judith claimed was hers, surrounded by 3.5 inch floppy disks, CDs, and ZIP disks. Judith asked one of her Mends, Brandie Epp (“Brandie”), to dismantle the desktop computer and to take it to Judith’s Brownwood residence and reassemble it there. In addition to the computer, Brandie took the disks that were lying on the floor surrounding the computer. After reassembling the computer, Brandie viewed approximately twenty of the CDs and floppy disks that had been removed from the ranch and found that they contained images of child pornography. Brandie did not view any of the images on the ZIP disks because the necessary hardware was not connected. After viewing the images, Brandie contacted the sheriffs department. A deputy subsequently arrived, and Brandie turned over twenty-two CDs, ten ZIP disks, and eleven floppy disks to the deputy. Over the next few weeks, Judith turned over various items found at the Runyan ranch to different law enforcement agencies. She provided the sheriffs department with additional CDs of child pornography and she gave the Santa Anna Chief of Police a 3.5 inch diskette containing child pornography. Judith also called Texas Ranger Bobby Grubbs (“Ranger Grubbs”) and turned over to him the black duffel bag and pornographic materials removed from the ammunition boxes in Run-yan’s barn. At subsequent meetings with Ranger Grubbs on June 28 and July 7, Judith provided him with two additional disks and with Polaroid photographs that she had removed from the ranch. At some point during this time period, Judith also turned over the desktop computer to Ranger Grubbs. Ranger Grubbs viewed some of the disks delivered by Judith on his computer. He observed images of child pornography. On June 24, 1999, the Coleman County District Attorney went to the Sheriffs office and viewed several images as well. At this time, several of the images were" }, { "docid": "23600619", "title": "", "text": "466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (quoting Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) (Blackmun, J., dissenting)). Runyan makes no attempt to demonstrate that Judith and her companions were acting under the color of government authority when they searched the ranch and the computer storage materials. Runyan’s contention is that the police’s subsequent review of the materials removed from the ranch was a “search” under the Fourth Amendment. 1. Was there a “search?” In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Supreme Court established that a “search” occurs for Fourth Amendment purposes when the government violates a subjective expectation of privacy that society considers objectively reasonable. See id. at 361, 88 S.Ct. 507 (Harlan, J., concurring); see also California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (adopting the test proposed in Harlan’s Katz concurrence); Ky'llo, 121 S.Ct. at 2042-43 (recognizing the continuing vitality of the Katz inquiry). This court has elaborated on the factors relevant to a Katz inquiry. In United States v. Cardoza-Hinojosa, 140 F.3d 610, 615 (5th Cir.1998), we indicated that whether an interest is protected by the Fourth Amendment depends on five factors: (1) “whether the defendant has a [property or] possessory interest in the thing seized or the place searched,” (2) “whether he has the right to exclude others from that place,” (3) “whether he has exhibited a subjective expectation of privacy that it would remain free from governmental intrusion,” (4) “whether he took normal precautions to maintain privacy,” and (5) “whether he was legitimately on the premises.” Id. (quoting United States v. Ibarra, 948 F.2d 903, 906 (5th Cir.1991)). We recently indicated in Kee v. City of Rowlett, Texas, 247 F.3d 206 (5th Cir.2001), that the Cardozar-Hinojosa factors, “while appropriate to determine the expectation of privacy in the context of searches of physical real property,” cannot necessarily be applied to other types of searches without modification. Id. at 212-13. In Kee — which involved a search conducted via" }, { "docid": "23600609", "title": "", "text": "floppy disks to the deputy. Over the next few weeks, Judith turned over various items found at the Runyan ranch to different law enforcement agencies. She provided the sheriffs department with additional CDs of child pornography and she gave the Santa Anna Chief of Police a 3.5 inch diskette containing child pornography. Judith also called Texas Ranger Bobby Grubbs (“Ranger Grubbs”) and turned over to him the black duffel bag and pornographic materials removed from the ammunition boxes in Run-yan’s barn. At subsequent meetings with Ranger Grubbs on June 28 and July 7, Judith provided him with two additional disks and with Polaroid photographs that she had removed from the ranch. At some point during this time period, Judith also turned over the desktop computer to Ranger Grubbs. Ranger Grubbs viewed some of the disks delivered by Judith on his computer. He observed images of child pornography. On June 24, 1999, the Coleman County District Attorney went to the Sheriffs office and viewed several images as well. At this time, several of the images were printed out on a color printer and shown to members of the District Attorney’s staff. An investigator in the District Attorney’s office, Darla Tibbetts, tentatively identified the subject photographed in one of the images. An intern working for the District Attorney’s office, Melissa Payne, was then brought to the sheriffs office to assist with the identification. She positively identified the girl in the pictures as Misty Metcalf (“Misty”), a former high school classmate. On June 28, 1999, upon learning that he was a potential suspect, Runyan went to meet with Ranger Grubbs. At this meeting, after he had been given Miranda warnings, Runyan stated that he found a bag of pornography at a rest stop. Run-yan stated further that the bag contained CDs and other items, including a vibrator. He admitted that he viewed the materials in the bag and that, out of curiosity, he used his computer to view child pornography available on the Internet. On July 7, 1999, Customs Service Special Agent Rick Nuckles (“Agent Nuckles”) became involved in the investigation. While at" } ]

[ { "docid": "22929569", "title": "", "text": "implies that these omissions were intentional. The district court, at the suppression hearing, allowed Martin to present evidence regarding omissions from the affidavit. Having examined the evidence at that hear ing, we believe the district court was correct in finding that the omissions from the affidavit did not vitiate the magistrate’s finding of probable cause. In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court for the first time recognized the viability of subfacial challenges to affidavits presented in support of a warrant and defined the circumstances in which such an attack could prevail. The court summarized its holding as follows: [W]e hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is estab-j lished by the defendant by a prepondere anee of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. Id. 98 S.Ct. at 2676-77. While Franks dealt only with misstatements, Judge Coleman in United States v. Park, 531 F.2d 754, 758-59 (5th Cir. 1976), recognized that allegations of material omissions were to be treated essentially similarly to claims of material misstatements. Accord United States v. House, 604 F.2d 1135, 1141 & n. 9 (8th Cir. 1979); United States v. Collins, 549 F.2d 557, 561 (8th Cir. 1977), cert. denied, 431 U.S. 940, 97 S.Ct. 2656, 53 L.Ed.2d 259 (1977); United States v. Lewis, 425 F.Supp. 1166, 1173 (D.Conn.1977); Morris v. Superior Court, 57 Cal.App.3d 521, 129 Cal.Rptr. 238 (1976). Since the district court allowed" } ]

[ { "docid": "4009681", "title": "", "text": "the arrest. Also, this evidence as included in the affidavits provided probable cause for the issuance of the search warrant. Thus, the district court properly admitted the evidence. Confession Because the arrest was proper and the defendant’s Miranda rights were properly given, the appellant’s allegation that the confession was inadmissible as “fruit of the poisonous tree” under Wong Sun v. United States, 371 U.S. 471, 477-78, 83 S.Ct. 407, 411-412, 9 L.Ed.2d 441 (1963), must fail. Post-Search Hearing Furthermore, the district court did not err in failing to hold a post-search hearing to examine the veracity of the affidavits submitted in support of the request for a search warrant. In order to justify such a hearing, the challenger must make more than a merely conclusional statement attacking the sufficiency of the affidavits. In Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-2685, 57 L.Ed.2d 667 (1978), the court stated: There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affi-ant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. Such an allegation has not been made in the present case. Defendant" }, { "docid": "22168746", "title": "", "text": "to hold a Franks hearing nor did it err in concluding that the affidavit, when considered in the edited form urged by Defendant, provided sufficient probable cause to believe that evidence of a crime would be found in Defendant’s Gainesville home. 1. Franks Hearing Affidavits supporting arrest warrants are presumptively valid. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In order to be entitled to an evidentiary hearing on a motion to suppress based on alleged misrepresentations or omissions in a search warrant affidavit, a defendant must make a substantial prehminary showing that the affiant made false statements, either intentionally or with reckless disregard for the truth, pointing specifically to the portions of the affidavit claimed to be false, and that the false statements were necessary to the finding of probable cause. Id. When assessing whether the alleged false statements and omissions were material, the trial court is to disregard those portions of the affidavit which the defendant has shown are arguably false or misleading. Id. at 171-72, 98 S.Ct. 2674. “[E]ven intentional or reckless omissions will invalidate a warrant only if inclusion of the omitted facts would have prevented a finding of probable cause.” Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir.1997). Looking only at the remaining portions of the affidavit, the court will then determine whether including the omitted facts would have prevented a finding of probable cause. Id. The defendant bears the burden of showing that, “absent those misrepresentations or omissions, probable cause would have been lacking.” United States v. Novaton, 271 F.3d 968, 987 (11th Cir.2001). “ ‘[I]f, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.’ ” Id. (quoting Franks, 438 U.S. at 171-72, 98 S.Ct. 2674); United States v. Cross, 928 F.2d 1030, 1040 (11th Cir.1991). Defendant concedes that, in considering his motion to suppress, the magistrate judge “remove[d] all the tainted information, ... transplanted] into the text the" }, { "docid": "18836411", "title": "", "text": "officers to the uninhabited house, or that he participated in the recorded controlled buy of marijuana from Mr. Knapp. Mr. Knapp therefore assumes the statements contained in Agent Olachea’s affidavit were intentionally or recklessly false, and asserts that without these statements no probable cause existed and the search warrant should not have been issued. According to the Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978), when a defendant shows that an affiant made a false statement knowingly and intentionally, or with reckless disregard for the truth, the search warrant must be voided if the affidavit’s remaining content is insufficient to establish probable cause. The burden was on Mr. Knapp to demonstrate falsity or reckless disregard for the truth in Agent Olachea’s affidavit. United States v. Sullivan, 919 F.2d 1403, 1424 (10th Cir.1990). In reviewing the motion to suppress, the district court properly focused on the credibility of the affiant, Agent Olachea. See United States v. Corral-Corral, 899 F.2d 927, 934 (10th Cir.1990). Mr. Knapp argues the trial court erred by accepting the credibility of Agent Olachea over the recanted testimony of the two informants. We give deference to the trial court in determining the credibility of witnesses. We note that Mr. Waller’s denial of his presence at the recorded controlled buy gives some indication as to his credibility. Agent Olachea’s affidavit and subsequent testimony are supported by the record, and it certainly was not clearly erroneous for the district court to accept his testimony over that of the recanting informants. Moreover, Mr. Knapp could not show that any potential inaccuracies in the affidavit were deliberate falsities on the part of Agent Olachea. “It is not enough to show that the informant lied to an unsuspecting affiant, or that an affiant’s negligence or innocent mistake resulted in false statements in the affidavit.” United States v. Owens, 882 F.2d 1493, 1499 (10th Cir.1989). Therefore, as long as the affidavit reflected what Agent Olachea believed to be true, the warrant was properly issued. Mr. Knapp next contends the affidavit supporting the search warrant" }, { "docid": "7988284", "title": "", "text": "is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... con-cludpng]” that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (citation omitted). On its face, the affidavit provided a sufficient basis to find the requisite probable cause. But, as noted, Wake claims that the evidence seized from his office should be suppressed, because Agent Hildreth furnished false statements in that affidavit. In the earlier referenced Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court considered the defendant’s burden in challenging the truthfulness of factual statements made in an affidavit supporting a warrant. In outlining the circumstances under which the defendant would be entitled to a hearing, the Court held: There must be allegations of deliberate falsehood or of reckless disregard for the truth.... Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant.... 438 U.S. at 171, 98 S.Ct. at 2684. Therefore, the person whose deliberate falsehood or reckless disregard for the truth is at issue is Hildreth, the affiant, and not Thompson. Under Franks, if Wake had succeeded in making such a showing to the district court with respect to Hildreth, its next task would have been to consider whether “if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause_” 438 U.S. at 171-72, 98 S.Ct. at 2684. Franks decided that the Fourth Amendment does not require suppression of evidence whenever the warrant authorizing the seizure is supported by any inaccurate or" }, { "docid": "3960372", "title": "", "text": "and in the proper circumstances, may be an effective tool, both to fight criminal activity, and to protect individual Fourth Amendment rights.” United States v. Garcia 882 F.2d 699 (2d Cir.1989). Garcia requires that an affidavit supporting an anticipatory warrant show that the agent believes there will be a delivery, why he believes it, and how reliable are his sources of information. Garcia at 703. The Boylan affidavit showed all three. Even if the warrant were to be considered anticipatory, the affidavit was sufficient to establish probable cause. c. Validity of Warrant Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) determines when a challenge to the validity of a search warrant affidavit merits a hearing. The challenger’s allegations may not be merely conclusory; they must be supported by “[a]ffidavits or sworn or otherwise reliable statements of witnesses.” Franks, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978). “Allegations of negligence or innocent mistake are insufficient” to impeach statements in an affidavit. Id. Allegations must be of “deliberate falsehood or of reckless disregard for the truth” and “accompanied by an offer of proof.” Id. If the affidavit would support a finding of probable cause without the contested statements, the challenge fails without need for further inquiry. Id. at 171-72, 98 S.Ct. at 2684-85; see also United States v. Campino, 890 F.2d 588 (2d Cir.1989). The same standard applies to deliberate or reckless omissions in an affidavit. United States v. Ferguson, 758 F.2d 843, 848 (2d Cir.1985), cert. denied 474 U.S. 841, 106 S.Ct. 125, 88 L.Ed.2d 102 (1985). Judicial precedent has established this standard of deliberate falsehood and reckless disregard to support a Franks challenge, but research has disclosed no case defining “reckless disregard” in this setting. The words themselves, though, suggest that “reckless disregard for the truth” means failure to heed or to pay attention to facts as Boylan knew them to be. If Boy-lan made statements which failed to take account of the facts as he knew them, or which he seriously doubted were true, that would show reckless disregard for" }, { "docid": "22295691", "title": "", "text": "movant establishes by a preponderance of the evidence that: (1) a factual statement made in an affidavit supporting a warrant is false; (2) the affiant made the false statement either knowingly and intentionally or with reckless disregard for the truth; and (3) without the false statement, the remainder of the affidavit is insufficient to establish probable cause. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978). Although McNeese has not alleged that statements in the affidavit were false, he has insisted that, had three material omissions of fact been included in the affidavit, probable cause would not have been found. These three critical defects in the agent’s sworn statement supporting the warrant rendered the affidavit insufficient to support a finding of probable cause, assert appellants. The Seventh Circuit tests an affidavit’s allegedly omitted statements under the same standard that the Franks Court has established for false statements. United States v. Williams, 737 F.2d 594, 604 (7th Cir.1984), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985). The omission of a fact from an affidavit is material only if it amounts to deliberate falsehood or reckless disregard for the truth. United States v. Kimberlin, 805 F.2d 210, 252 (7th Cir.1986), cert. denied, 483 U.S. 1023, 107 S.Ct. 3270, 97 L.Ed.2d 768 (1987). Mere negligence by the affi-ant does not constitute reckless disregard for the truth. United States v. A Residence Located at 218 Third Street, 805 F.2d 256, 258 (7th Cir.1986). Nor is an omission material if, in context, the information was of such minimal significance that its omission could not reasonably have affected the magistrate’s judgment in finding probable cause to search. Kimberlin, 805 F.2d at 251. This court has made clear that a defendant seeking a Franks hearing bears a substantial burden to demonstrate probable falsity. United States v. Hornick, 815 F.2d 1156, 1158 (7th Cir.1987). He must offer direct evidence of the affiant’s state of mind or inferential evidence that the affiant had obvious reasons for omitting facts in order to prove deliberate falsehood or reckless disregard. Residence Located" }, { "docid": "2714442", "title": "", "text": "former secretary, whose credibility is unassailed. We conclude that the affidavit is sufficient on its face to support the finding of probable cause made by the magistrate. C. Franks v. Delaware Challenge Haimowitz argues that the affidavit is insufficient because the omission of facts concerning Abbott’s prior felony convictions and bad acts may have led the magistrate to a misconception of Abbott’s credibility. In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the court held that in order to challenge a facially valid affidavit, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false;- and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. Id. at 171, 172, 98 S.Ct. at 2684 (footnote omitted). At the outset, we note that Haimowitz’s motion to suppress contains nothing more than conclusory allegations, unaccompanied by any offer of proof, that by his omission the affiant intended to mislead the magistrate with respect to Abbott’s credibility. Appellant claimed that “the affiant signing the Affidavit for Search Warrant intentionally misled the issuing magistrate as to the reliability of the informant, Peter R. Abbott.” He asserted as “inescapable” the conclusion that such must have been the intent. He argued there was not “one single averment on" }, { "docid": "15501859", "title": "", "text": "to adduce further evidence regarding the affi-ant’s misstatements or omissions regarding the necessity showing for the wiretaps. In Franks v. Delaware, the Supreme Court held that a defendant is entitled to an evidentiary hearing upon “a substantial preliminary showing that a false statement knowingly or intentionally, or with reckless disregard for the truth, is included by an affiant” in a search warrant affidavit. 438 U.S. at 155-56, 98 S.Ct. 2674. The Supreme Court put it this way: There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnésses should be furnished, or their absence satisfactorily explained. Allegations of mere negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity is set to one side, there remains sufficient content in the warrant affidavit, ... no hearing is required. Franks, 438 U.S. at 171-72, 98 S.Ct. 2674. While the Franks decision only concerned the inclusion of false material in a search warrant affidavit, courts have recognized that the Franks logic extends to deliberate or bad faith omissions of a material fact and to affidavits in support of electronic surveillance. See United States v. Charles, 213 F.3d 10, 24 (1st Cir.2000) (citation omitted); United States v. Bankston, 182 F.3d 296, 305 (5th Cir.1999); United States v. Green, 175 F.3d 822, 828 (10th Cir.1999) (citations omitted); Ippolito, 774 F.2d at 1485-87 and n. 1. “[A]" }, { "docid": "627084", "title": "", "text": "during the trial.” In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that a criminal defendant, upon a proper preliminary showing, must be afforded a hearing at which the truthfulness of factual statements made in an affidavit supporting a search warrant can be challenged. The Court stated: [W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. Id. at 155-156, 98 S.Ct. at 2676-77, 57 L.Ed.2d at 672. The court then set out the preliminary showing that must be made before an evidentiary hearing is required. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and, if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth Amendment, to his hearing. Id. at 171, 98 S.Ct. at 2685, 57 L.Ed.2d at 682 (footnote omitted). At the state" }, { "docid": "10126965", "title": "", "text": "can be met. In particular, it is appropriate to inquire whether the affidavit on which the probable cause determination was based was knowingly or recklessly false. Under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), a criminal defendant who seeks to suppress the fruits of a search warrant must show that (1) the affiant knowingly and intentionally, or with a reckless disregard of the truth, made false statements or omissions in his application for a warrant, and (2) such statements or omissions were necessary to the finding of probable cause. Id. at 155-56, 98 S.Ct. 2674; United States v. Martin, 426 F.3d 68, 73 (2d Cir.2005); United States v. Canfield, 212 F.3d 713, 717-18 (2d Cir.2000). This same standard applies in civil cases, like this one, brought pursuant to § 1983, in which a plaintiff seeks to challenge a warranted search as unlawful. See, e.g., Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir.1994) (citing Franks, 438 U.S. at 171-72, 98 S.Ct. 2674; Golino, 950 F.2d at 870-71); Magnotti v. Kuntz; 918 F.2d 364, 368 (2d Cir.1990) (applying Franks standard to issues of qualified immunity in § 1983: action). In such cases, a plaintiff must make a “substantial preliminary showing” that the affiant knowingly and intentionally, or with reckless disregard for the truth, made a material false statement in applying'for the warrant. Rivera v. United States, 928 F.2d 592, 604 (2d Cir.1991) (quoting Franks, 438 U.S. at 155, 98 S.Ct. 2674). “Unsupported conclusory allegations of falsehood or material omission” cannot support a challenge to the validity of the warrant; rather, the plaintiff must make “specific allegations” supported by an offer of proof. Velardi, 40 F.3d at 573. The Franks standard is, thus, “a high one.” Rivera, 928 F.2d at 604. 1. First Franks Element: Knowing Falsity or Reckless Disregard for Truth As to the first Franks element, it is insufficient for a plaintiff to allege that there were errors in the affidavit, as “misstatements or omissions caused by ‘negligence or innocent mistake[s]’ ” do not establish falsity or reckless disregard. United States v. Rajaratnam, 719" }, { "docid": "19922016", "title": "", "text": "omitted); see also United States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir.1993). To be entitled to a hearing on this issue (“Franks hearing”) a defendant must make a substantial preliminary showing that includes allegations of deliberate falsehood or of reckless disregard for the truth[.][T]hose allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted ... is only that of the affiant, not of any nongovernmental informant. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). While clear proof of these elements is not required at the stage at which the defendant is demonstrating an entitlement to an evidentiary hearing, United States v. Owens, 882 F.2d 1493, 1498 (10th Cir.1989), the defendant still must make a “substantial preliminary showing” comprised of specific allegations along with supporting affidavits or similarly reliable statements. Cf. Franks, 438 U.S. at 171, 98 S.Ct. 2674 (describing the showing requirements for allegedly false statements in warrant affidavits). Because “[tjhere is ... a presumption of validity with respect to the affidavit supporting the search warrant[,t]o mandate an evidentiary hearing, the challenger’s attack must be more than conelusory and must be supported by more than a mere desire to cross-examine.” Id. The substantiality requirement is not lightly met. United States v. Wajda, 810 F.2d 754, 759 (8th Cir.1987). Ill In its order granting the Franks hearing, the magistrate judge found that the defendant made a substantial preliminary showing that Officer Wells may have omitted information from the search warrant affidavit with a reckless disregard for the truth. Such a finding alone is legally insufficient to justify a Franks hearing absent a determination that the intentionally or recklessly omitted information may have rendered the affidavit misleading and may have otherwise made a" }, { "docid": "18848351", "title": "", "text": "subsection will treat Defendants’ attack upon the sufficiency of the affidavit to establish probable cause within its four corners; except that there is excluded, at this point, all matters relating to the sufficiency of missing page 21C and its context within the affidavit and under Franks v. Delaware, infra. This latter exception will be discussed later in this Opinion. Under Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-2685, 57 L.Ed.2d 667 (1978), there is a presumption of validity with respect to the affidavit supporting a search warrant or court order for electronic surveillance. To mandate an evidentiary hearing, the challenger’s attack must be supported by more than conclusory allegations, and must be supported by more than a mere desire to cross-examine. A defendant seeking an evidentiary hearing on the probable cause shown by affidavits presented to the court must make “a substantial preliminary showing that the statements in the affidavits concerning facts material to the finding of probable cause are deliberately false or made with reckless disregard for the truth.” United States v. Licavoli, 604 F.2d 613, 621 (9th Cir.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787. The allegations of deliberate falsehood or reckless disregard for the truth must be accompanied by an offer of proof which points out specifically the portion of the warrant affidavit that is claimed to be false and should be accompanied by a statement of supporting reasons. Franks, supra. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished or their absence satisfactorily explained— allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted by Franks is only that of the affiant, not of any non-governmental informant. And, finally, if the above requirements are met and if when material that is the subject of the alleged falsity or reckless disregard is set to one side there remains sufficient content in the application to support a finding of probable cause, no hearing is required. See also, United States v. Jeffers, 621 F.2d 221, 227 (5th Cir.1980). Here, no basis" }, { "docid": "20888878", "title": "", "text": "affidavit, Spinosa requested a Franks hearing. The district court denied the motion. In Franks v. Delaware, the Supreme Court established the requirements for such a hearing: There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684 (footnote omitted). Material omissions may also serve as a basis for a Franks hearing. United States v. Rumney, 867 F.2d 714, 720 (1st Cir.), cert. denied, 491 U.S. 908, 109 S.Ct. 3194, 105 L.Ed.2d 702 (1989); United States v. Paradis, 802 F.2d 553, 558 (1st Cir.1986). We need not decide whether the misrepresentations and omissions were made either knowingly or recklessly because, as the district court held, even had the affidavit been revised to reflect the misrepresentations and omissions of which Spinosa complains, there would nevertheless have been probable cause to issue the warrant. See Rumney, 867 F.2d at 720. We need only add a" }, { "docid": "22272157", "title": "", "text": "dismissed prior to trial. . The Government concedes that Runyan was incorrectly sentenced as a result of the trial court’s failure to group the counts of his conviction. . Runyan also argues that the warrants were invalid because Agent Nuckles's affidavit contained a statement that Runyan contends is materially false (i.e., a statement indicating that the desktop computer was in Runyan’s sole possession from 1995 to 1998) and because the affidavit did not contain any information about Misty’s credibility (i.e., the fact that she was on probation). However, a misstatement can vitiate an affidavit \"only if it is established that the misstatement was the product 'of deliberate falsehood or of reckless disregard for the truth [;] [alllegations of negligence or innocent mistake are insufficient.' ” United States v. Martin, 615 F.2d 318, 329 (5th Cir.1980) (quoting Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). Similarly, omissions cannot undermine the validity of a warrant unless such omissions are \"made intentionally or with a reckless disregard for the accuracy of the affidavit; negligent omissions will not undermine the affidavit.” Id. The defendant bears the burden of showing by a preponderance of the evidence that a misstatement or omission was more than mere negligence. Id. Runyan fails to meet this burden. An unsupported assertion that an affidavit contains a misstatement (or an omission) does not give rise to the inference that the affiant acted with reckless disregard for the accuracy of the information presented to the magistrate, particularly where the misstated or omitted facts in question are of only minor significance to the finding of probable cause. . This is not to say that discussion of prior illegal search activity in a warrant application is irrelevant in assessing whether the police would have sought a warrant in the absence of a prior illegal search. We simply find that, under the circumstances of the instant case, brief reference to the prior illegal search in the warrant application does not provide conclusive evidence of Agent Nuckles’s motivation in seeking the warrant. . Runyan contends that Misty’s testimony must be" }, { "docid": "23669079", "title": "", "text": "material omissions and misrepresentations in Agent Hausken’s search warrant affidavit. In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court set forth the procedure for challenging the validity of a search warrant for omissions and misrepresentations. A defendant must make a substantial preliminary showing that the affidavits in support of the warrant contained intentionally or recklessly false material statements. If this preliminary showing is made, the court must then hold a hearing to examine the affidavits. The court must see if, excluding the misrepresentations, probable cause would exist on the basis of the remaining information. If, without the exclusions, probable cause is lacking, the search warrant is defective and the evidence seized thereunder is excluded. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In this case, defendant Endicott was afforded the opportunity to make a preliminary showing of intentional or reckless material falsity at an evidentiary hearing. The district court found no evidence that Hausken intentionally, or with reckless disregard, misrepresented or omitted any facts in order to improperly secure a search warrant, stating, “although the affidavits of Agent Hausken may have contained minor errors or omissions concerning the date of alleged conversations and/or the exculpating statements made by defendant Endicott, the affidavits were essentially an accurate presentation of the information known to the affiant.” Having concluded that Endicott failed to show any intentional falsity or reckless disregard, and that any errors or omissions were “minor” (i.e., not material), the court had no occasion to reexamine the issue of probable cause. We review the district court’s factual findings as to intentional falsity or reckless disregard under the “clearly erroneous” standard. Fed.R.Civ.P. 52(a); United States v. Ritter, 752 F.2d 435, 439 (9th Cir.1985). Appellant asserts the transcripts of taped conversations between informant Jones and Endicott, presumably available, along with BATF reports about the meetings, to Agent Hausken, demonstrate the intentional falsity or reckless disregard of Hausken’s affidavit. After reviewing the excerpts of the transcripts provided by appellant, Hausken’s affidavit and the motions made below, we conclude that the district" }, { "docid": "8143173", "title": "", "text": "(1990)). “The ultimate determination of reasonableness under the fourth amendment ... is a question of law which we review de novo.” United States v. Arango, 912 F.2d at 444 (citing United States v. McKinnell, 888 F.2d 669, 672 (10th Cir.1989)). The legal standard for determining if a defendant is entitled to an evidentiary hearing to examine the factual truthfulness of an affidavit was set forth in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. Id. at 171-172, 98 S.Ct. at 2684. Ross alleged in his Motion to Suppress that Benton’s affidavits deliberately or recklessly contained false statements. See R.Yol. I at Tab 12. The motion specifically alleged that Benton’s affidavit supporting the first search warrant (for Ross’s car) was false in three ways. First, it falsely stated that the first confidential informant told Benton “that a Jon was distributing large amounts of cocaine from his residence and from his 1986 Honda Accord, silver in color bearing Kansas registration tag" }, { "docid": "19922015", "title": "", "text": "of probable cause before a search warrant may be issued. Determinations of probable cause must be premised on the totality of the circumstances. “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Where an issuing judge’s probable cause determination was premised on an affidavit containing false or omitted statements, the resulting search warrant may be invalid if the defendant can prove by a preponderance of evidence “(1) that the police omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading ... and (2) that the affidavit, if supplemented by the omitted information would not have been sufficient to support a finding of probable cause.” United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986) (citations omitted); see also United States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir.1993). To be entitled to a hearing on this issue (“Franks hearing”) a defendant must make a substantial preliminary showing that includes allegations of deliberate falsehood or of reckless disregard for the truth[.][T]hose allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted ... is only that of the affiant, not of any nongovernmental informant. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). While clear proof of these elements is not required at the stage at which the defendant is demonstrating an entitlement to an evidentiary hearing, United States v. Owens, 882 F.2d 1493, 1498" }, { "docid": "20117502", "title": "", "text": "As the Supreme Court stressed in Franks, this burden is not minimal: There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn - or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. 438 U.S. at 171, 98 S.Ct. at 2684. See also McNeese, 901 F.2d at 594 (“[defendant] must offer direct evidence of the affiant’s state of mind or inferential evidence that the affiant had obvious reasons for omitting facts in order to prove deliberate falsehood or reckless disregard”). Moreover, even where the defendant has succeeded in proffering evidence which substantiates his contention that the affidavit contained deliberate misrepresentations or omissions, the Court need not invariably grant the defendant an evidentiary hearing on the motion to suppress. Rather, the misstatements or omissions must be material; that is, they must have been necessary to the finding of probable cause underlying the warrant. A substantial preliminary showing that the affidavit contained reckless or deliberate falsities and omissions must be followed by a substantial showing that the affidavit purged of those falsities and supplemented by the omissions would not be sufficient to support a finding of probable cause. Id. at 596, citing Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684. See also id. at 156, 98 S.Ct. at 2676; United States v. Muhammad, 928 F.2d 1461, 1464-65 (7th Cir.1991). Having reviewed defendants’ motions as well as Agent Bowen’s affidavit with these requirements in mind, the Court finds that Shields has not made a substantial showing sufficient to require a Franks hearing." }, { "docid": "22578369", "title": "", "text": "this finding by the state court and the state’s concession, I find surprising the majority’s conclusion that the defendant officers’ misrepresentations and omissions were not material to the finding of probable cause by the magistrate. Admittedly, the New Jersey courts did not need to make the sophisticated analysis of the precedent engaged in by the majority because the state conceded the issue. But it must have had some basis to make such a concession. Thus, I can only attribute the majority’s conclusion to its decision that the defendants’ affidavit should not only be redacted of all of the misrepresentations, but that the affidavit should be corrected to include the relevant facts omitted by the officers. It is with that process that I disagree. The relevant analysis must begin with Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), where the issue a rose in the context of a defendant’s appeal from his conviction in state court on the ground that the warrant affidavit was procured by misrepresentations. Although proof of negligence or innocent mistake is insufficient, the Supreme Court rejected the state’s argument that a defendant may never challenge the veracity of a sworn statement used by police to procure a search warrant. Instead, the Court held that such a challenge may be made “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, ... if the allegedly false statement is necessary to the finding of probable cause....” Id. at 155, 98 S.Ct. at 2676. In discussing whether an evidentiary hearing is necessary when such a challenge is made by a defendant seeking to exclude the fruits of the search on the basis of a Fourth Amendment violation, the Court noted that a hearing is not required “if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause.” Id. at 171-72, 98" }, { "docid": "23255387", "title": "", "text": "supported by Oath or affirmation,” would be reduced to a nullity if a police officer was able to use deliberately falsified allegations to demonstrate probable cause, and, having misled the magistrate, then was able to remain confident that the ploy was worthwhile. Franks v. Delaware, 438 U.S. 154, 168, 98 S.Ct. 2674, 2682, 57 L.Ed.2d 667 (1978). Not every challenge to an affiant’s veracity will lead to an evidentiary hearing, however. Franks requires that a defendant make a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and ... is necessary to the finding of probable cause” before an evidentiary hearing (a “Franks\" hearing) must be conducted. Id. 438 U.S. at 155-56, 98 S.Ct. at 2676-77. The prerequisites for a Franks hearing have been clearly articulated: To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits of sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. Id. at 171-72, 98 S.Ct. at 2684-2685 (footnote omitted). Appellants filed six affidavits which challenged the veracity of Conley’s affidavit on a number of grounds. First, they alleged that the two undisclosed informants who purportedly placed or" } ]

[ { "docid": "5668125", "title": "", "text": "(3) the superseding indictment should have been dismissed for failure to state an offense against M.E.S. and failure to afford M.E.S. notice of the charges against it; (4) the search warrant executed for documents held by M.E.S. was overly broad; and (5) M.E.S.’s motion for discovery of certain government documents should have been granted. We find that M.E.S. raises no claims that are ripe for appellate review at this time. First, absent extraordinary circumstances, a defendant has no standing to appeal the dismissal of an indictment. In Parr v. United States, 351 U.S. 513, 76 S.Ct. 912, 100 L.Ed. 1377 (1956), the Supreme Court explained that a defendant is not injured by the dismissal of an indictment without prejudice pursuant to Fed.R.Crim.P. 48(a). “The testing of the effect of the dismissal order must abide petitioner’s trial, and only then, if convicted, will he have been aggrieved.” Id. at 517, 76 S.Ct. at 915; accord United States v. Lanham, 631 F.2d 356, 358 (4th Cir.1980). If M.E.S. is not reindicted, it will never have suffered injury as a result of the dismissal. If, on the other hand, M.E.S. is reindicted, then the dismissal is an intermediate step in the prosecution which may be reviewed only after final judgment in the case. See Parr v. United States, supra, 351 U.S. at 518-19, 76 S.Ct. at 916. The other claims raised by M.E.S. are objections to nonfinal orders of the trial court, which this court, by statute, is without jurisdiction to review. 28 U.S.C. § 1291 (1976). The exclusion of time under the Speedy Trial Act is an interlocutory order which is reviewable only after a conviction. See United States v. Grabinski, 674 F.2d 677, 680 (8th Cir.), cert. denied, 459 U.S. 829, 103 S.Ct. 67, 74 L.Ed.2d 67 (1982); United States v. Mehrmanesh, 652 F.2d 766, 768-70 (9th Cir.1980); cf. United States v. MacDonald, 435 U.S. 850, 856-61, 98 S.Ct. 1547, 1550-53, 56 L.Ed.2d 18 (1978) (alleged violation of sixth amendment right to speedy trial not appealable before judgment). Similarly, denials of motions to suppress evidence and requests for discovery are not" } ]

[ { "docid": "6378300", "title": "", "text": "the denial of a motion to dismiss an indictment on double jeopardy grounds, Ab-ney; and the denial of a congressman’s motion to dismiss a prosecution prohibited by the speech and debate clause, Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979). In United States v. MacDonald, 435 U.S. 850, 862-63, 98 S.Ct. 1547, 1553-54, 56 L.Ed.2d 18 (1978), the Supreme Court noted that double jeopardy claims constitute a more appropriate category of appealable orders than speedy trial claims because the nature of a double jeopardy claim “inherently limits the availability of the claim.” However, a defendant must make a colora-ble showing of previous jeopardy and the threat of repeated jeopardy in order to state a claim of double jeopardy. If a defendant does not make a colorable showing of the elements of double jeopardy, the filing of a notice of appeal from the denial of his or her motion to dismiss should not divest the district court of jurisdiction. See Riddle v. Hudgins, 58 F. 490 (8th Cir. 1893); United States v. Hitchmon, 602 F.2d 689, 691 (5th Cir. 1979) (en banc) (notice of appeal from a nonappealable order does not render void acts of district court taken before dismissal of appeal). The contrary rule would render the district courts powerless to prevent dilatory tactics. The implementation of this rule requires a procedure which both respects the principal established in Abney and prevents its abuse. In Abney, the Supreme Court stated that courts of appeals have supervisory power to establish procedures sufficient to strike this balance. 431 U.S. at 662 n.8, 97 S.Ct. at 2042 n.8. The Fifth Circuit established such a procedure in United States v. Dunbar, 611 F.2d 985, 988-89 (5th Cir. 1980). We adopt substantially the same procedure. Henceforth, we request a district court judge who denies a motion to dismiss based on double jeopardy to make a written finding of whether the motion is frivolous or nonfrivolous. If the motion is found to be frivolous, the filing of a notice of appeal will not divest the district court of jurisdiction. This court" }, { "docid": "6216491", "title": "", "text": "to review all “final decisions of the district courts.” It is settled in this circuit that new trial orders in civil cases are not appealable until after retrial because such orders are interlocutory rather than final. DePinto v. Provident Security Life Insurance Co., 323 F.2d 826 (9th Cir. 1963); Gilliland v. Lyons, 278 F.2d 56 (9th Cir. 1960); United States v. Hayes, 172 F.2d 677 (9th Cir. 1949); Long v. Davis, 169 F.2d 982 (9th Cir. 1948). We have yet to decide whether new trial orders in criminal cases are appealable before retrial. We conclude that they are not. The consistent policy of the federal judiciary has been to avoid interlocutory or piecemeal appellate review. See, e.g., United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978); DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). This policy has particular force in criminal cases, where delay often would impair the proper functioning of our criminal justice system. Thus, the Supreme Court has reiterated the traditional requirement of a final judgment as a predicate to federal appellate jurisdiction. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); see also United States v. Griffin, 617 F.2d 1342 (9th Cir. 1980). “In general, a ‘judgment’ or ‘decision’ is final for the purpose of appeal only ‘when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined.’ ” Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed. 1377 (1956), quoting St. Louis, Iron Mountain & Southern R. Co. v. Southern Express Co., 108 U.S. 24, 28, 2 S.Ct. 6, 8, 27 L.Ed. 638 (1883); United States v. Carnes, 618 F.2d 68 (9th Cir. 1980). This rule applies in criminal as well as civil cases. Parr v. United States, 351 U.S. at 518, 76 S.Ct. at 916. “Final judgment in a criminal case means sentence. The sentence is the judgment.” Berman v. United States, 302 U.S. 211," }, { "docid": "15665633", "title": "", "text": "was denied. This appeal followed. The government subsequently filed a motion to dismiss this appeal on the ground that the order is not final under the tenets of 28 U.S.C. § 1291. The district court, in staying its proceedings pending disposition of this appeal, concluded that its order denying appellant’s motion to dismiss is immediately appealable, though interlocutory. For the following reasons, we disagree. It is well established that there is no constitutional right to an appeal. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). The right of appeal, as we presently know it in criminal cases, is statutory in nature, and the appellant must come within the statutory terms. Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977); United States v. Ritter, 587 F.2d 41, 43 (10th Cir. 1978); 28 U.S.C. § 1291. Interlocutory or “piecemeal” appeals are disfavored and barring some explicit exception to the finality of judgment rule, pretrial orders, in criminal cases, are not appealable. See United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978); see also United States v. Valenzuela, 584 F.2d 374, 377 (10th Cir. 1978). Appellant relies upon the case of Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) [hereinafter Abney ] to support immediate appeal-ability. In Abney, the Court held that an order denying petitioner’s challenge to the sufficiency of an indictment, premised on the possibility of petitioner being tried twice for the same offense, is immediately appealable. Abney, 431 U.S. at pp. 659-662, 97 S.Ct. at pp. 2040-2041. The essence of appellant’s argument is that the district court’s order is immediately appealable because he is being put in double jeopardy. The government argues that there is no double jeopardy in that the California indictment, concerning tax fraud for the years of 1970 through 1973, has nothing whatsoever to do with the challenged indictment concerning the years of 1976 through 1977. Appellant has not asserted that there is any connection other than the plea agreement, between the crimes charged" }, { "docid": "21549683", "title": "", "text": "City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980),] make it quite clear that, unlike various government officials, municipalities do not enjoy immunity from suit—either absolute or qualified—under § 1983.”); Hollyday, 964 F.2d at 1444-45 (Luttig, J., concurring) (stating that giving municipality absolute legislative immunity from section 1983 claim would be, \"at the very least, in substantial tension with, if not foreclosed by,” Owen)', Hollyday, 964 F.2d at 1448 (Butzner, J. dissenting) (indicating that Owen and other opinions of the Supreme Court make \"clear” that municipality is not entitled to absolute immunity from section 1983 claim). . It should be noted that the Supreme Court has held, in two criminal cases, that courts of appeals do not have pendent appellate jurisdiction. United States v. MacDonald, 435 U.S. 850, 857 n. 6, 98 S.Ct. 1547, 1551 n. 6, 56 L.Ed.2d 18 (1978); Abney v. United States, 431 U.S. 651, 662-63, 97 S.Ct. 2034, 2042, 52 L.Ed.2d 651 (1977). As stated in MacDonald: \"[A] federal court of appeals is without pendent jurisdiction over otherwise nonappealable claims even though they are joined with a ... claim over which the appellate court does have interlocutory appellate jurisdiction.” MacDonald, 435 U.S. at 857 n. 6, 98 S.Ct. at 1551 n. 6. While MacDonald and Abney could possibly be reconciled with Akers and O’Bar by confining the former to the criminal context, the Supreme Court did not explicitly so confine them and, in one instance, this Court has applied their rule in a civil case, MacKethan v. Peat, Marwick, Mitchell & Co., 557 F.2d 395, 396 (4th Cir.1977) (citing Abney and stating that when a court of appeals reviews an appealable interlocutory order, it \"should not ... consider! ] other non-appealable assignments of error under the doctrine of pendent jurisdiction”); see also San Filippo v. United States Trust Co. of New York, 470 U.S. 1035, 1036, 105 S.Ct. 1408, 1409, 84 L.Ed.2d 797 (1985) (White, J.) (dissent from denial of certiora-ri ) (asserting that court of appeals' exercise in a civil case of pendant appellate jurisdiction was \"clearly in tension with our" }, { "docid": "2402161", "title": "", "text": "assert that the wrongful acts of their attorney, and the government’s exploitation of those acts, have prejudiced the conduct of their defense. But this complaint is intertwined with guilt. It is not clearly collateral. United States v. MacDonald, 435 U.S. 850, 859, 98 S.Ct. 1547, 1552, 56 L.Ed.2d 18 (1978) (denial of motion to dismiss on sixth amendment speedy trial grounds not appealable). Cohen’s third factor is not met either. The defendants do not claim, nor could they, a right not to be indicted a second time. Compare Abney v. United States, 431 U.S. 651, 659-660, 97 S.Ct. 2034, 2040-2041, 52 L.Ed.2d 651 (1977) (the denial of dismissal on double jeopardy grounds is appealable under Cohen because the denial order is collateral to guilt and the defendant’s right not to be tried twice would be lost absent appeal). Rather, “the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.” Parr v. United States, 351 U.S. at 519-20, 76 S.Ct. at 916-917. Similarly, the defendants’ and amicus’ claim of government misconduct in knowingly exploiting the breach of the attorney-client privilege is neither separable from the issue of guilt, nor an issue which cannot be dealt with fully and fairly on an appeal from judgment. United States v. Rey, 641 F.2d 222, 224 (5th Cir. 1981); United States v. Gregory, 656 F.2d 1132, 1135-36 (5th Cir. 1981) (denial of motion to dismiss based on prosecutorial vindictiveness not appealable). The third factor in Cohen requires that the district court’s decision involve an important right which would be lost without immediate appellate review. 337 U.S. at 546, 69 S.Ct. at 1225. The defendants argue that they meet this factor because they will be irreparably harmed by the further disclosure of privileged information in a second prosecution, or by further use of information already disclosed. That is not the case. The defendants acknowledge that the dismissal without prejudice left the parties as if no action had ever been filed. The district court explicitly restricted the government in the scope of evidence it could" }, { "docid": "8810107", "title": "", "text": "a defendant can raise a late challenge to a duplicitous indictment if cause is shown that might justify the granting of relief from the waiver.” (quotations omitted)). We discern no reason to grant the Schneiders relief from their waiver. . Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). . It is doubtful whether pendant jurisdiction even applies to a § 3731 cross-appeal. In Abney, 431 U.S. at 662, 97 S.Ct. 2034, the Supreme Court held that a defendant could immediately appeal, under the collateral order doctrine, the denial of a motion to dismiss raising a Double Jeopardy defense .... The Court cautioned that its holding was based on the special considerations permeating Double Jeopardy claims. Other claims presented to, and rejected by, the district court in passing on the accused’s motion to dismiss .... are appealable if, and only if, they too fall within the collateral-order exception to the final-judgment rule. Cases interpreting Abney appear to categorically foreclose pendent appellate jurisdiction in criminal cases. United States v. Eberhart, 388 F.3d 1043, 1051-52 (7th Cir.2004) (listing cases), overruled on other grounds by Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005); see also United States v. DiBernardo, 775 F.2d 1470, 1474 n. 8 (11th Cir.1985) (\"It is also clear that this court is without pendent jurisdiction over appellees' cross-appeal.’’) (citing United States v. MacDonald, 435 U.S. 850, 857 n. 6, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978))." }, { "docid": "12090883", "title": "", "text": "methods of achieving the goal are not unanimously agreed upon.” R6-321-22 (emphasis added). For the foregoing reasons, we hold that there was no double jeopardy or collateral estoppel bar to the second trial of the substantive count. B. Did the District Court have Jurisdiction to Proceed with the Trial Following Farmer’s Notice of Appeal? In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Supreme Court ruled that an order denying a motion to dismiss an indictment on double jeopardy grounds is immediately appeal-able. The filing of a notice of appeal generally strips the district court of jurisdiction as to the matters appealed. United States v. Rogers, 788 F.2d 1472, 1475 (11th Cir.1986) (citing Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 1331, 84 L.Ed.2d 274 (1985)). However, the Abney Court approved the establishment by the lower courts of procedures designed “to weed out frivolous claims of former jeopardy.” Abney, 431 U.S. at 662 n. 8, 97 S.Ct. at 2042 n. 8. Our predecessor circuit responded to the Supreme Court’s invitation in United States v. Dunbar, 611 F.2d 985 (5th Cir.) (en banc), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). See also United States v. Bizzard, 674 F.2d 1382, 1385 (11th Cir.), cert. denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 286 (1982). Under Dunbar, the district court is not divested of jurisdiction if it makes written findings that the double jeopardy claim is frivolous or dilatory. Dunbar, 611 F.2d at 988. In the instant case, the district court denied Farmer’s pretrial motion to dismiss on double jeopardy grounds and refused to stay the second trial pending appeal. The district court found appellant’s claims to be frivolous within the meaning of Dunbar. Although we have rejected Farmer’s double jeopardy claims in this opinion, this does not necessarily mean that Farmer’s double jeopardy arguments were frivolous. Farmer argues that we must vacate his conviction for want of jurisdiction despite our holding rejecting the double jeopardy and collateral estoppel claims on the merits. Employing the" }, { "docid": "2402158", "title": "", "text": "Cohen to criminal cases have involved denials of motions to dismiss indictments. See, e.g., United States v. MacDonald, 435 U.S. 850, 851, 98 S.Ct. 1547, 1548, 56 L.Ed.2d 18 (1978) (denial of motion to dismiss based on speedy trial grounds); Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (denial of motion to dismiss based on double jeopardy grounds). A denial of a motion to dismiss leaves a defendant in the throes of a prosecution. It is therefore distinguishable from a dismissal, the effect of which is to leave the matter as if no suit had been filed. While the denial of a motion to dismiss may leave a defendant aggrieved, a dismissal does not. Arguably, appealability may be undercut by this alone. See Parr v. United States, 351 U.S. at 517, 76 S.Ct. at 915. Putting aside the question of “aggrievement,” application of the factors announced in Cohen does not support jurisdiction here. These factors are: 1) the order must fully dispose of the matter in dispute; 2) the order must not be simply a step toward final disposition of the merits of the case which would be merged in final judgment; rather it must resolve an issue completely separable from and collateral to the cause of action asserted; and 3) the decision must involve an important right which would be lost irreparably if review had to await final judgment. 337 U.S. at 546, 69 S.Ct. at 1225. See Abney v. United States, 431 U.S. at 658-59, 97 S.Ct. at 2039-2040 (summarizing the Cohen factors). Abney found all of the Cohen factors present in order to support appellate jurisdiction. We have disallowed appeals where less than all of the factors were present. United States v. Rey, 641 F.2d 222, 224 (5th Cir.), cert. denied, 454 U.S. 861, 102 S.Ct. 318, 70 L.Ed.2d 160 (1981). Such a situation is present here. As in Rey, the first factor is met — the district court conclusively determined that the defendants’ constitutional rights were violated. Likewise, the dismissal of the indictment fully disposed of that indictment. However, neither" }, { "docid": "22328349", "title": "", "text": "on the Criminal Appeals Act, 18 U. S. C. § 3731 (1964 ed., Supp. V), which, at the time, provided in relevant part: “An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances: “From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.” Currently, 18 U. S. C. § 3731 (1976 ed.) provides: “In a criminal case, an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.” Obviously, neither the former version of the statute nor the current one has anything whatsoever to do with a defendant’s right to appeal the denial of a motion to dismiss an indictment on speedy trial grounds. The justifications proffered by the Court of Appeals for its exercise of jurisdiction (see supra, at 852-853) are not persuasive for us. The argument that respondent’s Sixth Amendment claim' was “pendent” to his double jeopardy claim is vitiated by Abney v. United States, 431 U. S. 651, 662-663 (1977) (decided after the Court of Appeals filed its opinion), where this Court concluded that a federal court of appeals is without pendent jurisdiction over otherwise nonappealable claims even though they are joined with a double jeopardy claim over which the appellate court does have interlocutory appellate jurisdiction. See also United States v. Cerilli, 558 E. 2d 697, 699-700 (CA3), cert. denied, 434 U. S. 966 (1977). The Court of Appeals’ alternative rationale — that it was the “extraordinary nature” of respondent’s claim that merited interlocutory appeal, even though not all speedy trial claims would be so meritorious — is also unpersuasive. “Appeal rights cannot depend on the facts of a particular case.” Carroll v. United States, 354 U. S. 394, 405" }, { "docid": "13906158", "title": "", "text": "Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978)). In Parr v. United States, 351 U.S. 513, 516-19, 76 S.Ct. 912, 914-16, 100 L.Ed. 1377 (1956), decided after Cohen, the Supreme Court held that the denial of a defendant’s pretrial motion to dismiss an indictment is not a final order under section 1291 and that the collateral order doctrine does not apply. The Court reasoned that a defendant can challenge the propriety of such a denial on an appeal from a judgment of conviction, and that permitting an interlocutory appeal would defeat the policy against piecemeal review in criminal cases which underlies the finality requirement of section 1291. Id. at 519, 76 S.Ct. at 916. Although the Court has since held that a defendant may appeal the denial of a pretrial motion to dismiss based on double jeopardy grounds, see Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977), the Court has refused to extend the right to appeal to denials of defendants’ motions to dismiss on other grounds. See United States v. MacDonald, 435 U.S. 850, 856-61, 98 S.Ct. 1547, 1550-53, 56 L.Ed.2d 18 (1978) (order denying motion to dismiss on speedy trial grounds not appealable). The reasoning of MacDonald compels the conclusion that a district court order rejecting a proposed plea bargain is not appealable by the defendant until after he has been convicted and sentenced. Rejection of a plea bargain obviously is not final in the sense of terminating the criminal proceedings in the trial court. See id. at 857, 98 S.Ct. at 1550. It does not represent “a complete, formal, and, in the trial court, final rejection” of the defendant’s claim. Abney, 431 U.S. at 659, 97 S.Ct. at 2040. Thus, the prosecutor and defendant may renegotiate an agreement that the district court will accept, or the defendant’s claim may be satisfied by a subsequent acquittal if no plea agreement is reached. In addition, rejection of a plea agreement is not “collateral to, and separable from, the principal issue at the accused’s impending" }, { "docid": "1393435", "title": "", "text": "the certification order “would not appear to be subject to interlocutory review on its own.” Maj. op. at 210. That eminently correct observation, shared by one other circuit (see United States v. Juvenile Female, 869 F.2d 458, 460 (9th Cir.1989)), should have put an end to the appeal from that order. If not the collateral order doctrine, what other basis is there for asserting appellate jurisdiction? Some federal appellate courts, ours included, have devised a doctrine of “pendent” appellate jurisdiction in civil cases. See, e.g., Swint v. Chambers County Comm’n, 514 U.S. 35, 44-45 n. 2, 115 S.Ct. 1203, 1209 n. 2, 131 L.Ed.2d 60 (1995); Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1026 (D.C.Cir.1997). This enables a court of appeals to reach out and review orders over which it has no independent jurisdiction. But pendent appellate jurisdiction has no place in criminal cases, where the final judgment rule is “at its strongest.” Hollywood Motor Car Co., 458 U.S. at 265, 102 S.Ct. at 3082. The Supreme Court could not be clearer on the point — in criminal cases, would-be pendent claims “are appeal-able if, and only if, they too fall within Cohen’s collateral-order exception to the final-judgment rule.” Abney v. United States, 431 U.S. 651, 663, 97 S.Ct. 2034, 2042, 52 L.Ed.2d 651 (1977); see also MacDonald, 435 U.S. at 857 n. 6, 98 S.Ct. at 1551 n. 6; United States v. Rostenkowski, 59 F.3d 1291, 1301 (D.C.Cir.1995); United States v. Crosby, 20 F.3d 480, 487 (D.C.Cir.1994); Juvenile Female, 869 F.2d at 460; Note, The Proper Scope of Pendent Appellate Jurisdiction in the Collateral Order Context, 100 Yale L.J. 511, 520 (1990). Now to point four. The majority’s theory, as I understand it, flows from a line of cases such as Mansfield, Coldwater & Lake Michigan Railway v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511-12, 28 L.Ed. 462 (1884), which holds that a federal appellate court must first satisfy itself of its jurisdiction and then must make sure that the lower court also had jurisdiction. See, e.g., Bender v. Williamsport Area Sch. Dist.," }, { "docid": "15597785", "title": "", "text": "laws create time and manner restrictions on, rather than permanent barriers to, prosecution. Levine, 658 F.2d at 126 (emphasis added); accord, United States v. Litman, 661 F.2d 17 (3d Cir.1981), cert. denied, 454 U.S. 1150, 102 S.Ct. 1016, 71 L.Ed.2d 304 (1982). When the right to be free from trial is not vindicated prior to trial, that right can never be recovered. When the right to be tried in a particular manner is not vindicated prior to trial, the defendant can still avail himself of post-conviction remedies after the fact. This is true even if the defendant has already endured a trial that he should not have endured, and even if the proper remedy for the constitutional or statutory violation is dismissal of the charges or reversal of the conviction. See United States v. Hollywood Motor Car Co., 458 U.S. 263, 269, 102 S.Ct. 3081, 3084, 73 L.Ed.2d 754 (1982) (per curiam); United States v. MacDonald, 435 U.S. 850, 860-61, 98 S.Ct. 1547,1552-55, 56 L.Ed.2d 18 (1978) (speedy trial violation not immediately appealable). Because Liotard’s request that the district court exercise its supervisory powers to protect him from fragmentary prosecution would, if successful, create a “manner restriction[ ] on, rather than [a] permanent barrier[] to, prosecution,” we must dismiss his appeal from this part of the district court’s order. For the foregoing reasons, the order of the district court denying the defendant’s double jeopardy motion will be reversed and the case remanded for a hearing on that motion in conformity with this opinion. The appeal from the district court’s order denying the defendant’s “supervisory powers” motion is dismissed. . The January 6, 1986 indictment is hereinafter referred to as the \"Pittsburgh indictment.” . The April 18, 1986 indictment is hereinafter referred to as the \"New Jersey indictment.” . Liotard’s appeal from the district court’s denial of his motion to dismiss is interlocutory. We have jurisdiction over that portion of his appeal concerning the double jeopardy clause. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). . The double jeopardy clause \"protects against a second" }, { "docid": "21549682", "title": "", "text": "capacity when it undertakes an action that is not prospective, legislative-type rulemaking but is within the traditional legislative province. . We need not, and do not, decide here whether a local governmental body, or the municipality for which it is the governing body, is ever entitled to absolute legislative immunity. See Baker v. Mayor of Baltimore, 894 F.2d 679, 682 (4th ar. 1990) (holding that city council is entitled to absolute legislative immunity from claim under the Age Discrimination in Employment Act), cert. denied, 498 U.S. 815, 111 S.Ct. 56, 112 L.Ed.2d 31 (1990); Hollyday v. Rainey, 964 F.2d 1441, 1443 (4th Cir.) (Hall, J., concurring) (finding that municipality is entitled to absolute legislative immunity from section 1983 claim), cert. denied, - U.S. -, 113 S.Ct. 636, 121 L.Ed.2d 567 (1992); but see Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, - U.S. -, -, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993) (\"[Monell v. New York Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980),] make it quite clear that, unlike various government officials, municipalities do not enjoy immunity from suit—either absolute or qualified—under § 1983.”); Hollyday, 964 F.2d at 1444-45 (Luttig, J., concurring) (stating that giving municipality absolute legislative immunity from section 1983 claim would be, \"at the very least, in substantial tension with, if not foreclosed by,” Owen)', Hollyday, 964 F.2d at 1448 (Butzner, J. dissenting) (indicating that Owen and other opinions of the Supreme Court make \"clear” that municipality is not entitled to absolute immunity from section 1983 claim). . It should be noted that the Supreme Court has held, in two criminal cases, that courts of appeals do not have pendent appellate jurisdiction. United States v. MacDonald, 435 U.S. 850, 857 n. 6, 98 S.Ct. 1547, 1551 n. 6, 56 L.Ed.2d 18 (1978); Abney v. United States, 431 U.S. 651, 662-63, 97 S.Ct. 2034, 2042, 52 L.Ed.2d 651 (1977). As stated in MacDonald: \"[A] federal court of appeals is without pendent jurisdiction over" }, { "docid": "12520305", "title": "", "text": "government moved to dismiss Defendant’s cross-appeal for lack of jurisdiction. In an earlier opinion, we denied the government’s motion. United States v. Wood, 950 F.2d 638, 643 (10th Cir.1991). .Section 3731 provides, in relevant part: In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment ... or granting a new trial after verdict or judgment, as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution. 18 U.S.C. § 3731. . Defendant framed the issue by asserting that the district court erred in denying his motion for a judgment of acquittal. In our earlier order denying the government's motion to dismiss Defendant’s cross-appeal as interlocutory, we held that Defendant had raised a colorable double jeopardy claim; therefore, our jurisdiction was proper under the collateral order doctrine. Wood, 950 F.2d at 642. See also Richardson v. United States, 468 U.S. 317, 322, 104 S.Ct. 3081, 3084, 82 L.Ed.2d 242 (1984); Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977). We must, therefore, review Defendant’s insufficiency claim in light of its double jeopardy implications as this is the basis of our jurisdiction over Defendant’s cross-appeal. . The concept of continuing jeopardy has its origins in Justice Holmes dissent in Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904). In Kepner, the Court held that a section of the act establishing a civil government in the Philippine Islands, then a United States territory, Act of July 1, 1902, § 5, 32 Stat. 691, which contained language identical to that of the Double Jeopardy Clause, effectively repealed an earlier military order giving the territorial government a right to appeal a judgment of acquittal in a criminal case. 195 U.S. at 133-34, 24 S.Ct. at 806. In dissent, Justice Holmes recognized that the Court’s opinion would be used to interpret the Double Jeopardy Clause, and his disagreement with" }, { "docid": "15113227", "title": "", "text": "denying a motion to dismiss the indictment on double jeopardy grounds is appealable within the Cohen collateral-order exception. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). It reasoned the right against double jeopardy was not only to be free from subsequent convictions but also from successive prosecutions, and this right would be irreparably lost if the appeal from the order denying the claim awaited final judgment. The Court, however, expressly held its ruling did not extend to other claims presented in a motion to dismiss an indictment: In determining that the courts of appeals may exercise jurisdiction over an appeal from a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds, we, of course, do not hold that other claims contained in the motion to dismiss are immediately appealable as well. Our conclusion that a defendant may seek immediate appellate review of a district court’s rejection of his double jeopardy claim is based on the special considerations permeating claims of that nature which justify a departure from the normal rule of finality. Quite obviously, such considerations do not extend beyond the claim of former jeopardy and encompass other claims presented to, and rejected by, the district court in passing on the accused’s motion to dismiss. 431 U.S. at 662-63, 97 S.Ct. at 2042 (citation omitted). To be appealable, then, the denial must infringe upon a right which, because of its unique nature, can only be protected by immediate review. The Supreme Court has considered the issue of immediate review in two later criminal cases. In Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979), the Court held a Congressman was entitled to an interlocutory appeal of the refusal to dismiss an indictment on the ground it violated the Speech or Debate Clause, because that clause protected the right to be free from litigation arising out of conduct on the floor of Congress. In United States v. Mac Donald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978), on the other hand, the Court held that" }, { "docid": "2402157", "title": "", "text": "Parr v. United States, 225 F.2d at 332. Dismissal of the indictment prevented that issue from being reached. Since it was not reached or decided there is nothing from which to appeal. Whether the dismissal leaves the defendants open to further prosecution or whether the dismissal ought to bar prosecution altogether has no effect on appealability. Parr v. United States, 351 U.S. at 517, 76 S.Ct. at 915. Any testing of the dismissal order must abide the outcome of a trial on the issue of guilt. Then, if convicted, the defendants may be aggrieved. Id. See United States v. Lanham, 631 F.2d 356 (4th Cir. 1980) (dismissal of indictment without prejudice not appealable, citing Parr v. United States). See also United States v. Arzate, 545 F.2d 481 (5th Cir. 1977). The defendants’ claim that this situation comes within the collateral order exception to the final judgment rule first announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), is untenable. To begin with, the major decisions applying Cohen to criminal cases have involved denials of motions to dismiss indictments. See, e.g., United States v. MacDonald, 435 U.S. 850, 851, 98 S.Ct. 1547, 1548, 56 L.Ed.2d 18 (1978) (denial of motion to dismiss based on speedy trial grounds); Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (denial of motion to dismiss based on double jeopardy grounds). A denial of a motion to dismiss leaves a defendant in the throes of a prosecution. It is therefore distinguishable from a dismissal, the effect of which is to leave the matter as if no suit had been filed. While the denial of a motion to dismiss may leave a defendant aggrieved, a dismissal does not. Arguably, appealability may be undercut by this alone. See Parr v. United States, 351 U.S. at 517, 76 S.Ct. at 915. Putting aside the question of “aggrievement,” application of the factors announced in Cohen does not support jurisdiction here. These factors are: 1) the order must fully dispose of the matter in dispute; 2) the" }, { "docid": "7856022", "title": "", "text": "Cir. 1979) (en banc); National Equipment Rental, Ltd. v. Mercury Typesetting Co., 323 F.2d 784, 786 (2d Cir. 1963). We also conclude that the district court properly denied Hastings’ motion to quash the indictment. I. Jurisdiction of the Court of Appeals As an initial matter, the government challenges our jurisdiction to hear this interlocutory appeal. Courts will hear a non-certified interlocutory appeal only if the subject of the appeal is a collateral matter that could not be reviewed effectively on appeal from final judgment. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The Supreme Court has held that an interlocutory appeal from the denial of a motion to quash an indictment comes within the Cohen exception to the final judgment rule only when the right asserted by the criminal defendant would be irreparably lost if he were forced to undergo trial. E.g., Helstoski v. Meanor, 442 U.S. at 506-08, 99 S.Ct. at 2448-49 (interlocutory appeal on speech or debate clause grounds permissible); Abney v. United States, 431 U.S. 651, 660-62, 97 S.Ct. 2034, 2040-41, 52 L.Ed.2d 651 (1977) (interlocutory appeal on double jeopardy grounds permissible); see United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 1552, 56 L.Ed.2d 18 (1978) (interlocutory appeal on speedy trial grounds not allowed); United States v. Gregory, 656 F.2d 1132, 1134-35 (5th Cir. 1981) (interlocutory appeal on vindictive prosecution grounds not allowed). In this case, appellant contends that as an active federal judge he has an absolute right not to be tried in a federal court unless and until he is impeached and convicted by Congress. Like the right secured by the speech or debate clause in Helstoski or the right secured by the double jeopardy clause in Abney, the right asserted by Hastings is the freedom from the obligation to endure a criminal trial which would be wholly deprived of meaning if he were forced to undergo trial before he could assert it. See United States v. Brizendine, 659 F.2d 215, 219 (D.C.Cir.1981). The government seeks to distinguish Ab-ney and Helstoski on the ground" }, { "docid": "16391165", "title": "", "text": "denial of these pretrial motions. It is axiomatic that this Court’s jurisdiction is defined by statute. See, e. g., Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977). The statute applicable here is 28 U.S.C. § 1291 (1976), which grants this Court “jurisdiction of appeals from all final decisions of the district courts of the United States . ” (emphasis added). A pretrial order denying a defendant’s motion to dismiss an indictment is not normally an appealable “final decision” under this section. E. g., United States v. MacDonald, 435 U.S. 850, 853-54, 98 S.Ct. 1547, 1549, 56 L.Ed.2d 18 (1978) (barred pretrial appeal of denial of motion to dismiss indictment on Sixth Amendment grounds); Hoffa v. Gray, 323 F.2d 178, 179 (6th Cir.), cert. denied, 375 U.S. 907, 84 S.Ct. 199, 11 L.Ed.2d 147 (1963). The Supreme Court has held, however, that § 1291 does not limit appellate jurisdiction to review of “those final judgments which terminate an action . . . .” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). Under Cohen, an order on a pretrial motion is immediately reviewable if (inter alia) the trial court’s decision involved rights which would be “lost, probably irreparably [,]” if review were deferred until after trial. Id. at 546, 69 S.Ct. at 1225-1226. A defendant’s right not to be twice put in jeopardy for the same offense would be lost irreparably if the right could only be raised following conviction at a second trial. Therefore denial of a pretrial motion to dismiss an indictment on double jeopardy grounds is considered “final,” and hence immediately reviewable in the Court of Appeals. Abney, supra, 431 U.S. at 659. Appellants argue that their attack on RICO’s application is “part and parcel” of their double jeopardy claim and should now be considered by this Court. Abney forbids this; this Court does not have ancillary appellate jurisdiction to consider otherwise nonappealable questions which are raised simultaneously with double jeopardy claims. A contrary rule would encourage defendants’ assertions of frivolous" }, { "docid": "13642976", "title": "", "text": "REVIEW The district court’s order denying dismissal of an indictment on double jeopardy grounds is a question of law we review de novo. See United States v. Schwartz, 785 F.2d 673, 676 (9th Cir.), cert. denied, 479 U.S. 890, 107 S.Ct. 290, 93 L.Ed.2d 264 (1986). DISCUSSION I.Finality The government contends we lack appellate jurisdiction because the district court’s denial of Castiglione’s motion to dismiss was not a final order. The government’s contention lacks merit. The “final judgment rule” of 28 U.S.C. § 1291 is subject to the collateral order exception of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The Supreme Court discussed the Cohen holding in Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977), and held that “pretrial orders rejecting claims of former jeopardy ... constitute ‘final decisions’ and thus satisfy the jurisdictional prerequisites of § 1291.” Id. at 662, 97 S.Ct. at 2041 (footnote omitted); United States v. Baptiste, 832 F.2d 1173, 1174 n. 1 (9th Cir.1987) (a district court’s order remanding a case for retrial is not “final,” but rather falls within the Cohen “collateral order” exception because it constitutes a final rejection of the defendant’s double jeopardy claim and is collateral to the principal issue of guilt); accord United States v. Cejas, 817 F.2d 595, 596 (9th Cir.1987). The district court’s order denying Castiglione’s motion to dismiss the indictment falls within the collateral order exception, giving this court jurisdiction over the appeal. II. Colorable Claim The government contends we lack appellate jurisdiction because Castiglione has not raised a colorable claim. That contention lacks merit. The government is correct in contending that a double jeopardy claim is not appealable unless it is color-able. Richardson v. United States, 468 U.S. 317, 322, 104 S.Ct. 3081, 3084, 82 L.Ed. 2d 242 (1984), citing United States v. MacDonald, 435 U.S. 850, 862, 98 S.Ct. 1547, 1553, 56 L.Ed.2d 18 (1978). Castiglione, however, has raised a colorable claim by his argument that dismissal of the indictment with prejudice constitutes a final decision on the" }, { "docid": "196800", "title": "", "text": "his trial. He acknowledges that the denial of a motion to dismiss the indictment directly based on these charges is not an appealable order. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). The Supreme Court has held that the denial of a motion to dismiss an indictment on the grounds of double jeopardy is an appealable order, despite its interlocutory nature. Id. However, the Court also concluded that pendent claims which seek an indictment’s dismissal are not reviewable short of final judgment. Id. at 662-63, 97 S.Ct. at 2041-2042. See also, United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978). A review of the record herein demonstrates conclusively that Klein’s mistrial was caused by a deadlocked jury and not by the other rulings objected to by appellant. If the rulings complained of by Klein recur at the second trial, they can “be reviewed effectively, and, if necessary, corrected if and when a final judgment results.” Abney, supra, 431 U.S. at 663, 97 S.Ct. at 2042. The Third Circuit aptly stated in United States v. Cerilli, 558 F.2d 697, 701 (3rd Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 507, 54 L.Ed.2d 452 (1977): Although there are claims that the prosecution has engaged in various improprieties, the fact remains that the underlying source of the mistrial was not tainted by any overreaching, prosecutorial or otherwise. V Appellant urges by letter submitted after argument that the Supreme Court’s recent opinion in United States v. Scott, - U.S. -, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), suggests that, whenever a trial is terminated over a defendant’s objections, the double jeopardy clause bars a retrial. Appellant concedes that the facts clearly distinguish Scott from this case. Nevertheless, he finds the language of the opinion supportive of his claim of double jeopardy. We disagree. Klein points out that, in overruling United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), the Court in Scott stressed that Jenkins had “placed an unwarrantedly great emphasis on the defendant’s right to have his" } ]

[ { "docid": "22722985", "title": "", "text": "adopting any or all of the IJ’s findings of fact is not infected by an erroneous application of law by the IJ. If the BIA had disclaimed the IJ’s erroneous statement of the burden of proof as it did with the IJ’s credibility findings, and articulated an independent assessment of the evidence under the correct standard, our review would reflect the substantial deference to the BIA that the statutes and our cases contemplate. Although the BIA compounded the IJ’s error, we are nonetheless reluctant to reverse the BIA’s decision and grant Mikhael’s request for asylum. “Where an agency has failed to comply with its responsibilities, we should insist on its compliance rather than attempt to supplement its efforts.” Sanon, 52 F.3d at 652. We make no determination of the merits of Mikhael’s claim, but because we are convinced of the BIA’s error, we are constrained to remand this ease to the BIA for further proceedings. Accordingly, we vacate the BIA’s decision and remand for further proceedings under the proper standard of proof on the issue of Mikhael’s well-founded fear of persecution. II. WITHHOLDING OF DEPORTATION. The IJ concluded summarily that based on Mikhaers failure to provide sufficient evidence to be granted asylum, he also fell short of the required evidence for withholding of deportation. Unlike in asylum cases, for withholding of deportation purposes, the Act confers no discretionary authority to the Attorney General. Upon satisfaction of the requirements for withholding of deportation, the Attorney General “shall” withhold deportation. See INA § 243(h)(1), 8 U.S.C. § 1253(h)(1). In addition, though reviewed together, a claim for asylum is a distinct remedy than a claim for withholding of deportation. Bahramnia v. INS, 782 F.2d 1243, 1247 (5th Cir.1986). The level of proof required to satisfy the requirements for withholding of deportation is more stringent than for asylum purposes. Here, the standard requires the petitioner to show a “clear probability” that he or she will be persecuted if deported. Castillo-Rodriguez, 929 F.2d at 185. As a result, many deportation cases that have not found sufficient evidence for asylum purposes have summarily dismissed requests for" } ]

[ { "docid": "22745733", "title": "", "text": "“also look to the IJ’s oral decision as a guide to what lay behind the BIA’s conclusion.” Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir.2000). Ill We review for substantial evidence the BIA’s determination that Shrestha is not eligible for withholding of removal. Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir.2007). The BIA affirmed the IJ’s denial of Shrestha’s withholding of removal claim on the basis of the IJ’s adverse credibility determination, and we review adverse credibility determinations under the substantial evidence standard. Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir.2009). To qualify for withholding of removal, a petitioner must establish a “clear probability” that his “life or freedom would be threatened” if he returned to his homeland on account of “race, religion, nationality, membership in a particular social group, or political opinion.” Ahmed, 504 F.3d at 1199 (citations omitted). Eligibility for withholding of removal can be established by demonstrating past persecution, see id., or by “demonstratfing] ... a subjective fear of persecution in the future ... that ... is objectively reasonable,” Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir.2009). A For applications for asylum, withholding of removal, and CAT relief made on or after May 11, 2005, like Shrestha’s, the REAL ID Act created the following new standards governing adverse credibility determinations: Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements ..., the internal consistency of each such statement, the consistency of such statements with other evidence of record ..., and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor. Pub.L. No. 109-13, Div. B, §§ 101(a)(3), 101(c), 101(d), 119 Stat. 231, 303 (2005) (codified at 8 U.S.C. §§ 1158(b)(l)(B)(iii) (asylum); 1231(b)(3)(C) (adopting the standard in 8 U.S.C. § 1158(b)(1)(B) for withholding of removal);" }, { "docid": "14811948", "title": "", "text": "August 31, 2007 final order of removal. She has not filed a petition for review of the BIA’s denial of her motion to reconsider. II. Jurisdiction and Standard of Review We have jurisdiction to review a final order of the BIA under 8 U.S.C. § 1252. “Ordinarily, Courts of Appeals review decisions of the Board of Immigration Appeals (BIA), and not those of an IJ.” Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002). We have jurisdiction to review the opinion of the IJ only where the BIA has substantially relied on that opinion. See; e.g., Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). In the instant matter, thus, we will review only those portions of the IJ’s opinion that the BIA has specifically adopted. Because petitioner did not appeal the BIA’s denial of her motion for reconsideration, we will not review that decision. We affirm any findings of fact supported by substantial evidence and are “bound by the administrative findings of fact unless a reasonable adjudicator would be compelled to arrive at a contrary conclusion.” Yan Lan Wu v. Ashcroft, 393 F.3d 418, 421 (3d Cir.2005) (citations omitted). Whether Camara has met her burden of showing a well-founded fear of future persecution “is a question of fact, and the agency determination must be upheld if it is supported by ‘substantial evidence’ in the record.” Gomez-Zuluaga v. Attorney General of the United States, 527 F.3d 330, 340 (3d Cir.2008) (citations omitted). In conducting our review, we will treat Camara’s testimony as credible. Under the Act, “if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.” 8 U.S.C. § 1158(b)(l)(B)(iii). Neither the IJ nor the BIA made a determination that Camara was not credible. III. Analysis The Attorney General has the discretion to grant asylum to any alien who “is a refugee within the meaning of section 1101(a)(42)(A)” of the Act. 8 U.S.C. § 1158(b)(1)(A). Section 1101(a)(42)(A) defines a refugee as: any person who is outside any country of such person’s nationality or, in the case of a person" }, { "docid": "23489910", "title": "", "text": "not credible, the IJ concluded that she had not carried her burden of proving either past persecution or a well-founded fear of future persecution. Similarly, she had not proved that it was more likely than not that she would undergo torture if she were removed to Nigeria. Accordingly, the IJ denied the application for asylum, withholding of removal, and protection under the CAT. The petitioner appealed this decision to the BIA. While her appeal was pending, she moved to remand the case to the IJ based upon new evidence: a psychological evaluation purporting to explain the petitioner’s evasive demeanor and inconsistent testimony during the hearings. On January 29, 2004, the BIA summarily affirmed the IJ’s decision and denied the motion to remand. As to the latter, the BIA found that the report was not “new evidence” inasmuch as the underlying information on which it rested was available at the time of the hearings and could have been proffered to the IJ. As an alternate ground, the BIA found the report immaterial, as the IJ’s adverse credibility finding was not based upon demeanor alone. This timely petition for review followed. II. DISCUSSION We treat sequentially the petitioner’s claims that the BIA erred (i) in summarily affirming the denial of her asylum, withholding of removal, and CAT claims, and (ii) in refusing to reopen the proceedings below. A. The Asylum Claim. We turn first to the asylum claim. In order to establish an entitlement to asylum, an alien bears the burden of showing that she is a refugee within the meaning of the immigration laws. See Rodriguez-Ramirez v. Ashcroft, 398 F.Sd 120, 124 (1st Cir.2005); see also 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a). A refugee is a person who cannot or will not return to her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also Rodriguez-Ramirez, 398 F.3d at 124. We review findings of fact in immigration cases, including credibility determinations, under the substantial evidence standard. Da" }, { "docid": "22253957", "title": "", "text": "the BIA concluded that the hearing was fundamentally fair. II. STANDARD OF REVIEW “Where, as here, the BIA adopts the IJ’s decision while adding some of its own reasoning, we review both decisions.” Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir.2011). We review the BIA’s factual findings, including adverse credibility determinations, for substantial evidence. Salaam v. INS, 229 F.3d 1234, 1237-38 (9th Cir.2000). This standard of review is “extremely deferential: ‘administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (quoting 8 U.S.C. § 1252(b)(4)(A)-(B)). “Thus, when a petitioner contends that the IJ’s findings are erroneous, the petitioner ‘must establish that the evidence not only supports that conclusion, but compels it.’” Id. (quoting Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998)). We review the BIA’s determination of purely legal questions de novo. Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir.2009). Claims of due process violations in immigration proceedings are also reviewed de novo. Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir.2003). III. ADVERSE CREDIBILITY DETERMINATION Because Petitioner filed her asylum application after May 11, 2005, the REAL ID Act governs the determination of her credibility. 8 U.S.C. § 1158(b)(l)(B)(iii); see also Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir.2010). Specifically, this standard governing adverse credibility determinations provides: Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s" }, { "docid": "19975343", "title": "", "text": "CALABRESI, Circuit Judge: Petitioner Mamadou Aliou Diallo, a native and citizen of Guinea, seeks review of a July 25, 2007 order of the Board of Immigration Appeals (“BIA”) affirming the November 14, 2005 decision of Immigration Judge (“IJ”) William Van Wyke denying Petioner’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Diallo’s claims were based on alleged political persecution, including multiple arrests and torture, that he suffered as a result of his affiliation with the Rally of the People of Guinea Party (“RPG”), a political party that opposes the government of President Lansana Conté. The IJ found Petitioner’s testimony non-credible. On appeal to the BIA, Diallo argued that he was credible, particularly emphasizing that his testimony was consistent, responsive, and sufficiently detailed. He further argued that the State Department Country Reports (“Country Reports”) corroborated his claims, and that the IJ overemphasized small disparities between Diallo’s testimony and what was, or was not, included in those Country Reports. The BIA summarily adopted the IJ’s decision without rejecting any of the IJ’s reasoning nor specifying which of the IJ’s particular findings supported its decision. I. Standard of Review Where, as here, the BIA summarily affirms an IJ’s adverse credibility finding, we review the factual and legal findings contained in the IJ’s opinion, including those aspects not discussed by the BIA. See Yun-Zui Guam, v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005) (per curiam). We review the IJ’s adverse credibility finding under the substantial evidence standard, which requires that the decision be supported by “reasonable, substantial and probative evidence in the record.” Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 116 (2d Cir.2007) (internal quotation marks omitted). While this standard is highly deferential to the IJ, we must determine whether the IJ has provided “specific, cogent” reasons for the adverse credibility finding and whether those reasons bear a legitimate nexus to the finding. Id. at 117. If the testimony provided is “generally consistent, rational, and believable, the presence of some inconsistent testimony need not necessarily be fatal to a petitioner’s claims if the disparities are" }, { "docid": "22907744", "title": "", "text": "asylum and withholding of removal on the basis of imputed political opinion. The IJ denied Zhi’s application on August 27, 2008. In her oral decision, she explained that Zhi did not present credible evidence establishing a well-founded fear of future persecution. Although she relied primarily on the inconsistency concerning the year Zhi’s bookstore closed, she explained that the discrepancy in dates was particularly significant in light of the timing of Zhi’s “very short-lived marriage to a U.S. citizen,” which she interpreted as an “attempt[ ] to remain in the United States.” The IJ also based her decision on Zhi’s failure to submit reasonably available corroborating evidence. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision on April 23, 2010. Zhi timely appealed. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). II. Where, as here, the BIA adopts the IJ’s decision and also contributes its own reasoning to the analysis, we review both decisions. Nuru v. Gonzales, 404 F.3d 1207,1215 (9th Cir.2005). We review factual findings, including adverse credibility decisions, under the deferential substantial evidence standard. Mendozar-Pablo v. Holder, 667 F.3d 1308, 1312 (9th Cir.2012). We may reverse factual determinations only when “any reasonable adjudicator would be compelled to conclude to the contrary” based on the evidence in the record. 8 U.S.C. § 1252(b)(4)(B). We review de novo questions of law and mixed questions of law and fact. Mendozar-Pablo, 667 F.3d at 1312. A. An asylum applicant bears the burden of establishing his claim through credible evidence. See 8 U.S.C. § 1158(b)(l)(B)(i), (iii). For applications filed after May 11, 2005, such as Zhi’s, the credibility standards set forth in the REAL ID Act apply. See Pub.L. 109-13, Div. B, Title I, § 101(h)(2), 119 Stat. 231 (May 11, 2005). Although an IJ may base her adverse credibility determination on “any ... relevant factor,” she must do so in light of “the totality of the circumstances.” 8 U.S.C. § 1158(b)(l)(B)(ni); Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir.2010). In other words, the IJ “cannot selectively examine evidence in determining credibility, but rather must present a reasoned analysis of the" }, { "docid": "22119108", "title": "", "text": "83. Because the IJ concluded that Kaita had not met her burden of proof on the asylum claim, she necessarily decided that Kaita had not met her burden of proof on the withholding of removal claim and the CAT claim. The IJ stated that Kaita had not, in light of the entire record, “presented a consistent, believable, and sufficiently detailed claim to support a grant of political asylum.... ” A.R. at 84. D. BIA Decision The BIA adopted and affirmed the IJ’s decision in a written decision that included several additions. It stated that Kaita failed to meet the one-year filing deadline for filing a petition for asylum because there had been multiple discrepancies with respect to the date of Kaita’s arrival in the United States. The BIA also stated that the IJ’s adverse credibility finding was sufficiently supported by the record because of the lack of details in Kaita’s testimony and her failure to remember precise dates. The BIA did not find that the IJ’s comments and interruptions or Kaita’s lack of education sufficiently explained the discrepancies in the record. Kaita timely filed her petition for review. II. When the BIA’s decision substantially relies upon the decision of the IJ, this court has jurisdiction to consider the IJ’s decision, as well as the BIA’s decision. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). Because the BIA adopted the IJ’s adverse credibility determination and added to that conclusion, we consider both the IJ’s decision and that of the BIA. This court reviews adverse credibility determinations under the substantial evidence standard. Id. at 243. “Under [that] standard, the [BIA’s] adverse credibility determination must be upheld on review unless ‘any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (quoting 8 U.S.C. § 1252(b)(4)(B)). Because Kaita’s petition was filed before May 11, 2005, the effective date of the REAL ID Act, the applicable law was that minor inconsistencies did not support an adverse credibility finding. Id. It was clear then that discrepancies in a petitioner’s testimony must involve the “heart" }, { "docid": "22437006", "title": "", "text": "by the Indonesian government or any of its agents on account of his religious beliefs. Consistent with these findings, the IJ denied the cross-application for asylum, withholding of removal, and protection under CAT; ordered the petitioner removed; and designated Indonesia as the country of removal. The BIA upheld the IJ’s decision, concluding that the petitioner had failed to establish past persecution, a well-founded fear of future persecution, or a sufficient likelihood that he would be subjected to torture upon his return to Indonesia. This timely petition for judicial review followed. II. Discussion We start—and end'—with the denial of the petitioner’s application for asylum. In reviewing the BIA’s denial of an asylum application, we examine its findings of fact, including its credibility determinations, to ascertain whether those findings are supported by substantial evidence in the record. See Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005); Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005). Under this highly deferential standard, we must accept the BIA’s findings so long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Absent an error of law, we can overrule the BIA’s ensuing decision only if the evidence “points unerringly in the opposite direction.” Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004). The petitioner bears the burden of establishing that he qualifies for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i); see also Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.2004). To qualify as a refugee within the meaning of the Immigration and Nationality Act, an asylum seeker must show that he cannot return to his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Upon a satisfactory showing of past persecution, a rebuttable presumption arises that a petitioner’s fear of future persecution is well-founded. Makhoul, 387 F.3d at 79. The Immigration and Nationality Act provides no precise definition of “persecution.” The" }, { "docid": "22119109", "title": "", "text": "explained the discrepancies in the record. Kaita timely filed her petition for review. II. When the BIA’s decision substantially relies upon the decision of the IJ, this court has jurisdiction to consider the IJ’s decision, as well as the BIA’s decision. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). Because the BIA adopted the IJ’s adverse credibility determination and added to that conclusion, we consider both the IJ’s decision and that of the BIA. This court reviews adverse credibility determinations under the substantial evidence standard. Id. at 243. “Under [that] standard, the [BIA’s] adverse credibility determination must be upheld on review unless ‘any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (quoting 8 U.S.C. § 1252(b)(4)(B)). Because Kaita’s petition was filed before May 11, 2005, the effective date of the REAL ID Act, the applicable law was that minor inconsistencies did not support an adverse credibility finding. Id. It was clear then that discrepancies in a petitioner’s testimony must involve the “heart of the asylum claim” in order to support an adverse credibility finding. Id. (citation and internal quotations omitted). We have held that “[a]dverse credibility determinations based on speculation or conjecture, rather than on evidence in the record, are reversible.” Id. (citation omitted). III. We turn now to examine Kaita’s claims. A. Asylum As a threshold matter, an alien seeking asylum must prove by clear and convincing evidence that she filed her application for asylum within one year of her arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). A court may consider an untimely asylum application only if the alien can demonstrate changed circumstances that affect her eligibility for asylum or extraordinary circumstances why she did not file the application within one year. Id. § 1158(a)(2)(D). However, “[n]o court shall have jurisdiction to review any determination of the Attorney General under [§ 1158(a)(2) ].” Id. § 1158(a)(3). Both the IJ and the BIA made the determination under § 1158(a)(3) that Kai-ta failed to prove by clear and convincing evidence that she had filed her asylum" }, { "docid": "22561174", "title": "", "text": "F.3d 250, 253 (2d Cir.2008). Consequently, when we refer to the “U’s decision” or the “U’s reasoning,” we refer to the decision of the IJ as modified and affirmed by the BIA. An applicant for asylum or withholding of removal bears the burden of proving that she is a refugee within the meaning of 8 U.S.C. § 1101(a)(42)(A) and is therefore eligible for asylum. 8 U.S.C. § 1158(b)(l)(B)(i). We review the BIA’s determination whether an alien has established eligibility for asylum under the substantial-evidence standard. Alibasic v. Mukasey, 547 F.3d 78, 84-85 (2d Cir.2008). Under this standard, a “determination that [a petitioner] was not eligible for asylum must be upheld if supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal quotation marks omitted); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 334 n. 13 (2d Cir.2006) (explaining origins and continued application of substantial-evidence standard). The REAL ID Act of 2005 (“REAL ID Act”), Pub.L. No. 109-13, 119 Stat. 231, 302, which was in effect when Chen filed her application, requires reviewing courts to apply an even more deferential standard of review with respect to an U’s factual determinations. Thus, an U’s findings of fact “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B), and his determination that an applicant has failed to meet her burden of proof is likewise “conclusive unless manifestly contrary to the law,” id. § 1252(b)(4)(C). In addition, the REAL ID Act set forth standards of credibility and corroboration relevant to the determination of whether an applicant carries her burden of proof: The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact" }, { "docid": "22047986", "title": "", "text": "the IJ’s decision directly while also considering the Board’s additional analysis. Gilaj v. Gonzales, 408 F.3d 275, 282-83 (6th Cir.2005). The IJ denied relief and the BIA upheld the decision based on the IJ’s finding that El-Moussa did not testify credibly. We review the IJ’s credibility determination under the deferential “substantial evidence” standard. Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir.2004). An administrative finding of fact, such as the adverse credibility determination here, is “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” See 8 U.S.C. § 1252(b)(4)(A), (B). Moreover, “a decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law.” Id. § 1252(b)(4)(C). While the IJ’s adverse credibility determination can be questioned in some respects, the substantial evidence supporting the IJ’s finding calls for denial of this petition. This case appears to be one of the first in which the stricter review provided by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 302, applies to credibility determinations. The credibility standards of the Act apply to applications for asylum, withholding of removal, or other relief from removal filed on or after May 11, 2005. Id. at § 101(h)(2), 119 Stat. at 305. Under the previous law of this circuit, an IJ could base an adverse credibility determination only on “issues that [went] to the heart of the applicant’s claim” and not on “irrelevant inconsistencies” or inconsistencies that could not be viewed “as attempts by the applicant to enhance his claims of persecution.” Sylla v. I.N.S., 388 F.3d 924, 926 (6th Cir.2004) (quotations and citations omitted). Under the REAL ID Act, credibility determinations are based on the “totality of the circumstances” and take into account “all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii). These factors include: the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made)," }, { "docid": "22386927", "title": "", "text": "a grant of asylum in the absence of a well-founded fear of future persecution (see Matter of Chen, 20 I & N Dec. 16 (BIA 1989)); nor do we find there to be a reasonable possibility that the respondent may suffer other serious harm upon removal to Sierra Leone. See 8 C.F.R. §§ 1208.13(b)(1)(iii)(A), (B). AR 3. The BIA did not review the IJ’s adverse credibility findings. It stated: “We need not reach the issue whether the adverse credibility determination was correct.” Id. The BIA concluded that Sowe had failed to establish his eligibility for asylum and withholding of removal. It also determined that Sowe had failed to demonstrate that if removed to Sierra Leone, he would more likely than not be tortured, as required for relief under CAT. Sowe’s timely petition for review was filed on June 7, 2006. Ill “The BIA’s decision that an alien has not established eligibility for asylum is reviewed for substantial evidence.” Hanna v. Keisler, 506 F.3d 933, 937 (9th Cir.2007). “We review the IJ’s factual findings regarding changed country conditions for substantial evidence.” Smolniakova v. Gonzales, 422 F.3d 1037, 1052 (9th Cir.2005). We also review for substantial evidence the BIA’s determination that a petitioner has not qualified for withholding of removal, and that a petitioner is ineligible for CAT relief. Kaiser v. Ashcroft, 390 F.3d 653, 657 (9th Cir.2004); Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003). Sowe’s petition for review challenges the decisions of the IJ and the BIA on several grounds. A Sowe contends that both the IJ and the BIA erred in denying his asylum claim on the ground that changed country conditions made it safe for him to return to Sierra Leone. Unless there is reason to grant discretionary relief pursuant to 8 C.F.R. § 1208.13(b)(l)(iii), an asylum application will be denied if “[t]here has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant’s country of nationality ... on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. §" }, { "docid": "21142494", "title": "", "text": "requests for withholding of removal and protection under the CAT, based largely on his finding that Melhem’s testimony was not credible. In a November 13, 2006 opinion, the BIA affirmed the IJ’s determination that Melhem’s asylum application was time-barred. It also affirmed the IJ’s adverse credibility finding, noting specific inconsistencies and omissions catalogued by the IJ, and agreed that the lack of credible testimony meant that Melhem had not met his burden of proof regarding his eligibility for withholding of removal or for protection under the CAT. Melhem timely petitioned this court for review. II. Melhem makes several claims on his petition for review. First, he argues that the IJ erred in his adverse credibility finding. Second, he asserts that his asylum request should have been granted. Third, he argues that the IJ wrongly denied him withholding of removal and protection under the CAT. The BIA rejected each of these claims, and so do we. As a preliminary matter, we lack jurisdiction over Melhem’s asylum application because the IJ found his application to be time-barred and the BIA affirmed that determination. 8 U.S.C. § 1158(a)(8); see also Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir.2005). Melhem’s attempt to cloak his factual disagreement with the BIA in the garb of due process to avoid this jurisdictional bar is unavailing. See Pan v. Gonzales, 489 F.3d 80, 84 (1st Cir.2007). We do have jurisdiction to review the BIA’s denial of relief under the CAT and withholding of removal. We review the BIA’s decision under the deferential substantial evidence standard. Jean v. Gonzales, 461 F.3d 87, 90 (1st Cir.2006); Long v. Gonzales, 422 F.3d 37, 40 (1st Cir.2005). That is, we accept the BIA’s decision “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Long, 422 F.3d at 40. We agree with the BIA that the IJ’s credibility determination is sufficiently supported by the record. The BIA described specific inconsistencies and omissions in Melhem’s account on which the IJ relied when finding Melhem’s testimony to be incredible. Melhem claimed persecution based on his" }, { "docid": "23021539", "title": "", "text": "not a credible witness, (2) he had not established past persecution in Algeria necessary for entitlement to asylum relief, (3) he had failed to show that he had a well-founded fear of persecution should he be removed to Algeria, (4) he could not meet the higher burden for withholding of removal since he had not met his burden for eligibility for asylum, and (5) he had not met his burden of demonstrating that it is more likely than not he would be subjected to torture if he returned to Algeria, as required for relief under the CAT. On appeal, the BIA generally adopted the IJ’s findings of fact and conclusions of law, noting the guidelines for determining credibility as set forth in the REAL ID Act of 2005, and finding no clear error in the IJ’s adverse credibility determination. The BIA agreed that, even accepting as credible Allalen’s testimony, Allalen had failed to show that the incidents he experienced equated to past persecution, or that he had a well-founded fear of persecution based on those incidents. The BIA rejected Allalen’s argument that the IJ’s questioning, tone, or comments denied him a fair hearing and due process. Lastly, the BIA affirmed the denial of withholding of removal and relief under the CAT. Allalen petitioned this court for review of the denial of asylum. He has failed to challenge, on appeal, the IJ’s and the BIA’s determinations that he was not entitled to withholding of removal or relief under the CAT. Therefore, these grounds for relief have been abandoned and we will not address them. Patel v. Gonzales, 470 F.3d 216, 219 (6th Cir.2006). B. Jurisdiction and Standard of Review We have jurisdiction over the petitioner’s request for asylum pursuant to 8 U.S.C. § 1252(a)(1). This court has jurisdiction to review the final decision of the BIA “affirming the IJ’s denial of asylum.” Singh v. Ashcroft, 398 F.3d 396, 400 (6th Cir.2005). Generally, this court reviews the BIA’s decision to determine whether it is supported by substantial evidence. Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir.2005). Where the Board adopts the" }, { "docid": "22794948", "title": "", "text": "facts and make a decision on the merits of the alien’s application. Consequently, the BIA must be allowed to consider the effect of every witness’s testimony on the claims made by each applicant currently before the BIA. Here, the IJ made an adverse credibility determination as to both Prak and Kin in part because there were numerous inconsistencies among their testimony, with the testimony of Senator Thach, and with the documentary evidence submitted by Petitioners. In reviewing the IJ’s determination, the BIA specifically noted two inconsistencies: (1) Kin’s testimony that Prak was at home when he was arrested and Prak’s testimony that she had already been arrested at that time, meaning she would have been in prison when Kin was arrested; and (2) Senator Thach’s testimony that he never petitioned a Cambodian court for either Petitioner’s release and Kin’s written declaration that Senator Thach filed a complaint with the Supreme Court of Cambodia for Kin’s release. It was proper for the BIA to consider these inconsistencies when making a credibility determination as to both Kin and Prak. These two specific findings constitute substantial evidence in support of the BIA’s adverse credibility determinations. The inconsistencies went to the truthfulness of the circumstances surrounding Petitioners’ arrests and the intervention needed to obtain their releases from prison. Thus, these inconsistencies go to the heart of each Petitioner’s claim for asylum. See Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir.2006) (“An inconsistency goes to the heart of a claim if it concerns events central to petitioner’s version of why he was persecuted and fled.”). IV We hold that the BIA’s reasons for finding Prak and Kin not credible on consolidated evidence are supported by substantial evidence as to each Petitioner. Therefore they cannot satisfy their burden of showing entitlement to the relief they sought. Petition for review DENIED. . The REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, amended the Immigration and Nationality Act § 242, 8 U.S.C. § 1158. For applications filed after 2005, the finder of fact does not have to consider whether an inconsistency goes to the" }, { "docid": "23021540", "title": "", "text": "incidents. The BIA rejected Allalen’s argument that the IJ’s questioning, tone, or comments denied him a fair hearing and due process. Lastly, the BIA affirmed the denial of withholding of removal and relief under the CAT. Allalen petitioned this court for review of the denial of asylum. He has failed to challenge, on appeal, the IJ’s and the BIA’s determinations that he was not entitled to withholding of removal or relief under the CAT. Therefore, these grounds for relief have been abandoned and we will not address them. Patel v. Gonzales, 470 F.3d 216, 219 (6th Cir.2006). B. Jurisdiction and Standard of Review We have jurisdiction over the petitioner’s request for asylum pursuant to 8 U.S.C. § 1252(a)(1). This court has jurisdiction to review the final decision of the BIA “affirming the IJ’s denial of asylum.” Singh v. Ashcroft, 398 F.3d 396, 400 (6th Cir.2005). Generally, this court reviews the BIA’s decision to determine whether it is supported by substantial evidence. Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir.2005). Where the Board adopts the IJ’s decision and supplements that decision with its own comments, as in this case, we review both the BIA’s and the IJ’s opinions. See Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir.2005) (per curiam). An IJ’s credibility determinations are considered findings of fact and are reviewed under the substantial evidence standard. Sylla v. INS, 388 F.3d 924, 925 (6th Cir.2004). We will reverse a credibility determination only if any reasonable adjudicator would be compelled to conclude to the contrary. Pergega v. Gonzales, 417 F.3d 623, 627 (6th Cir.2005). C. Analysis In support of his petition for review, Allalen argues that the IJ’s adverse credibility finding was contrary to the REAL ID Act, that the IJ “incorrectly applied the well-founded fear standard” when he determined that Allalen was not entitled to asylum relief, and that his due process rights were violated when the IJ allegedly treated him in an “antagonistic, derogatory manner” during the course of the hearing. Under the REAL ID Act, credibility determinations are based on the “totality of the circumstances” and should" }, { "docid": "21591837", "title": "", "text": "Moreover, the BIA held that even if Rashad’s asylum application were timely filed and his testimony before the IJ deemed credible, his appeal would be denied because he failed to sustain the burden of proof applicable to asylum petitions as well as the more stringent burden applicable to claims for withholding of removal or protection under the Convention Against Torture. Specifically, the BIA held that the record did not show that he would be mistreated by the government of Pakistan on account of a protected ground. Additionally, the BIA concluded that Rashad failed to proffer an adequate torture claim. The BIA dismissed Rashad’s appeal, and the instant petition for review followed. STANDARD OF REVIEW When this Court has jurisdiction to review, we uphold determinations by the BIA or the IJ if “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal quotation marks omitted). This deferential standard is applied to findings of fact including credibility determinations. Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir.2008). Likewise, the “substantial evidence” standard applies to claims for asylum, withholding of removal, and relief under the Convention Against Torture. Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir.2004). Under this standard, “[w]e will reverse only if the petitioner’s evidence would compel a reasonable factfinder to conclude that relief was warranted.” Id.; see also 8 U.S.C. § 1252(b)(4)(B)(“adminis-trative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”). Usually, this Court confines its review to the BIA’s order that is being challenged by the petitioner. Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir.2005). If the BIA has simply adopted or deferred to the IJ’s reasoning, the Court must look to that decision instead, “treating the findings and conclusion of the IJ as the Board’s own opinion.” Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir.2003). However, when as here, the BIA adopts the decision of the IJ, and provides some analysis of its own, the Court reviews both" }, { "docid": "22429552", "title": "", "text": "Gong, concluding these inconsistencies supported a finding of knowing fabrication. Finally, the BIA found that Liu was given adequate opportunities to address these grounds. The BIA thus affirmed its previous frivolousness finding. The present petition challenges both this finding and the earlier denial of Liu’s asylum and withholding of removal claims. We have jurisdiction under 8 U.S.C. § 1252(a)(1). STANDARD OF REVIEW “When the BIA conducts its own review of the evidence and law rather than adopting the IJ’s decision, our review ‘is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.’” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir.2010) (quoting Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)). Because Liu’s application for relief was filed before May 11, 2005, pre-REAL ID Act standards apply. See Kaur v. Gonzales, 418 F.3d 1061, 1064 n. 1 (9th Cir.2005). We review credibility findings for substantial evidence. See Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996). Whether the IJ complied with the BIA’s four procedural requirements for a frivolousness finding is a question of law we review de novo. See Khadka v. Holder, 618 F.3d 996, 1002 (9th Cir.2010). DISCUSSION Liu’s petition challenges the BIA’s denial of her asylum and withholding of removal claims and its finding that she filed a frivolous asylum application. We deny her petition as to asylum and withholding of removal because the IJ’s adverse credibility determination, as adopted by the BIA, was supported by substantial evidence. We grant her petition as to the frivolousness finding, however. Although the grounds for the adverse credibility determination overlap with those the IJ and BIA cited in support of the frivolousness finding, “a finding of frivolousness does not flow automatically from an adverse credibility determination.” Id. The heightened substantive and procedural requirements for a frivolousness finding make that inquiry distinct, and we conclude those heightened requirements were not met here. We reject Liu’s final claim that the IJ violated her due process rights. I. Credibility An asylum applicant bears the burden of establishing her claim through credible evidence. See 8 U.S.C." }, { "docid": "22073643", "title": "", "text": "the BIA, this Court lacks jurisdiction to consider his CAT claim. See 8 U.S.C. § 1252(d)(1); Foster v. INS, 376 F.3d 75, 78 (2d Cir.2004) (holding that claim was not exhausted where the petitioner's \"generalized claims were made to the IJ and not the BIA”); Cervantes-Ascencio v. INS, 326 F.3d 83, 87 (2d Cir.2003) (holding that the exhaustion requirements of 8 U.S.C. § 1252(d)(1) require a petitioner \"to raise issues to the BIA in order to preserve them for judicial review”). Likewise, because petitioner has not addressed his withholding-of-removal claim before this Court, he has waived any challenge to the IJ's denial of that claim. See Yueging Zhang v. Gonzales, 426 F.3d 540, 542 n. 1, 545 n. 7 (2d Cir.2005). . The statute governing appellate review of asylum cases now states that [c]onsidering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness’s account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal. 8 U.S.C. § 1158(b)(l)(B)(iii). We note, however, that this language applies only to asylum applications filed on or after May 11, 2005, the effective date of the REAL ID Act of 2005 (\"the Act”), Pub.L. No. 109-13, 119 Stat. 231. See Title I, § 101(a)(3) of the Act, 119 Stat. 231, 303 (amending 8 U.S.C. § 1158). Accordingly, although the statutory provision stating" }, { "docid": "22629213", "title": "", "text": "IJ held a consolidated hearing on April 23, 2001. The IJ issued an oral decision denying Eduard’s and Pakkung’s applications for asylum, and denying withholding of removal pursuant to INA § 241(b)(3)(B). 8 C.F.R. § 208.16(b) (2004). The IJ reasoned that neither applicant had established past persecution or a well-founded fear of future persecution. The IJ did not discuss whether removal could be withheld under the CAT. Id. § 208.16(c). A member of the BIA, acting for the board, affirmed the IJ’s decision without opinion. Eduard and Pakkung timely filed this appeal. DISCUSSION Because the BIA summarily affirmed the opinion of the IJ, we review the factual findings and legal conclusions of the IJ. See Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir.2003) (providing that the IJ’s decision is the final agency decision if the BIA summarily affirms). We must uphold the IJ’s factual findings unless we find that they are not supported by substantial evidence in the record. Faddoul v. INS, 37 F.3d 185, 188 (5th Cir.1994). Substantial evidence is lacking only if the petitioner establishes that the record evidence was “so compelling that no reasonable fact finder could fail to find” the petitioner statutorily eligible for asylum or withholding of removal. INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.2001). We review conclusions of law de novo. Mikhael v. INS, 115 F.3d 299, 305 (5th Cir.1997); Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.1996). Consequently, even though we are required to review the factual findings of the IJ for substantial evidence, we nevertheless may reverse an IJ’s decision if it was decided on the basis of an erroneous application of the law. Mikhael, 115 F.3d at 305. Petitioners contend that the IJ erred by (1) denying their applications for asylum and (2) failing to address their claims for relief under the CAT. I. Whether the IJ erred by denying Petitioners’ applications for asylum. Petitioners first contend that the IJ erred by denying their applications for asylum. The Attorney General is authorized to" } ]

[ { "docid": "20178228", "title": "", "text": "RIFKIND, District Judge. Motion by debtor to reopen proceedings under Chapter XI of the Bankruptcy Act, 11 U.S.C.A. § 701 et seq., and to appoint a referee for the purpose of distributing a fund to the persons legally entitled to share therein. The debtor filed its petition for an arrangement under Section 322 of the Bankruptcy Act on December 7, 1940. In due course an arrangement was confirmed. In substance the arrangement provided for a scaling down of the unsecured debt and payment of the reduced claims in periodic installments to a “distributor” appointed by the court. The debtor was to continue the operation of his business under various restrictions as to borrowing, purchasing on credit, and mantaining inventory levels. The arrangement further specified that “Upon a default continuing for five days in the payment of any installment * * * title to all of the Debtor’s assets will forthwith vest in Thadeus B. Kleckner, the appointee of the Creditors Committee for the purposes described in the Plan.” A default occurred. The debtor moved to be relieved therefrom. The referee held that he was powerless to grant such relief. On July 25, 1941, the debtor surrendered all his assets to Kleckner. Kleckner has not distributed the proceeds of the debtor’s estate for the reason that he has been uncertain of the relative rights of creditors who' proved their claims and creditors who advanced credit to the debtor after confirmation of the arrangement. The debtor claims that he has been harassed by his creditors; that he is helpless since all his assets are in the hands of Kleckner; that the fund is sufficient to pay all post-confirmation claims. He petitions the court to reopen the proceedings with a view to the distribution of the fund held by Kleckner. Kleckner, who is both the “distributor” and the “appointee” under the arrangement, challenges the power of the court to grant the relief. I am of the opinion that the court is without jurisdiction. Section 357(7): “An arrangement within the meaning of this chapter may include —* * * (7) provisions for retention of" } ]

[ { "docid": "7123036", "title": "", "text": "performed .... ” Moreover, Section 368 of the Act stated that the “court shall retain jurisdiction, if so provided in the arrangement.” These two sections combined to confer broad post-confirmation jurisdiction upon the bankruptcy court if provided in the Chapter XI plan. The debtor’s confirmed plan in this case did not authorize such broad jurisdiction; the court’s jurisdiction was limited to determining the allowance of claims and objections to claims, the adjudication of pending applications for the rejection of executory contracts and the determination of controversies pending on the date of confirmation. The landlord’s claim for post-confirmation rent does not fall into any of these categories. Absent an express post-confirmation authorization, the bankruptcy court’s jurisdiction after confirmation of a Chapter XI case is governed by Section 369 of the former Act which provided: “Sec. 369. The court shall in any event retain jurisdiction until the final allowance or disallowance of all claims affected by the arrangement which have been filed with the limitations as to time and amount prescribed by section 355 but have not been allowed or disallowed prior to confirmation.” The landlord’s claim for the nonpayment of rent for the months of July through October, 1982, is not bottomed on a claim affected by the plan of arrangement that was confirmed on April 4, 1981. Thus, this case does not involve the scope of the court’s post-confirmation jurisdiction vis-a-vis pending claims in a Chapter XI case where the plan did not provide for the retention of jurisdiction, as explored in Law Research Service, Inc. v. Crook, 524 F.2d 301 (2d Cir.1975) and Law Research Service, Inc. v. Hemba, 384 F.Supp. 729 (S.D.N.Y.1974). The debtor never applied to this court, pursuant to Section 313 of the Act, for authority to assume or reject either the original lease or the subsequently proposed lease that the debtor refused to recognize. Moreover, the debtor’s plan of arrangement did not provide for the assumption or rejection of any executory contract, as permitted under Section 357(2). Accordingly, there was no pending application for the rejection of an executory contract that could trigger the provision" }, { "docid": "11762306", "title": "", "text": "agent, from the debtor in possession, or from, the debtor individually any post-petition interest or penalties on taxes embodied in the amended tax claim filed in this proceeding, that is, interest or penalties alleged to have been incurred subsequent to the filing of the petition on September 30, 1965. The United States has petitioned this court to review this order of June 25,1968. The contention of the United States is that the debtor is indebted to it in the sum of $2,934.60, which represents the post-petition interest which accrued from the date of filing the petition to the date the United States was paid for its claim. The United States contends that this debt survives the arrangement proceedings and is a personal debt of the debtor, though admittedly not collectible from the liquidating agent. The questions presented to this court are (1) whether the Referee had jurisdiction to issue the order of June 25, and (2) whether the debtor is released by the Chapter XI Arrangement from personal liability for the post-petition interest. The power of a bankruptcy court to protect its decrees is clear. Evans v. Dearborn Mach. Movers Co., 6 Cir., 200 F.2d 125; National Foundry Co. of N. Y. v. Director of Internal Revenue, 2 Cir., 229 F.2d 149. National Foundry is squarely in point. There, in arrangement proceedings, the Second Circuit specifically held that the bankruptcy court had jurisdiction to order the Director of Internal Revenue to take no steps for the attempted assessment or collection of post-petition interest. The law is clear that tax claims in an arrangement proceeding bear interest only to the date of filing of the petition. United States v. General Engineering & Mfg. Co., 8 Cir., 188 F.2d 80, affirmed 342 U.S. 912, 72 S.Ct. 358, 96 L.Ed. 682. If the claim is paid in full according to the arrangement plan, the debtor incurs no personal liability for interest which would accrue from the date of filing the petition to the date of payment in full. Sword Line v. Industrial Commissioner of N. Y., 2 Cir., 212 F.2d 865, cert. denied" }, { "docid": "7460788", "title": "", "text": "plan, a court-imposed estoppel against collection of such claim will not frustrate the will of Congress. Inasmuch as Congress has prohibited the issuance of an injunction against the collection of taxes, however, the remedy in such a case must be limited to a declaration of tax liability. Accordingly, this case will be remanded to the district court which, in turn, shall remand the matter to the bankruptcy court with instructions to determine the portion of the sum claimed by the IRS, if any, which comprises pre-petition interest. Insofar as any portion of the claim sought consists of pre-petition interest, the IRS will be equitably estopped from collection activities. The IRS will, however, be permitted to collect pre-petition penalties and post-petition interest from the arranged debtors. The portion of the district court order upholding the issuance of the injunction by the bankruptcy court will be reversed. . In In re Jaylaw, 621 F.2d 524 (2d Cir. 1980), the bankruptcy court reopened a Chapter XI proceeding solely to determine the validity of claims against the rehabilitated debtor for prepetition penalties and post-petition interest that had been brought against the debtor after consummation of a plan of arrangement. The Court of Appeals for the Second Circuit, after noting that a jurisdictional objection had been raised and rejected below, proceeded to dispose of the case on substantive grounds. Id. at 525-26. . Jurisdiction in the bankruptcy courts over debtor liability is also supported by an analysis of the consequences that might occur if the bankruptcy court did not possess such authority. The personal liability of a debtor can be a critical factor in the determination by a bankruptcy court whether it is appropriate to confirm a Chapter XI plan of arrangement. The absence of bankruptcy court jurisdiction to ascertain debtor liability could result in the confirmation of a plan of arrangement that the court might have deemed infeasible had it been able to take into account the future liability of the debtor. Such a result would be at odds with the intent of Congress in conferring bankruptcy court jurisdiction to effectuate debtor rehabilitation under" }, { "docid": "16772631", "title": "", "text": "OPINION SAMUEL J. STEINER, Chief Judge. ISSUE & DISCUSSION The United States of America (Internal Revenue Service) has objected to the debtors’ plan of reorganization. The issue is whether the discharge of an individual Chapter 11 debtor covers interest and penalties on prepetition priority tax claims that accrue post-petition and up to the date of confirmation. The debtors’ plan provides for full payment of prepetition priority taxes, interest, and penalties. The plan does not provide for payment of post-petition, preconfirmation interest or penalties on the prepetition tax. The debtors take the position that these accruals are discharged by confirmation of the plan. The IRS contends that post-petition interest and penalties survive the discharge and can be collected from the debtors. The discharge of a Chapter 11 debtor is governed by § 1141(d) of the Bankruptcy Code. Section 1141(d) provides in relevant part as follows: (1) Except as otherwise provided in this subsection, in the plan, or in the order confirming the plan, the confirmation of a plan— (A) discharges the debtor from any debt that arose before the date of such confirmation ... (2) The confirmation of a plan does not discharge an individual debtor from any debt excepted from discharge under section 523 of this title. Section 523(a) excepts from discharge any debt “for a tax ... of the kind and for the periods specified in section ... 507(a)(7) of this title, whether or not a claim for such tax was filed or allowed.” Section 523(a)(7) provides that tax penalties are nondis-chargeable. The IRS maintains that the debtors’ non-dischargeable tax liability includes post-petition interest and penalties, relying on Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964), and its progeny. Bruning was a Chapter VII case arising under the Bankruptcy Act. The IRS filed a claim and had received a small distribution from the estate. After the bankrupt received his discharge, the IRS proceeded to collect the remainder of the unpaid tax debt, including interest that had accrued post-petition. The bankrupt asserted that the rule disallowing claims against the estate for post-petition interest also" }, { "docid": "7210477", "title": "", "text": "CLARIE, District Judge. The United States of America has petitioned the Court for a review of an order entered by the Referee in Bankruptcy. The order complained of disallowed the claim of the United States for a penalty assessed against the bankrupt. The referee disallowed the Government’s claim concluding that the bankrupt’s liability was (1) a penalty excludable under § 57, sub. j of the Bankruptcy Act, 11 U.S.C.A. § 93, sub. j, and, (2) was not a provable debt existing at the date of adjudication, January 25, 1961, since the penalty was not assessed until July 28, 1961. The petition for review was brought under § 39, sub. c of the Bankruptcy Act, 11 U.S. C.A. § 67, sub. c. Advance Caterers, Inc., a Connecticut corporation, filed a petition for arrangement under Chapter XI of the Bankruptcy Act on August 31, 1960. Michael Serignese, the bankrupt here, was an officer, stockholder, and manager of the corporation, and under the plan of arrangement, as debtor in possession, the business continued to operate under his supervision. During this period, withholding and social security taxes accrued against Advance Caterers, Inc., for the last two quarters of 1960 and the first quarter of 1961. These taxes were never paid. At the oral argument before this Court, the Government’s attorney stated it was. only claiming the taxes for the third and fourth quarters of 1960. The Government did not claim and therefore this-Court will not consider 'the amount of taxes not paid by Advance Caterers, Inc., for the first 25 days of 1961 as being apart of this case. Only the claims regarding the last two quarters of 1960 are-in issue. Michael Serignese, individually, was adjudicated a bankrupt on January 25, 1961. The Director of Internal Revenue, acting under 26 U.S.C.A. § 6672, assessed a penalty against him on July\" 28, 1961. This penalty equaled the taxes-which Advance Caterers, Inc. had failed’ to pay for the last two quarters of 1960' during the period in which he supervised its activities. The assessment also-included the amount of the unpaid taxes for the first quarter of" }, { "docid": "7460777", "title": "", "text": "their detriment upon the finality of the Proof of Claim.” The IRS contends that the district court erred in applying the doctrine of equitable estoppel, and that the judgment of the district court, at least in this respect, should be reversed. It is well-established that obligations for pre-petition penalties and post-petition interest that accrue on a tax debt comprise personal liabilities of the debtor, and survive payment of the principal debt pursuant to an arrangement. In Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964), the Supreme Court, confirming that post-petition interest on a nondischargeable tax debt was not allowable against a bankruptcy estate, held that such claims could be asserted against the discharged bankrupt. The Court reasoned that the policies underlying the prohibition against the collection of post-petition interest claims against a bankruptcy estate-avoidance of diminution of the amount payable to competing creditors and administrative convenience-are inapplicable where the personal liability of the debtor is involved. Id. at 362-63, 84 S.Ct. at 908-09. In Hugh H. Eby Co. v. United States, 456 F.2d 923 (3d Cir. 1972), we held that the rule of Bruning is applicable to a Chapter XI arrangement. On the basis of Bruning, we declared that Congress, in determining that tax debts were nondischargeable, had made a judgment that the importance of financing the government outweighs the “value of giving the debtor a fresh start.” Id. at 925. Eby extended the Bruning rationale by declaring that the rehabilitative purpose of the Bankruptcy Act was not an obstacle to holding the Chapter XI debtor personally liable for post-petition interest on a tax debt where the debtor had acquired assets subsequent to confirmation of a Chapter XI arrangement. In similar fashion, although claims for pre-petition penalties on a tax debt are not allowable against a bankruptcy estate, debtors may be held personally liable for such penalties following confirmation of a Chapter XI plan of arrangement. In World Scope Publishers, Inc. v. United States, 348 F.2d 640, 642 (2d Cir. 1965), the Court of Appeals for the Second Circuit found support for this result" }, { "docid": "7460789", "title": "", "text": "for prepetition penalties and post-petition interest that had been brought against the debtor after consummation of a plan of arrangement. The Court of Appeals for the Second Circuit, after noting that a jurisdictional objection had been raised and rejected below, proceeded to dispose of the case on substantive grounds. Id. at 525-26. . Jurisdiction in the bankruptcy courts over debtor liability is also supported by an analysis of the consequences that might occur if the bankruptcy court did not possess such authority. The personal liability of a debtor can be a critical factor in the determination by a bankruptcy court whether it is appropriate to confirm a Chapter XI plan of arrangement. The absence of bankruptcy court jurisdiction to ascertain debtor liability could result in the confirmation of a plan of arrangement that the court might have deemed infeasible had it been able to take into account the future liability of the debtor. Such a result would be at odds with the intent of Congress in conferring bankruptcy court jurisdiction to effectuate debtor rehabilitation under Chapter XI. Additionally, as this very case illustrates, the adjudication of claims against a debtor, no less than of those against his estate, is laden with tension between the goal of debtor rehabilitation and that of satisfaction of creditor interests. Because bankruptcy court expertise extends to the accommodation of competing interests that is required where the personal liability of a debtor is at issue, there is considerable merit in having the bankruptcy court adjudicate all claims that jeopardize a debtor’s rehabilitation. . It is worth noting that Congress, in enacting the Bankruptcy Reform Act of 1978, Pub.L.No. 95 598, 11 U.S.C.A. §§ 101-151326, did not address the question whether bankruptcy courts may enjoin the collection of taxes, although it expressly provided that bankruptcy courts may “determine the amount or legality of any tax, any fine or penalty relating to a tax, or any addition to tax.” 11 U.S.C.A. § 505(a)(1). . It is significant that when Congress enacted the Bankruptcy Reform Act of 1978, it understood the former Bankruptcy Act to have conferred authority on" }, { "docid": "7460764", "title": "", "text": "OPINION OF THE COURT ADAMS, Circuit Judge. This appeal from an order of the district court, affirming the issuance by the bankruptcy court of a summary judgment and an injunction in favor of debtors, raises a number of difficult questions regarding the law of bankruptcy. The threshold inquiry is whether the bankruptcy court had jurisdiction to reopen a Chapter XI proceeding to adjudicate the personal liability of a rehabilitated debtor for pre-petition penalties and post-petition interest on a nondischargeable tax debt that had been satisfied pursuant to a plan of arrangement. If the bankruptcy court had jurisdiction, we must next determine whether it was barred from issuing injunctive or declaratory relief with respect to the collection of taxes assessed after the arrangement was completed., Finally, on the merits we are required to consider whether the Internal Revenue Service was estopped from attempting to collect pre-petition penalties and both pre-petition and post-petition interest. I. FACTS On December 12, 1974, the plaintiffs, Becker’s Motor Transportation, Inc., and Needham’s Motor Service, Inc., filed petitions for an arrangement under Chapter XI of the Bankruptcy Act. The Internal Revenue Service (IRS) filed proofs of claim in the amount of $74,792.04 against the debtors’ estate on October 21, 1975 for nondischargeable tax debts and pre-petition interest owed by Becker’s and Needham’s. In filing the proofs of claim, the IRS left blank the line on the form designated “[Djollar amount per day at which interest will accrue after date of this statement.” After all claims had been filed, the debtors proposed a joint plan of arrangement, which was confirmed by the bankruptcy court on December 1, 1976. In order to obtain sufficient cash for the consummation of the plan, the debtors borrowed over $550,000.00. Pursuant to an order of distribution issued in conformity with the plan, the tax indebtedness that had been claimed by the IRS was paid in full; nonpriority creditors received payment at the rate of 1k cents per dollar. Following distribution, the arrangement estate was closed and the debtors resumed business operations. Thereafter, in September 1977, the IRS sought to collect from the rehabilitated" }, { "docid": "15466861", "title": "", "text": "a bankrupt. Debtor-taxpayer insists that even if the letter of the Bankruptcy Act does not provide for the discharge, the general rehabilitative purpose of Chapter XI proceedings would be frustrated if the liability for this debt were preserved after confirmation. In support of this argument, we are referred to the Supreme Court’s declaration in Simonson v. Granquist, 369 U.S. 38, 41, 82 S.Ct. 537, 539, 7 L.Ed.2d 557 (1962), that the “enforcement of penalties against the estates of bankrupts * * * would serve not to punish the delinquent taxpayers, but rather their entirely innocent creditors.” However, we find this general pplicy argument most inapplicable since the District Director has not sought to enforce this debt against a fixed bankruptcy estate that must be divided up among creditors; this' debt has been treated as a personal liability of the rehabilitated debtor-taxpayer. A similar distinction was found intelligible by the Supreme Court in Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964), where the traditional rule disallowing post-petition interest (on a tax debt) as against the bankruptcy estate was held not to discharge the debtor from personal liability for such interest. Moreover, this general' policy argument is unpersuasive because it does not accord sufficient weight to the legitimate interests to be served by collecting tax penalties. The deterrent function served by penalties might be impaired by allowing a rehabilitated debtor to avoid payment of the penalties that had accrued before it filed a Chapter XI petition and there is no reason to believe that this deterrent function is less worthy than the rehabilitative function served by Chapter XI proceedings. It was post-petition rather than pre-petition penalties which were held to be “nonexistent” in National Foundry Co. v. Director of Internal Revenue, 229 F.2d 149, 150 (2 Cir. 1956). In disposing of debtor-taxpayer’s claim on the merits we should not be understood as approving of the form into which these proceedings have been cast. In September 1963, shortly after Amsterdam Overseas Corporation had paid $42,-530.30 to the District Director on behalf of the debtor-taxpayer, a claim for" }, { "docid": "15466860", "title": "", "text": "provision at least by the spirit and purposes of the Act. While section 367(1) of the Act, 11 U.S.C. § 767(1), makes an arrangement, upon confirmation binding upon all creditors, section 371, 11 U.S.C. § 771 specifically provides that a debt is not discharged by confirmation unless v it is “provided for by the arrangement.” The debt for the pre-petition penalties was not “provided for by the arrangement,” as that phrase is used in the Bankruptcy Act, see generally 9 Collier, Bankruptcy § 9.32(4) (14th ed. 1964), and thus it was not discharged by the confirmation of the arrangement. Section 57(j), 11 U.S.C. § 93(j), is also of no avail to the debtor-taxpayer, even if it is assumed (see California State Bd. of Equalization v. Goggin, 183 F.2d 489, 493 (9 Cir.), cert. denied, 340 U.S. 891, 71 S.Ct. 207, 95 L.Ed. 646 (1950)) that it is applicable in Chapter XI proceedings. It provides that penalties of this type “shall not be allowed,” not that they shall be (automatically) discharged whenever the debtor-taxpayer is adjudicated a bankrupt. Debtor-taxpayer insists that even if the letter of the Bankruptcy Act does not provide for the discharge, the general rehabilitative purpose of Chapter XI proceedings would be frustrated if the liability for this debt were preserved after confirmation. In support of this argument, we are referred to the Supreme Court’s declaration in Simonson v. Granquist, 369 U.S. 38, 41, 82 S.Ct. 537, 539, 7 L.Ed.2d 557 (1962), that the “enforcement of penalties against the estates of bankrupts * * * would serve not to punish the delinquent taxpayers, but rather their entirely innocent creditors.” However, we find this general pplicy argument most inapplicable since the District Director has not sought to enforce this debt against a fixed bankruptcy estate that must be divided up among creditors; this' debt has been treated as a personal liability of the rehabilitated debtor-taxpayer. A similar distinction was found intelligible by the Supreme Court in Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964), where the traditional rule disallowing post-petition interest (on a" }, { "docid": "15466859", "title": "", "text": "order of the District Court and the order stated that “the stipulations providing for installment payments heretofore entered into between the debt- or [and] * * * the Director of Internal Revenue * * * are made a part of this order, as if fully set forth therein.” By June 1963 the debtor-taxpayer defaulted in its payments to the District Director required by the second stipulation and the remaining installments due were accelerated. The balance was demanded and a lien was filed against the property of the debtor-taxpayer. In August of that year, $42,530.30 was paid to the District Director by a third party (Amsterdam Overseas Corporation) on its behalf. In this appeal, a refund of $5,888.47 is sought from the District Director. This amount was applied against the indebtedness owing for the pre-petition penalties. Debtor-taxpayer does not maintain that the stipulation of January 7, 1963 cancelled the indebtedness for the tax penalties then due. Instead, its theory is that the indebtedness was discharged by operation of the Bankruptcy Act, if not by any specific provision at least by the spirit and purposes of the Act. While section 367(1) of the Act, 11 U.S.C. § 767(1), makes an arrangement, upon confirmation binding upon all creditors, section 371, 11 U.S.C. § 771 specifically provides that a debt is not discharged by confirmation unless v it is “provided for by the arrangement.” The debt for the pre-petition penalties was not “provided for by the arrangement,” as that phrase is used in the Bankruptcy Act, see generally 9 Collier, Bankruptcy § 9.32(4) (14th ed. 1964), and thus it was not discharged by the confirmation of the arrangement. Section 57(j), 11 U.S.C. § 93(j), is also of no avail to the debtor-taxpayer, even if it is assumed (see California State Bd. of Equalization v. Goggin, 183 F.2d 489, 493 (9 Cir.), cert. denied, 340 U.S. 891, 71 S.Ct. 207, 95 L.Ed. 646 (1950)) that it is applicable in Chapter XI proceedings. It provides that penalties of this type “shall not be allowed,” not that they shall be (automatically) discharged whenever the debtor-taxpayer is adjudicated" }, { "docid": "2619375", "title": "", "text": "the IRS has waived its sovereign immunity in the instant matter. Accordingly, sovereign immunity does not operate to bar the debtor corporation from challenging the IRS’ attempt to collect tax penalties from Thomas R. Campbell and Ann Campbell individually. The penalties which the debtor is seeking to enjoin arose from the corporation’s failure to pay withholding taxes. Furthermore, the collection of the penalties would impact upon the debtor’s ability to reorganize. These facts, in addition to the fact that the IRS is asserting a similar claim for payment against the debtor’s Chapter 11 estate, constitute a waiver of sovereign immunity by the IRS pursuant to 11 U.S.C. Sections 106 and 505. The next issue this court will address is whether a bankruptcy court may enjoin the IRS from collecting a 100% tax penalty from individual corporate officers, upon the application of a corporate debtor. There has been a split among the districts, as well as among the circuits, with regard to this issue. Compare, Bostwick v. United States, 521 F.2d 741 (8th Cir.1975) (Bankruptcy Court may enjoin collection of federal taxes of individual debtors pending determination of dischargeability of tax obligations) with Matter of Becker’s Motor Transportation, Inc., 632 F.2d 242 (3d Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1358, 67 L.Ed.2d 341 (1981) (Bankruptcy Court may not enjoin IRS collection efforts of taxes assessed against rehabilitated debtor for pre-petition penalties and post-petition interest on nondischargeable tax debt). This court must first examine the 1980 Third Circuit case of Matter of Becker’s Motor Transportation, Inc., 632 F.2d 242 (3d Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1358, 67 L.Ed.2d 341 (1981). In Becker’s, the IRS filed proofs of claim against the plaintiffs, Becker’s Motor Transportation, Inc. and Needham’s Motor Services, Inc. The plaintiffs, which had filed petitions for relief under Chapter XI of the Bankruptcy Act, paid the claimed tax indebtedness in full pursuant to their plan of arrangement. After the arrangement estates were closed and the debtors resumed their regular business operations, the IRS sought to collect pre-petition penalties and post-petition interest on the satisfied tax debts." }, { "docid": "15956081", "title": "", "text": "N.Y. 206, 97 N.E.2d 755. This appeal raises the question whether, notwithstanding this current of authority, such interest may nevertheless be collected by direct action against a debtor after confirmation of its arrangement in Chapter XI proceedings. It is the position of the State of New York, vigorously asserted here and elsewhere, that such collection may be made by using the ordinary remedies available against solvent debtors. And this view appears to have been substantially the view of the district court in reversing the decision of the referee in bankruptcy for the debtor, although it did refrain from a final adjudication. But since a plan of arrangement recognizing the insolvency of this bankrupt has been confirmed and payments made to carry it out, the issue is before us and must be decided. Particularly in the case of a reorganized or “arranged” corporation such as this is it clear that the State’s position calls for payment of interest before the debtor can go ahead with its activities. That is, the Supreme Court rulings cannot then accomplish what they seem intended to do; on the contrary, they will lead in actuality to simpler and harsher collection of the tax interest than if ordered through the medium of reorganization or arrangement. We do not believe that all this history and decision can really have been intended to produce so pyrrhic a result. The basis of the State’s claim rests upon the provisions in the Bankruptcy Act for priority and nondischargeability of tax claims and the complete assimilation of post-bankruptcy interest to the taxes themselves. Thus § 371 of the Act, 11 U.S.C. § 771, provides that the confirmation of an arrangement shall not discharge debts not dischargeable under § 17, 11 U.S.C. § 35, while § 17 excepts from discharge debts as “are due as a tax levied by the United States, or any State, county, district, or municipality.” In § 354 as now amended, 11 U.S.C. § 755, it is provided that, when an order in an arrangement proceeding is entered directing that bankruptcy be proceeded with, “only claims for taxes legally" }, { "docid": "16772632", "title": "", "text": "arose before the date of such confirmation ... (2) The confirmation of a plan does not discharge an individual debtor from any debt excepted from discharge under section 523 of this title. Section 523(a) excepts from discharge any debt “for a tax ... of the kind and for the periods specified in section ... 507(a)(7) of this title, whether or not a claim for such tax was filed or allowed.” Section 523(a)(7) provides that tax penalties are nondis-chargeable. The IRS maintains that the debtors’ non-dischargeable tax liability includes post-petition interest and penalties, relying on Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964), and its progeny. Bruning was a Chapter VII case arising under the Bankruptcy Act. The IRS filed a claim and had received a small distribution from the estate. After the bankrupt received his discharge, the IRS proceeded to collect the remainder of the unpaid tax debt, including interest that had accrued post-petition. The bankrupt asserted that the rule disallowing claims against the estate for post-petition interest also operates to discharge the bankrupt from personal liability for such interest, even though the underlying tax debt is not discharged. Rejecting this argument, the Court explained that the purpose of the rule disallowing claims against the estate for post-petition interest is to promote administrative convenience and ensure equality of treatment of claims where the estate is insufficient to pay all claims in full. The rule does not technically prevent interest from running post-petition, since post-filing interest is indeed payable from a solvent estate. Thus the reasons for the general rule against post-filing interest do not apply in an action against the bankrupt personally. As such, the Court held that “post-petition interest on an unpaid tax debt not discharged by § 17 remains, after bankruptcy, a personal liability of the bankrupt.” Id. at 363, 84 S.Ct. at 909. The debtors contend that Bruning should be confined to Chapter 7 cases and not be extended to Chapter 11 cases. The IRS notes that the Bruning holding was followed in two cases under Chapter XI of the Act;" }, { "docid": "11762305", "title": "", "text": "MEMORANDUM SWINFORD, Chief Judge. The debtor filed a petition for a Chapter XI Arrangement on September 30, 1965. The United States filed an amended proof of claim in the amount of $29,912.60 for income taxes for the years 1962, 1963, and 1964 together with penalties and interest to the date of filing of the petition. This claim was allowed, the proposed arrangement plan was confirmed, and the United States was paid the full $29,912.60. Prior thereto, a notice of federal tax lien was filed in the office of the Fayette County Court Clerk. By agreement of the parties an order was entered by the Referee releasing this federal tax lien with respect to any property of the debtor being administered by the liquidating agent. By order of June 25, 1968, the Referee (1) ordered released any notice of tax lien which the government had placed of record to secure payment of taxes evidenced,by. its amended proof of claim and (2) permanently enjoined the government from asserting or taking any steps to collect from the liquidating agent, from the debtor in possession, or from, the debtor individually any post-petition interest or penalties on taxes embodied in the amended tax claim filed in this proceeding, that is, interest or penalties alleged to have been incurred subsequent to the filing of the petition on September 30, 1965. The United States has petitioned this court to review this order of June 25,1968. The contention of the United States is that the debtor is indebted to it in the sum of $2,934.60, which represents the post-petition interest which accrued from the date of filing the petition to the date the United States was paid for its claim. The United States contends that this debt survives the arrangement proceedings and is a personal debt of the debtor, though admittedly not collectible from the liquidating agent. The questions presented to this court are (1) whether the Referee had jurisdiction to issue the order of June 25, and (2) whether the debtor is released by the Chapter XI Arrangement from personal liability for the post-petition interest. The power" }, { "docid": "20573697", "title": "", "text": "the debtor.” § 337(1) of the Act, 11 U. S.C. § 737(1). The ingenious counsel for the plaintiffs contends, however, that the “deposit by the debtor” included a deposit of its right to sue for a preference. I see nothing in the statutory scheme that would include intangible claims for relief against third parties to be considered “deposits,” nor has any authority been cited in support. Nor can a “disbursing agent” qualify as a “receiver” whose function, in any event, would be “to preserve the debtor’s property rather than act as the representative of his creditors.” See Bartle v. Markson, 340 F.2d 30, 33 (2 Cir. 1965). Since the assignment of the disbursing agent of the claims to void preferences was invalid, the claim to recover the alleged preference remained in the debtor-in-possession. In the case at bar, the plan of arrangement was confirmed by the Referee on December 28, 1970. The order of confirmation did not specifically provide for retention of jurisdiction by the Bankruptcy Court, but the Plan of Arrangement did provide for retention of jurisdiction. It was, nevertheless,, also provided that “upon confirmation of this Plan by the Court, the Debtor shall be released and discharged of all its unsecured debts.” (Emphasis supplied) The defendant contends that after confirmation of a Chapter XI plan of arrangement the jurisdiction which the Bankruptcy Court may retain is “severely limited” and does not include the right to allow an action to avoid a preference. In support of this contention, the defendant quotes from Collier On Bankruptcy to the effect that, after confirmation, the court is automatically vested with jurisdiction over certain phases of the post-confirmation process, particularly the allowance or disallowance of claims, § 369; distribution of the proceeds of successful claimants, §§ 367(2) and (3) and 370; the entering of a final decree, § 372; the setting aside of a confirmed arrangement for fraud, § 386; and the issuance of certificates of indebtedness, § 344. Under Section 377, the court also may take certain action against a debtor who has defaulted, provided that the court has retained jurisdiction. 9" }, { "docid": "15036792", "title": "", "text": "When the debtor was adjudicated bankrupt, no arrangement plan had been confirmed, and the bulk of the tax monies remained undistributed. The order for segregation of tax funds was superseded by the bankruptcy adjudication, and such adjudication related back to the original filing of the Chapter XI petition, In re Tamasha, supra, at 1380; Miller v. Woolley, 141 F.2d 837 (9th Cir. 1944). Thus, upon adjudication of bankruptcy, the monies segregated during the arrangement period became subject to the priorities specified in section 64(a). Affirmed. . Jurisdiction is conferred on this Court pursuant to 28 U.S.C. § 1291, and section 24a of the Bankruptcy Act, 11 U.S.C. § 47. . “Whenever any person is required to collect or withhold any internal revenue tax from any other person and to pay over such tax to the United States, the amount of tax so collected or withheld shall be held to be a special fund in trust for the United States. The amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose.” . “Until 1926 claims for administrative expenses were subordinate to tax claims. In that year they were placed ahead of taxes. The costs and administrative expenses of a trustee were, however, still subordinate to claims of the referee or creditors for preserving or recovering assets. In 1952 the Act was amended to give priority to administrative expenses of an ensuing bankruptcy proceeding over unpaid administrative expenses of the superseded proceeding.” At 516, 91 S.Ct. at 993. . There the trustee had paid the priority wage claims, with the taxes withheld and set aside, pursuant to an agreement that the rights of the parties would not be affected thereby. The Court stated that the United States, therefore, was “not in a position to claim that a trust fund [had] been established under § 7501(a) of the Internal Revenue Code, 26 U.S.C. § 7501(a).” At 55 n. 8, 95 S.Ct. at 256. . We recognize" }, { "docid": "7460765", "title": "", "text": "Chapter XI of the Bankruptcy Act. The Internal Revenue Service (IRS) filed proofs of claim in the amount of $74,792.04 against the debtors’ estate on October 21, 1975 for nondischargeable tax debts and pre-petition interest owed by Becker’s and Needham’s. In filing the proofs of claim, the IRS left blank the line on the form designated “[Djollar amount per day at which interest will accrue after date of this statement.” After all claims had been filed, the debtors proposed a joint plan of arrangement, which was confirmed by the bankruptcy court on December 1, 1976. In order to obtain sufficient cash for the consummation of the plan, the debtors borrowed over $550,000.00. Pursuant to an order of distribution issued in conformity with the plan, the tax indebtedness that had been claimed by the IRS was paid in full; nonpriority creditors received payment at the rate of 1k cents per dollar. Following distribution, the arrangement estate was closed and the debtors resumed business operations. Thereafter, in September 1977, the IRS sought to collect from the rehabilitated debtors $34,-960.14 in pre-petition penalties and post-petition interest on the satisfied tax debts. No notice of these claims had been provided during the arrangement. On May 18, 1978, the debtors applied to the bankruptcy court, which had closed the estate, for an order reopening the proceedings. On the same day, the request was granted and the debtors filed a complaint seeking declaratory and injunctive relief against any further collection efforts by the IRS. The IRS moved unsuccessfully to dismiss the complaint, and the debtors later moved for summary judgment. After hearing oral argument, the bankruptcy court granted the debtors’ motion and enjoined further IRS collection efforts. The IRS appealed to the district court, which, following oral argument, affirmed the orders of the bankruptcy court. In an unpublished opinion, the district court held that the IRS was equitably estopped from asserting claims for which it had not given notice during the Chapter XI proceeding. The district court stated that the debtors had relied to their detriment on the assumption that such claims would not be asserted" }, { "docid": "20573698", "title": "", "text": "retention of jurisdiction. It was, nevertheless,, also provided that “upon confirmation of this Plan by the Court, the Debtor shall be released and discharged of all its unsecured debts.” (Emphasis supplied) The defendant contends that after confirmation of a Chapter XI plan of arrangement the jurisdiction which the Bankruptcy Court may retain is “severely limited” and does not include the right to allow an action to avoid a preference. In support of this contention, the defendant quotes from Collier On Bankruptcy to the effect that, after confirmation, the court is automatically vested with jurisdiction over certain phases of the post-confirmation process, particularly the allowance or disallowance of claims, § 369; distribution of the proceeds of successful claimants, §§ 367(2) and (3) and 370; the entering of a final decree, § 372; the setting aside of a confirmed arrangement for fraud, § 386; and the issuance of certificates of indebtedness, § 344. Under Section 377, the court also may take certain action against a debtor who has defaulted, provided that the court has retained jurisdiction. 9 Collier, supra, If 9.29 [3] at 373. The defendant suggests that since the recovery of a preference is not one of those acts over which the bankruptcy court is given specific jurisdiction, this action cannot be maintained. It may be argued, further, that since, upon confirmation, title to the estate revests in the debtor, § 70i, 11 U.S. C. § 110(i), he should no longer be con sidered a debtor-in-possession exercising powers, as such, under the Bankruptcy Act. TCFC was a debtor in possession after confirmation of the plan, for the order of Referee Ford provided “that the Debtor shall continue in possession and continue operation of the business in accordance with the orders heretofore entered by this Court.” Bankruptcy Act § 357(5), 11 U.S.C. § 757(5). 9 Collier, supra, If 8.10 at 177-79. Retention of jurisdiction was provided for in the Plan “[p]ursuant to the provisions of Sections 368, 369 and 370 of the Bankruptcy Act, . . . for all purposes until the arrangement has been fully consummated, . . . [including] ." }, { "docid": "15466862", "title": "", "text": "tax debt) as against the bankruptcy estate was held not to discharge the debtor from personal liability for such interest. Moreover, this general' policy argument is unpersuasive because it does not accord sufficient weight to the legitimate interests to be served by collecting tax penalties. The deterrent function served by penalties might be impaired by allowing a rehabilitated debtor to avoid payment of the penalties that had accrued before it filed a Chapter XI petition and there is no reason to believe that this deterrent function is less worthy than the rehabilitative function served by Chapter XI proceedings. It was post-petition rather than pre-petition penalties which were held to be “nonexistent” in National Foundry Co. v. Director of Internal Revenue, 229 F.2d 149, 150 (2 Cir. 1956). In disposing of debtor-taxpayer’s claim on the merits we should not be understood as approving of the form into which these proceedings have been cast. In September 1963, shortly after Amsterdam Overseas Corporation had paid $42,-530.30 to the District Director on behalf of the debtor-taxpayer, a claim for refund was filed by the debtor-taxpayer. This claim was not honored. Rather than commencing a plenary suit in a federal district court for a refund under section 7422 of the 1954 Internal Revenue Code, on November 26, 1963 the debtor-taxpayer filed an application for an order to show cause in the bankruptcy court which confirmed the arrangement (the District Court for the Eastern District of New York). The application sought, among other things, a refund for the amount applied against the pre-petition penalties. The application was referred to a referee in bankruptcy and the debtor-taxpayer renewed its request for the refund by way of a motion addressed to the Referee. The Referee denied the motion and the debtor-taxpayer sought review of that order by filing a petition to review under section 39(c) of the Bankruptcy Act, 11 U.S.C. § 67(c). On June 29, 1964, Judge Abruzzo denied the debtor-taxpayer relief on the ground that “this Court is without power to decide this motion in a summary proceeding.” However, three months later (on September 28, 1964)" } ]

[ { "docid": "7174329", "title": "", "text": "the award would be made on the base work if that was all to be ordered, and on the full contract price if money was found for the additives by June 15th; but this course might have excessively complicated the bidding if one, or some, rather than all, of the additives were finally chosen to be included. We cannot say, on balance, that the contracting officer necessarily violated the “full and free competition” demanded by Congress in choosing as his guide the large core of the procurement, the base work, which was almost 90% of the ultimate project. There was no plain illegality compelling this court so to declare and to deprive plaintiff of all recovery. For these reasons, we hold, under one principle discussed in Reiner, that in the circumstances of this case plaintiff’s contract should not be deemed void. Under another principle of Reiner, we hold that plaintiff’s recovery is not common-law damages (including unearned but anticipated profits) but the money to which it would be entitled on a termination of the contract for the Government’s convenience. (This contract contained such a clause.) Unlike the Reiner case, there is no agreement here as to what that sum would be. It might be argued that this determination should first be made within the Defense Department by the contracting officer and the Board of Contract Appeals. We do not follow that course, however. This is not a case in which the contract was actually terminated (or sought to be terminated) under the termination article. It is a case in which the agreement was can-celled for other reasons, now found to be wrong, but in which the doctrine of College Point Boat Corp. v. United States, 267 U.S. 12, 15-16, 45 S.Ct. 199, 200-201, 69 L.Ed. 490 (1925) (discussed in the Reiner opinion) “operate [s] to curtail the damages recoverable” when suit is brought for a breach. In such a case, there is no requirement of the contract or the Wunderlich Act, 41 U.S.C. §§ 321-322, that the damages be computed administratively; the termination article is invoked only as the limiting" } ]

[ { "docid": "22147065", "title": "", "text": "was, and is, not the same kind of emergency situation. From the Corliss decision in 1876 to the last use of the World War II convenience termination clause in early 1944, the legal basis of the government’s power had always been that the great and unpredictable circumstances of war necessitated some ability to halt useless contracts and settle with the contractors. War was now absent. The response in this court was to rely on the risk allocation nature of the concept and to allow termination for convenience only when the expectations of the parties had been subjected to a substantial change. The contractor risked losing the full benefit of his performance if something occurred, apart from the bargain and the expecta tions of the parties, that made continuance of the contract clearly inadvisable. The history of cases in this court demonstrates this. John Reiner & Co. v. United States, 163 Ct. Cl. 381, 325 F.2d 438 (1963), cert. denied, 377 U.S. 931 (1964) (irregularity in the bid award); Brown & Son Elec. Co. v. United States, 163 Ct. Cl. 465, 325 F.2d 446 (1963) (irregularity in bid award); Nesbitt v. United States, 170 Ct. Cl. 666, 345 F.2d 583 (1965), cert. denied, 383 U.S. 926 (1966) (refusal of contractor to meet requirements); Warren Bros. Roads Co. v. United States, 173 Ct. Cl. 714, 355 F.2d 612 (1965) (irregularity in the bid award); Coastal Cargo Co. v. United States, 173 Ct. Cl. 259, 351 F.2d 1004 (1965) (irregularity in bid award); Schlesinger v. United States, 182 Ct. Cl. 571, 390 F.2d 702 (1968) (plaintiff under investigation by Senate for procurement irregularities, and in technical default); Nolan Bros. v. United States, 186 Ct. Cl. 602, 405 F.2d 1250 (1969) (physical changes at site made performance impossible); G.C. Casebolt Co. v. United States, 190 Ct. Cl. 783, 421 F.2d 710 (1970) (irregularity in the bid award). These cases recognized that the termination for convenience clause was only to be applied where there was some change from the parties’ original bargain and was not to be applied as broadly as an untutored reading of" }, { "docid": "2190350", "title": "", "text": "of its wrongful action by thereafter terminating the contract for its own convenience. The answer, we think, is that the convenience article was precisely intended to allow the Government to avoid the consequence that it pay unearned profits. See G. L. Christian & Associates v. United States, supra, 160 Ct. Cl. at 15-16, 312 F. 2d at 426-27. In the cases in this area that have gone before, the Government’s action always amounted to a breach, as seen at the time, but nevertheless it was held that the termination clause could later be invoked and the recovery controlled by the termination formula, i.e. no unearned profits. In College Point Boat Corp. v. United States, supra 267 U.S. at 15, the Government simply told the contractor to stop work, and the Court characterized this as “an anticipatory breach.” The right to cancel under the World War I statute (which was the equivalent of the convenience-termination clause) “was asserted later, in court” and “operated to curtail the damages recoverable.” Id. at 16. In John Reiner & Co. v. United States, supra, 163 Ct. Cl. 381, 325 F. 2d 438, the Government cancelled the contract outright (without any payment at all) because the General Accounting Office had said the award was improper; we held the award legal and the cancellation baseless but that the termination-clause measure-of ^recovery applied; if that article were absent or inapplicable, the defendant’s action would have been treated exactly ias a common law breach. This was also true in Brown & Son Electric Co. v. United States, 163 Ct. Cl. 465, 325 F. 2d 446 (1963); Coastal Cargo Co., Inc. v. United States, 173 Ct. Cl. 259, 351 F. 2d 1004 (1965); and Warren Bros. Roads Co. v. United States, 173 Ct. Cl. 714, 355 F. 2d 612 (1965). In Nesbitt v. United States, supra, 170 Ct. Cl. 666, 345 F. 2d 583, we assumed that the defendant had breached its obligation to give all of its orders for the contract title work to Mr. Nesbitt but nevertheless we refused to award him the unearned profit he would have" }, { "docid": "22583763", "title": "", "text": "on other grounds, 385 U.S. 138 (1966). Since the July 1st notice was thus issued improperly it cannot have the same status as a default-termination which is the fruit of true consideration. Cf. New York Shipbuilding Corp. v. United States, supra. There are two theories as to the consequences, but both lead to the same result. The first, and preferable one, is that the termination notice was a nullity and therefore there was no valid ending of performance on the ground of default. Under this view — that the contract was canceled on an unsound ground and in an illegal manner — the termination must be treated, not as a breach of contract, but as a termination for convenience since the contract contained a “convenience” clause which could have been used to end performance if the Navy thought it well to do so on learning of the Senate committee’s views. This is the teaching of John Reiner & Co. v. United States, 163 Ct. Cl. 381, 325 F. 2d 438 (1963), cert. denied, 377 U.S. 931 (1964), and like cases. It is only where a contractor is defaulted when he is not at all in default that a breach can be said to occur. Klein v. United States, 152 Ct. Cl. 8, 285 F. 2d 778 (1961); Acme Process Equip. Co. v. United States, supra, 171 Ct. Cl. at 355, 360 n.29, 347 F. 2d at 527-28, 530 n.29, and cases cited; Coastal Cargo Co. v. United States, 173 Ct. Cl. 259, 264 n.6, 351 F. 2d 1004, 1007 n.6 (1965) , Here, as we have pointed ont several times, there was in fact a default. The alternative theory is that the default should be treated, under paragraph (e) of the article (note 5 supra), as a “failure to perform this contract” which is “due to causes beyond the control and without the fault or negligence of the Contractor.” It can be argued (1) that since the plaintiff actually failed to deliver, the termination notice, though improper, was valid enough to trigger the operation of the article; but (2) that" }, { "docid": "21279790", "title": "", "text": "required by the contract. Having taken no other steps to complain or to terminate the contract at the time, the Government cannot now raise plaintiff’s delay as a retroactive default to excuse its own breach. The delay was waived. Cf. De Vito v. United States, 188 Ct. Cl. 979, 413 F. 2d 1147 (1969). There is no valid defense to the claim of breach. For the breach, plaintiff claims damages composed of estimated lost profits under all three contracts, at 10 percent of the dollar volume of business diverted from it to GSA, and an operating loss of $34,831.72 at the Clearfield branch plant for the year of the 1969-70 contract. Lost profits may not be recovered, by reason of the termination-for-convenience clause, present in all three contracts. Though the contracts were breached without reference to or reliance upon the termination-for-convenience clauses, it is settled that the clause nevertheless restricts the damages recoverable for the breach to those which would have been allowable under the convenience-termination clause, had it been invoked. Nesbitt v. United States, 170 Ct. Cl. 666, 345 F. 2d 583 (1965), cert. denied 383 U.S. 926 (1966); G. C. Casebolt Co. v. United States, 190 Ct. Cl. 783, 421 F. 2d 710 (1970); John Reiner & Co. v. United States, 163 Ct. Cl. 381, 325 F. 2d 438 (1963), cert. denied, 377 U.S. 931 (1964). In Nesbitt v. United States, supra, the court held that even if plaintiff’s contract be deemed, as alleged, to be a contract for all of the Government’s requirements, the Government could still have placed orders elsewhere, on a partial termination for convenience from time to time; and that the omission to invoke the termination clause “makes no difference and that the clause nevertheless sets the limit on any recovery.” 170 Ct. Cl. at 669, 345 F. 2d at 585. The case is thus particularly apposite, for the convenience-termination clause in the contract here also permits termination “in whole, or from time to time in part.” 32 CFR § 8701(a) (1969) subparagraph (a), April 1966 text. Alleged lost profits aside, there remains the" }, { "docid": "21164904", "title": "", "text": "370-71, 372-73. In a series of cases beginning with John Reiner & Co. v. United States, 163 Ct. Cl. 381, 325 F. 2d 438 (1963), cert. denied, 377 U.S. 931 (1964), the court has held that, where the contracting officer has adverted to the issue which gives rise to the problem, “has viewed the award as lawful, and it is reasonable to take that position under the legislation and regulations, the court should normally follow suit” and should “impose the binding stamp of nullity only when the illegality is plain.” 163 Ct. Cl. at 386, 325 F. 2d at 440; see Brown & Son Elec. Co. v. United States, 163 Ct. Cl. 465, 325 F. 2d 446 (1963) ; Warren Bros. Roads Co. v. United States, 173 Ct. Cl. 714, 355 F. 2d 612 (1965) ; Coastal Cargo Co. v. United States, 173 Ct. Cl. 259, 351 F. 2d 1004 (1965). The regulations involved were substantially the same as SBA Regulation i 121.3-8 and Federal Procurement Regulation § 1-1.703-1, which are quoted supra. Any notion that the OUs rule is limited to eases in which the bidder rather than the Government is trying to avoid the contract is dispelled by the court’s statement that, “[I]n the absence of fraud [or bad faith, or the like], defendant was equally bound on the contract with plaintiff.” 161 Ct. Cl. at 699, 316 F. 2d at 940. The Comptroller General has declined, on occasion, to cancel contracts despite the SBA’s post-award determination that the bidder was not eligible. See 8 C.C.F. ¶ 71574 (1961) (B-145948). Compare 9 C.C.F. ¶ 72776 (1964) (No. B—154453) ; 9 C.C.F. ¶ 72697 (1964) (No. B-154428) ; 34 Comp. Gen. 115 (1954) (No. B—121145). There is nothing in the paragraph which confines this authority to the period prior to a determination by the SBA regional office (or other low-level determination), and it would be extraordinary to limit it in that fashion since injurious delay can more readily be found the longer the SBA takes to make its ultimate determination. It is significant that the Federal Procurement Regulations on" }, { "docid": "15220819", "title": "", "text": "the contract — it cannot escape the normal common law consequences of its wrongful action by thereafter terminating the contract for its own convenience. The answer, we think, is that the convenience article was precisely intended to allow the Government to avoid the consequence that it pay unearned profits. See G. L. Christian and Associates v. United States, supra, 312 F.2d at 426-427, 160 Ct.Cl. at 15-16. In the cases in this area that have gone before, the Government’s action always amounted to a breach, as seen at the time, but nevertheless it was held that the termination clause could later be invoked and the recovery controlled by the termination formula, i. e., no unearned profits. In College Point Boat Corp. v. United States, supra 267 U.S. at 15, 45 S.Ct. 199, the Government simply told the contractor to stop work, and the Court characterized this as “an anticipatory breach.” The right to cancel under the World War I statute (which was the equivalent of the convenience-termination clause) “was asserted later, in court” and “operated to curtail the damages recoverable.” Id. at 16, 45 S.Ct. at 199, 201. In John Reiner & Co. v. United States, supra, 325 F.2d 438, 163 Ct.Cl. 381, the Government cancelled the contract outright (without any payment at all) because the General Accounting Office had said the award was improper; we held the award legal and the cancellation baseless but that the termination-clause measure-of-reeovery applied; if that article were absent or inapplicable, the defendant’s action would have been treated exactly as a common law breach. This was also true in Brown & Son Electric Co. v. United States, 325 F.2d 446, 163 Ct.Cl. 465 (1963); Coastal Cargo Co., Inc. v. United States, 351 F.2d 1004, 173 Ct.Cl. 259 (1965); and Warren Bros. Roads Co. v. United States, 355 F.2d 612, 173 Ct.Cl. 714 (1965). In Nesbitt v. United States, supra, 345 F.2d 583, 170 Ct.Cl. 666 we assumed that the defendant had breached its obligation to give all of its orders for the contract title work to Mr. Nesbitt but nevertheless we refused to award" }, { "docid": "2190351", "title": "", "text": "v. United States, supra, 163 Ct. Cl. 381, 325 F. 2d 438, the Government cancelled the contract outright (without any payment at all) because the General Accounting Office had said the award was improper; we held the award legal and the cancellation baseless but that the termination-clause measure-of ^recovery applied; if that article were absent or inapplicable, the defendant’s action would have been treated exactly ias a common law breach. This was also true in Brown & Son Electric Co. v. United States, 163 Ct. Cl. 465, 325 F. 2d 446 (1963); Coastal Cargo Co., Inc. v. United States, 173 Ct. Cl. 259, 351 F. 2d 1004 (1965); and Warren Bros. Roads Co. v. United States, 173 Ct. Cl. 714, 355 F. 2d 612 (1965). In Nesbitt v. United States, supra, 170 Ct. Cl. 666, 345 F. 2d 583, we assumed that the defendant had breached its obligation to give all of its orders for the contract title work to Mr. Nesbitt but nevertheless we refused to award him the unearned profit he would have made if all of the Government’s orders had been routed to him. No proper distinction can be made, in the circumstances here, between the type of breach involved in those cases (complete stoppage of the work) and the breach alleged in plaintiff’s petition (defective design and plans, and misrepresentations). This is not a case in which the contractor struggled to perform under defective plans and specifications and then had to give up the job, finding his task impossible, or finally managed to finish the work at inordinate cost. The defendant stopped the work and Nolan Brothers did not have to perform further, exactly as in the prior cases. The situation is the same. There is no more reason to allow prospective profits here than in those instances. Indeed, it would create anomalies to hold that plaintiff could recover such profits. If the Government, as it might have done, had terminated the contract for default because plaintiff lagged (on account of the defective specifications) and the default was found excusable (as due to the defendant’s own" }, { "docid": "22583774", "title": "", "text": "appears, no other procurement official but the contracting officer was involved, and the court did not hold, and had no occasion to hold, that a superior cannot call for a default-termination. On the broader issue of abdication of responsibility, the Johnson case is, of course, squarely in point, as we say immediately below in the text. See Brown & Son Elec. Co. v. United States, 163 Ct. Cl. 466, 325 F. 2d 446 (1963) ; Litchfield Mfg. Corp. v. United States, 167 Ct. Cl. 604, 609 n.9, 338 F. 2d 94, 96 n.9 (1964) ; Nesbitt v. United States, 170 Ct. Cl. 666, 345 F. 2d 583 (1965), cert. denied, 383 U.S. 926 (1966) ; Coastal Cargo Co. v. United States, 173 Ct. Cl. 259, 263-64, 351 F. 23 1004, 1007-08 (1965) ; Warren Bros. Roads Co. v. United States, 173 Ct. Cl. 714, 722-23, 355 F. 2d 612, 616 (1965). Even In that instance recent default articles equate an erroneous default termination with a convenience termination. See Dale Constr. Co. v. United States, 168 Ct. Cl. 692, 722 n.22 (1964). The cited decisions refer to the older form." }, { "docid": "9434032", "title": "", "text": "entered for plaintiff in the sum of $16,780. OPINION OF COMMISSIONER DAY, Commissioner: This is a contract case in which only the amount of damages is in issue, the government having admitted that it wrongfully terminated a contract made with the plaintiff. Since the pertinent facts are fully stated in the attached findings, it is enough to say here that the government’s action was based on its mistaken belief that plaintiff had defaulted by not furnishing a proper performance bond within the allowed time period. In fact, however, the termination was premature,' coming before the period expired, and plaintiff eventually furnished a timely and proper bond. Both parties now agree that plaintiff was not in default. The contract did not contain a clause allowing termination for the convenience of the government and none was required to be inserted under any applicable federal regulation. [Transcript at 6.] See G. L. Christian & Assoc. v. United States, 312 F.2d 418, 160 Ct.Cl. 1 (1963), cert. denied 375 U.S. 954, 84 S. Ct. 444, 11 L.Ed.2d 314 (1963). There was only one reference to a convenience termination (see finding 3), and it was limited to cases in which the contractor’s default might be excusable due to causes beyond his control. Consequently, the termination constituted a common law breach of contract. See Nolan Bros. v. United States, 405 F.2d 1250, 1254, 186 Ct.Cl. 602, 609 (1969), in which this court said: * * * In John Reiner & Co. v. United States [325 F.2d 438, 163 Ct.Cl. 381] [citation omitted], the Government canceled the contract outright (without any payment at all) because the General Accounting Office had said the award was improper; we held the award legal and the cancellation baseless but that the termination-clause measure-of-recovery applied; if that article were absent or inapplicable, the defendant’s action would have been treated exactly as a common law breach. * * * [Emphasis added.] Accordingly, plaintiff’s recovery is to be measured by its anticipated profits from the contract. Cf. David J. Joseph Co. v. United States, 82 F.Supp. 345, 113 Ct.Cl. 3 (1949); Brown & Son" }, { "docid": "6095993", "title": "", "text": "contractor in such a situation decides to commence “performance of the contract, a subsequent holding of non-enforceability would lead to denial of all recovery under the agreement even though the issue of legality is very close; and under the doctrine of quantum meruit there would be no reimbursement for expenses incurred in good faith but only for any tangible benefits actually received by the defendant.” 163 Ct. Cl. at 387, 325 F. 2d at 440. It is therefore just to the contractor, as well as to the Government, to give him the benefit of reasonable doubts and to uphold the award unless its invalidity is clear. In “applying that norm” and refusing to consider the “award to have been a nullity,” the court in Reiner too looked to the “other occasions” wherein the contractor had answered “the same type of invitation” and “had been granted the contracts,” such method of purchasing having become “an accepted form of procurement by” the agency there involved. 163 Ct. Cl. at 387, 325 F.2d at 440-41. Similar instances in which the court, following the Reiner approach, has refused to invalidate an award are Mid-West Constmcetion, Ltd. v. United States, 181 Ct. Cl. 774, 387 F.2d 957 (1967); Warren Brothers Roads Co. v. United States, 173 Ct. Cl. 714, 355 F.2d 612 (1965); Coastal Cargo Co. v. United States, 173 Ct. Cl. 259, 351 F.2d 1004 (1965); and Brown & Son Electric Co. v. United States, 163 Ct. Cl. 465, 325 F.2d 446 (1963). This is not to say that the Supply Center would be forever estopped from ceasing to grant contracts containing such a qualification if it decided to do so as a matter of judgment and policy, and as it apparently did with respect to another kind of qualification which Oompeco had employed. But this is entirely different from awarding a contract with such a qualification, as it had done for many years, and then asking a court to declare its award action a nullity on the ground of its own alleged illegality. While the erroneous use of an illegal procedure in similar" }, { "docid": "15220820", "title": "", "text": "to curtail the damages recoverable.” Id. at 16, 45 S.Ct. at 199, 201. In John Reiner & Co. v. United States, supra, 325 F.2d 438, 163 Ct.Cl. 381, the Government cancelled the contract outright (without any payment at all) because the General Accounting Office had said the award was improper; we held the award legal and the cancellation baseless but that the termination-clause measure-of-reeovery applied; if that article were absent or inapplicable, the defendant’s action would have been treated exactly as a common law breach. This was also true in Brown & Son Electric Co. v. United States, 325 F.2d 446, 163 Ct.Cl. 465 (1963); Coastal Cargo Co., Inc. v. United States, 351 F.2d 1004, 173 Ct.Cl. 259 (1965); and Warren Bros. Roads Co. v. United States, 355 F.2d 612, 173 Ct.Cl. 714 (1965). In Nesbitt v. United States, supra, 345 F.2d 583, 170 Ct.Cl. 666 we assumed that the defendant had breached its obligation to give all of its orders for the contract title work to Mr. Nesbitt but nevertheless we refused to award him the unearned profit he would have made if all of the Government’s orders had been routed to him. No proper distinction can be made, in the circumstances here, between the type of breach involved in those cases (complete stoppage of the work) and the breach alleged in plaintiff’s petition (defective design and plans, and misrepresentations). This is not a case in which the contractor struggled to perform under defective plans and specifications and then had to give up the job, finding his task impossible, or finally managed to finish the work at inordinate cost. The defendant stopped the work and Nolan Brothers did not have to perform further, exactly as in the prior cases. The situation is the same. There is no more reason to allow prospective profits here than in those instances. Indeed, it would create anomalies to hold that plaintiff could recover such profits. If the Government, as it might have done, had terminated the contract for default because plaintiff lagged (on account of the defective specifications) and the default was found" }, { "docid": "22583773", "title": "", "text": "June 28th (received June 30th) seemed to ask for an extension to July 15th. The details appear In a memorandum for the file prepared by the contracting officer on June 27th recording the substance of his conversations on that day with the Assistant to the Assistant Chief of the Bureau of Supplies and Accounts for Purchasing, as weU as summarizing the contracting officer’s own actions with respect to the contract on that day. This memorandum Is Included in the Board record. On this precise and limited point, John A. Johnson Contracting Corp. v. United States, 132 Ct. Cl. 645, 658-60, 132 F. Supp. 698, 704-05 (1955), is distinguishable. With respect to the termination in that case, the contracting officer did not follow the directive of any superior (as he did on another aspect of the case) ; he issued his notice of default termination solely as “a device to satisfy what lawyers told him were, or probably were, the legal requirements of the situation.” Id. at 660, 132 F. Supp. at 705. So far as appears, no other procurement official but the contracting officer was involved, and the court did not hold, and had no occasion to hold, that a superior cannot call for a default-termination. On the broader issue of abdication of responsibility, the Johnson case is, of course, squarely in point, as we say immediately below in the text. See Brown & Son Elec. Co. v. United States, 163 Ct. Cl. 466, 325 F. 2d 446 (1963) ; Litchfield Mfg. Corp. v. United States, 167 Ct. Cl. 604, 609 n.9, 338 F. 2d 94, 96 n.9 (1964) ; Nesbitt v. United States, 170 Ct. Cl. 666, 345 F. 2d 583 (1965), cert. denied, 383 U.S. 926 (1966) ; Coastal Cargo Co. v. United States, 173 Ct. Cl. 259, 263-64, 351 F. 23 1004, 1007-08 (1965) ; Warren Bros. Roads Co. v. United States, 173 Ct. Cl. 714, 722-23, 355 F. 2d 612, 616 (1965). Even In that instance recent default articles equate an erroneous default termination with a convenience termination. See Dale Constr. Co. v. United States, 168" }, { "docid": "10620958", "title": "", "text": "(1947). Furthermore, the Government is not estopped to deny the limitations of his authority. Prestex Inc., supra. It makes no difference that the Department of the Interior had used the procedure employed here in an earlier contract with Fouke. That contract was entered into in 1947, before the enactment of the Federal Property and Administrative Services Act. Moreover, it was not until March 10,1959, that the Department of the Interior was authorized to utilize the provisions of Title III of the Federal Property and Administrative Services Act of 1949,24 F.R. 1921 (March 17,1959), 41 C.F.R. § 14-1.101; it was not until January 26, 1962 that the Department of the Interior actually adopted regulations implementing Title III, 27 F.E. 776 (January 26, 1962), 41 C.F.E. § 14-1.102. Finally, assuming arguendo that the Government had erroneously used these same procedures in other procurements, that is no reason to force the Government to use a practice which is forbidden by applicable regulations. This is a case in which we find the illegality in the award to be plain on the face of the statute and the regulations unlike those cases in which we gave the contractor the benefit of the doubt because invalidity was not clear and the contrary position was reasonable. See John Reiner & Co. v. United States, 163 Ct. Cl. 381, 386-89, 325 F. 2d 438, 440-42 (1963), cert. denied 377 U.S. 931 (1964); Brown & Son Electric Co. v. United States, 163 a. Cl. 465, 325 F. 2d 446 (1963); Coastal Oargo Co. v. United States, 173 Ct. Cl. 259, 351 F. 2d 1004 (1965); Warren Bros. Roads Co. v. United States, 173 Ct. Cl. 714, 355 F. 2d 612 (1965). Where illegality is clear, we have no choice 'but to hold the award and contract to be invalid. Since the Department of the Interior’s regulations, based on the Federal Procurement Eegulations mandated by the Federal Property and Administrative Services Act of 1949, were not followed, the contract at issue here was invalid and of no effect. Therefore, the rescinding of the contract was not a breach. Accordingly, defendant’s" }, { "docid": "21164903", "title": "", "text": "award, the appellant will be deemed to have waived its rights of appeal insofar as the pending procurement is concerned.” 41 C.F.R. § 1-1.703-2(d), (f) (1967). There is not, and could not be, any question of apparent authority. E.g., W. H. Whiteside & Co. v. United States, 93 U.S. 247, 256-57 (1876) ; Arthur Venneri Co. v. United States, 180 Ct. Cl. 920, 924-5, 381 F. 2d 748, 750 (1967). In Prestew the contracting officer, in accepting the plaintiff’s bid, did not exercise any discretion to decide, on the basis of the known facts, that there was no such substantial deviation. Because of the cryptic nature of the bidder’s exception, the officer did not realize that the bid was quite unresponsive (or could be said to be so) and therefore he failed to see that there was any problem at all. See 162 Ct. Cl. at 623, 625, 320 F. 2d at 369-70, 371. Moreover, the plaintiff’s gross departure was unmistakably plain once the facts were revealed. Id. at 623-24, 627, 320 F. 2d at 370-71, 372-73. In a series of cases beginning with John Reiner & Co. v. United States, 163 Ct. Cl. 381, 325 F. 2d 438 (1963), cert. denied, 377 U.S. 931 (1964), the court has held that, where the contracting officer has adverted to the issue which gives rise to the problem, “has viewed the award as lawful, and it is reasonable to take that position under the legislation and regulations, the court should normally follow suit” and should “impose the binding stamp of nullity only when the illegality is plain.” 163 Ct. Cl. at 386, 325 F. 2d at 440; see Brown & Son Elec. Co. v. United States, 163 Ct. Cl. 465, 325 F. 2d 446 (1963) ; Warren Bros. Roads Co. v. United States, 173 Ct. Cl. 714, 355 F. 2d 612 (1965) ; Coastal Cargo Co. v. United States, 173 Ct. Cl. 259, 351 F. 2d 1004 (1965). The regulations involved were substantially the same as SBA Regulation i 121.3-8 and Federal Procurement Regulation § 1-1.703-1, which are quoted supra. Any notion" }, { "docid": "5679293", "title": "", "text": "plaintiff in the sum of $16,780. OPINION OP COMMISSIONER Day, Commissioner: This is a contract case in which only the amount of damages is in issue, the government having admitted that it wrongfully terminated a contract made with the plaintiff. Since the pertinent facts are fully stated in the attached findings, it is enough to say here that the government’s action was based on its mistaken belief that plaintiff had defaulted by not furnishing a proper performance bond within the allowed time period. In fact, however, the termination was premature, coming before the period expired, and plaintiff eventually furnished a timely and proper bond. Both parties now agree that plaintiff was not in default. The contract did not contain a clause allowing termination for the convenience of the government and none was required to be inserted under any applicable federal regulation. [Transcript at 6.] See G. L. Christian & Assoc. v. United States, 160 Ct. Cl. 1, 312 F. 2d 418 (1963), cert. denied 375 U.S. 954 (1963). There was only one reference to a convenience termination (see finding 3), and it was limited to cases in which the contractor’s default might be excusable due to causes beyond his control. Consequently, the termination constituted a common law breach of contract. See Nolan Bros. v. United States, 186 Ct. Cl. 602, 609, 405 F. 2d 1250, 1254 (1969), in which this court said: * * * In John Reiner & Co. v. United States [citation omitted], the Government canceled the contract outright (without any payment at all) because the General Accounting Office had said the award was improper; we held the award legal and the cancellation baseless but that the termination-clause measure-of-recovery applied ; if that article were absent or inapplicable, the defendant's action would have been treated exactly as a common law breach. * * * [Emphasis added.] Accordingly, plaintiff’s recovery is to be measured by its anticipated profits from the contract. Cf. David J. Joseph Co. v. United States, 113 Ct. Cl. 3, 82 F. Supp. 345 (1949); Brown & Son Electric Co. v. United States, 163 Ct. Cl." }, { "docid": "22147066", "title": "", "text": "States, 163 Ct. Cl. 465, 325 F.2d 446 (1963) (irregularity in bid award); Nesbitt v. United States, 170 Ct. Cl. 666, 345 F.2d 583 (1965), cert. denied, 383 U.S. 926 (1966) (refusal of contractor to meet requirements); Warren Bros. Roads Co. v. United States, 173 Ct. Cl. 714, 355 F.2d 612 (1965) (irregularity in the bid award); Coastal Cargo Co. v. United States, 173 Ct. Cl. 259, 351 F.2d 1004 (1965) (irregularity in bid award); Schlesinger v. United States, 182 Ct. Cl. 571, 390 F.2d 702 (1968) (plaintiff under investigation by Senate for procurement irregularities, and in technical default); Nolan Bros. v. United States, 186 Ct. Cl. 602, 405 F.2d 1250 (1969) (physical changes at site made performance impossible); G.C. Casebolt Co. v. United States, 190 Ct. Cl. 783, 421 F.2d 710 (1970) (irregularity in the bid award). These cases recognized that the termination for convenience clause was only to be applied where there was some change from the parties’ original bargain and was not to be applied as broadly as an untutored reading of the words might suggest. Especially, we point to Nesbitt, which quoted the \"from time to time” wording of the clause but specified in a footnote that the plaintiffs failure to perform in that case undoubtedly was a proper circumstance for the clause’s use, 170 Ct. Cl. at 670 and 670 n.3, 345 F.2d at 585-86 and 586 n.3; to Nolan, which said that it was \"entirely reasonable * * * [to invoke the clause for] a post-contract recognition that the job is impossible or too difficult to perform or too costly for the Government if pushed through to its conclusion,” 186 Ct. Cl. at 606, 405 F.2d at 1253; to Casebolt, where the court specifically recognized its obligation to see if the government’s directive to terminate the contract in that case \"could lawfully come under that clause,” 190 Ct. Cl. at 786, 421 F.2d at 712; and to Reiner, in which the court spoke in its broadest terms about the availability of the clause, that it could be used in a \"host of variable and" }, { "docid": "23127126", "title": "", "text": "When the Government is displeased with the contractor’s administration of an agreement, it may always sever contractual relations under the standard termination-for-convenience clause inserted in its contracts. John Reiner & Co. v. United States, 163 Ct. Cl. 381, 325 F. 2d 438 (1963), cert. denied, 377 U.S. 931 (1964). But if the United States seeks instead to annul a contract for fault, thereby leaving the contractor wholly uncompensated, it must have proper justification for such harsh consequences. Klein v. United States, 152 Ct. Cl. 8, 285 F. 2d 778 (1961); Nesbitt v. United States, 170 Ct. Cl. 666, 345 F. 2d 583 (1965), fn. 2. n. plaintiff’s damages A.. GENERAL STANDARD Having rejected each of the absolute defenses urged by the Government, we must determine the appropriate measure of damages incurred as a result of the improper cancellation. The position advanced by the defendant, and accepted by the Trial Commissioner, is that plaintiff is entitled only to the traditional remedy of damages given by this court for breach of an express contract. The purpose of that remedy is to place the party against which the breach has been com mitted in the position it would have held if the contract had been fully performed. Acme had suffered large losses in the performance of Contract 1213 at the time it was wrongly canceled by the defendant. According to projections, however, Acme would have been able to reduce its losses considerably had it been permitted to complete the contract. The Trial Commissioner therefore determined that plaintiff was entitled to recover any post-cancellation costs incurred as a result of the Government’s erroneous action, plus the amount by which it would have been able to decrease its losses through completion of the contract. In this way, the Commissioner reasoned, Acme would be given the same benefits it would have received had it been permitted to carry out the agreement. . Plaintiff’s main argument is that it is entitled to restitution as an alternative remedy. Under that standard of relief, a party whose contract has been repudiated or otherwise breached may, if he meets certain" }, { "docid": "2190349", "title": "", "text": "569-70 (1963); Nesbitt v. United States, supra, 170 Ct. Cl. at 671, 345 F. 2d at 586. Accordingly, the significant role of the first cause of action in plaintiff’s petition is to lay claim to the unearned profits which plaintiff cannot recover under the termination clause. All else is subsumed within the second cause of action testing the administrative award under that article. Since, however, the termination here was lawfully effected — as we have just held — it follows that plaintiff is not entitled to any unearned gain even though it might have recovered that component of damages if the convenience-termination were put aside. By agreeing to incorporation of the termination provision, the contractor necessarily gives up this aspect of the common law formula whenever the termination article becomes operative. The contractor acquiesces in the substitution of a contractual rule under which profit is allowed only on the work actually done. This cannot be the result, plaintiff says, where the Government has breached the contract — it cannot escape the normal common law consequences of its wrongful action by thereafter terminating the contract for its own convenience. The answer, we think, is that the convenience article was precisely intended to allow the Government to avoid the consequence that it pay unearned profits. See G. L. Christian & Associates v. United States, supra, 160 Ct. Cl. at 15-16, 312 F. 2d at 426-27. In the cases in this area that have gone before, the Government’s action always amounted to a breach, as seen at the time, but nevertheless it was held that the termination clause could later be invoked and the recovery controlled by the termination formula, i.e. no unearned profits. In College Point Boat Corp. v. United States, supra 267 U.S. at 15, the Government simply told the contractor to stop work, and the Court characterized this as “an anticipatory breach.” The right to cancel under the World War I statute (which was the equivalent of the convenience-termination clause) “was asserted later, in court” and “operated to curtail the damages recoverable.” Id. at 16. In John Reiner & Co." }, { "docid": "5679294", "title": "", "text": "convenience termination (see finding 3), and it was limited to cases in which the contractor’s default might be excusable due to causes beyond his control. Consequently, the termination constituted a common law breach of contract. See Nolan Bros. v. United States, 186 Ct. Cl. 602, 609, 405 F. 2d 1250, 1254 (1969), in which this court said: * * * In John Reiner & Co. v. United States [citation omitted], the Government canceled the contract outright (without any payment at all) because the General Accounting Office had said the award was improper; we held the award legal and the cancellation baseless but that the termination-clause measure-of-recovery applied ; if that article were absent or inapplicable, the defendant's action would have been treated exactly as a common law breach. * * * [Emphasis added.] Accordingly, plaintiff’s recovery is to be measured by its anticipated profits from the contract. Cf. David J. Joseph Co. v. United States, 113 Ct. Cl. 3, 82 F. Supp. 345 (1949); Brown & Son Electric Co. v. United States, 163 Ct. Cl. 465, 325 F. 2d 446 (1963); Albano Cleaners, Inc. v. United States, 197 Ct. Cl. 450, 455 F. 2d 556 (1972). Prior to trial, defendant asserted that no recovery should be allowed because plaintiff was not ready, willing and able to perform the contract on May 22, 1967, citing United States v. Penn Fowndry & Mfg. Co., 337 U.S. 198 (1949). Now, however, the government admits, and I have so found, that plaintiff would have been ready on time but for the government’s breach. Therefore, the only remaining task is to determine the amount of plaintiff’s anticipated profit. In this regard, I have considered (1) plaintiff’s actual expenditures for 1969, the first year in which its books attributed expenses to individual aircraft, (2) the estimated costs of operating plaintiff’s business in 1967, (3) the performances of plaintiff’s competitors who had similar contracts with the Bureau of Land Management in 1967, and (4) the testimony of both parties’ expert witnesses. Based on these factors and the evidence presented, I have concluded that plaintiff’s reasonably anticipated profit" }, { "docid": "2190346", "title": "", "text": "denied, 377 U.S. 931 (1964); Commercial Cable Co. v. United States, 170 Ct. Cl. 813, 821 (1965); Schlesinger v. United States, 182 Ct. Cl. 571, 581, 390 F. 2d 702, 707 (1968). If, as plaintiff now seems to maintain, the spur to invocation of this right of termination was the defendant’s realization that its plans and specifications were faulty, reliance on that motive would not be improper or an abuse of discretion. The mere existence of a default by the Government would not bar convenience-termination (College Point Boat Corp. v. United States, 267 U.S. 12, 16 (1925)) and plaintiff had not treated the alleged breach as ending the entire agreement. Among the “host of variable and unspecified situations” calling for closing of the work under a still-existing contract (John Reiner & Co. v. United States, supra, 163 Ct. Cl. at 390, 325 F. 2d at 442) it is entirely reasonable to include a post-contract recognition that the job is impossible or too difficult to perform or too costly for the Government if pushed through to its conclusion. That would be a characteristic case for a convenience-termination. The defendant could properly wish to cut unnecessary losses 'as early as possible and to consider what drastic changes might be needed in its plans. Certainly the Government would not be compelled to see the contract work through to the bitter end, no matter what the cost or the trouble or the waste in resources. Bather, in that situation it would be as much in the Government’s “best interests” to use the termination clause as we have held it to be to avoid a conflict with the Comptroller General (e.g. John Reiner & Co. v. United States, supra) or with Congress (Schlesinger v. United States, supra) or in order to employ a contractor with greater production facilities (Nesbitt v. United States, 170 Ct. Cl. 666, 345 F. 2d 583 (1965), cert. denied, 383 U.S. 926 (1966)). The contractor’s protection on a convenience-termination is that he gets full reimbursement of his costs, together with a measure of profit. He becomes entitled to the “cost of" } ]

[ { "docid": "18502876", "title": "", "text": "debtor bankruptcy estate. This jurisdictional inquiry did not involve an inquiry into how the bankruptcy court reached that judgment, or whether that judgment was correct, and therefore does not implicate the merits of the claim itself. Furthermore, although bankruptcy courts have jurisdiction over the matter, this fact alone does not determine what law controls the disposition of the tax liability issue. See Robinson, 918 F.2d at 588. We now turn to the merits of Wolverine’s argument, which assails the district court’s conclusion that MESC may assign the debtor’s experience rating, including the debtor’s negative reserve balance and liability for former employees, to a purchaser of assets in a sale free and clear of liens, claims, and interests. As this argument raises a question of law, we review de novo the legal conclusions of the bankruptcy and district courts. In re Edward M. Johnson & Assocs., 845 F.2d 1395, 1398 (6th Cir.1988); Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). The parties are in agreement that under MESA a transfer of the assets of a business to another employing unit transfers all or part of that business’s rating account to the new employer. See Mich.Comp.Laws Ann. § 421.22; In re Pine Knob, 20 B.R. at 716. Conceding that Michigan law imposes successor liability, Wolverine relies on the argument that MESA is preempted by the federal Bankruptcy Code when the transfer is conducted pursuant to a reorganization plan confirmed in a bankruptcy proceeding. Wolverine maintains that the sale to JOSI precludes MESC from assigning the debtor’s contribution rate to the successor because the experience rating is an “interest” that was extinguished in a sale pursuant to 11 U.S.C. § 363(f) of the Bankruptcy Code, which provides for sales “free and clear of any interest in such property.” We agree with the district court that the experience rating is not an “interest” within the meaning of section 363(f), and therefore the debtor’s rating survives the sale of the radio station to JOSI. The Supreme Court set out the general law of preemption in Louisiana Public Service Comm’n v. Federal Communications Comm’n, 476" } ]

[ { "docid": "12652861", "title": "", "text": "MEMORANDUM OF DECISION ON MOTION TO ENFORCE ORDER AUTHORIZING SALE FRANK J. BAILEY, Bankruptcy Judge. OPK Biotech LLC (“OPK”), as purchaser of the debtor’s assets in a court-authorized sale free and clear of all interests under 11 U.S.C. § 363(b) and (f), has moved for enforcement of the sale order against the Massachusetts Department of Workforce Development, Division of Unemployment Assistance (the “DUA”). OPK contends that the DUA has been violating the § 363(f) features of the order by charging OPK for contributions to the state’s unemployment compensation fund according to a rate that imputes to OPK, as purchaser of assets from the debtor, certain attributes of the debtor — known collectively in distilled form as its “experience rating” — resulting in a higher contribution rate than would otherwise obtain. The DUA responds (i) that it had no notice of the sale motion and therefore may yet be heard on its objection to sale pursuant to § 363(f), (ii) that the debtor was not entitled to authority under § 363(f) to sell free and clear of interests, and (iii) that the debtor’s experience rating is not an “interest” within the meaning of § 363(f). For the reasons set forth below, I hold that the DUA was not afforded adequate notice, that the DUA has nonetheless articulated no valid basis on which the court might have held that the debtor was not entitled to authority under § 363(f) to sell free and clear of interests, and that the debtor’s experience rating is an “interest” within the meaning of § 363(f) that, in view of the Sale Order’s authorization under § 363(f), the Commonwealth may not apply to OPK. FACTS AND PROCEDURAL HISTORY The debtor, known at the time of its bankruptcy filing as Biopure Corporation but now known as PBBPC, Inc. (“the Debtor”), filed its petition for relief under Chapter 11 of the Bankruptcy Code on July 16, 2009. That same day the Debtor also filed a motion for order approving sale of substantially all of its assets free and clear of liens, claims, and encumbrances and for approval of related" }, { "docid": "12652876", "title": "", "text": "the Massachusetts Division of Unemployment Assistance, it shall be mailed to” the DUA at its specified Stamford Street address in Boston. The specified address indicated “Bankruptcy Unit” and “Attn: Chief Counsel.” The DUA was entitled to rely on this rule. Where notice was not given in accordance with this rule, and the DUA had no actual notice, I must conclude that the Sale Order does not preclude the DUA from now challenging the Debtor’s entitlement to authority under § 363(f) to sell its assets free and clear of any interest in those assets whereby the DUA might tax the buyer according to the experience rating of the Debtor. ii. Section 363(m) In the alternative, OPK argues that the Sale Order is protected from collateral attack by 11 U.S.C. § 363(m). This argument requires a difficult decision as to whether 11 U.S.C. § 363(m), and the policy of finality it embodies, should override constitutional concerns about lack of notice. However, were the Court to find that the Sale Order is now subject to collateral attack and reconsider the merits in light of the objections and arguments the DUA now adduces, the Court would, for the reasons set forth below, conclude (i) that authority to sell pursuant to § 363(f) was properly granted and (ii) that the debtor’s experience rating is an “interest” within the meaning of § 363(f) that, in view of the authorization under § 363(f), the Commonwealth may not apply to OPK. Accordingly, the court may sustain the Sale Order on the merits and need not address the § 363(m) issue. iii. Section 363(f) The DUA’s challenges to the sale order are two: (i) that its right under state law to tax OPK as a successor to the Debtor is not an “interest” within the meaning of § 363(f), and therefore § 363(f) cannot have provided authority for the provisions in the sale order that OPK now seeks to enforce; and (ii) that the none of the five conditions for authorization under § 363(f) was satisfied, such that authorization under § 363(f) should not have entered at all. I" }, { "docid": "12652877", "title": "", "text": "reconsider the merits in light of the objections and arguments the DUA now adduces, the Court would, for the reasons set forth below, conclude (i) that authority to sell pursuant to § 363(f) was properly granted and (ii) that the debtor’s experience rating is an “interest” within the meaning of § 363(f) that, in view of the authorization under § 363(f), the Commonwealth may not apply to OPK. Accordingly, the court may sustain the Sale Order on the merits and need not address the § 363(m) issue. iii. Section 363(f) The DUA’s challenges to the sale order are two: (i) that its right under state law to tax OPK as a successor to the Debtor is not an “interest” within the meaning of § 363(f), and therefore § 363(f) cannot have provided authority for the provisions in the sale order that OPK now seeks to enforce; and (ii) that the none of the five conditions for authorization under § 363(f) was satisfied, such that authorization under § 363(f) should not have entered at all. I begin with the latter argument, a. Satisfaction of a § 363(f) Condition Section 363(f) permits a trustee, or a debtor in possession exercising a trustee’s powers pursuant to 11 U.S.C. 1107(a), to sell property free and clear of an interest in such property provided at least one of five enumerated conditions is satisfied. OPK says that two were satisfied with respect to the DUA. One is that “such entity could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest.” 11 U.S.C. § 363(f)(5). The Court agrees that the interest in question, if it is an interest at all, is one for which the DUA could be compelled to accept a money satisfaction. The interest is a right of taxation, a right that is usually, ordinarily, preferredly, and probably exclusively satisfied precisely by the payment of money. Certainly the DUA could be compelled to accept a money satisfaction. Despite its disagreement, the DUA has articulated no argument to the contrary. I therefore conclude that § 363(f)(5) is satisfied and" }, { "docid": "12652875", "title": "", "text": "as synonymous with final order) but a valid judgment. A judgment obtained without notice to a party is invalid as against that party and therefore can have no preclusive effect as to that party. It does not help that the final order contains a finding, as this one did, that “proper, timely, adequate and sufficient notice ... has been provided ... and no other or further notice is required.” Such a finding, too, where made without notice to the party to be bound, is no more valid or preclusive than the judgment itself. In this instance, the DUA contends that it was entitled to notice of the Sale Motion. OPK does not contend otherwise. OPK argues that, in view of G.L. c. 151A, § 14A, it gave proper notice to the DUA by serving the attorney general, but it does not deny that the DUA was entitled to notice. It is therefore undisputed that the DUA was entitled to notice. By local rule, this court directed that “[wjhenever notice is required to be given to the Massachusetts Division of Unemployment Assistance, it shall be mailed to” the DUA at its specified Stamford Street address in Boston. The specified address indicated “Bankruptcy Unit” and “Attn: Chief Counsel.” The DUA was entitled to rely on this rule. Where notice was not given in accordance with this rule, and the DUA had no actual notice, I must conclude that the Sale Order does not preclude the DUA from now challenging the Debtor’s entitlement to authority under § 363(f) to sell its assets free and clear of any interest in those assets whereby the DUA might tax the buyer according to the experience rating of the Debtor. ii. Section 363(m) In the alternative, OPK argues that the Sale Order is protected from collateral attack by 11 U.S.C. § 363(m). This argument requires a difficult decision as to whether 11 U.S.C. § 363(m), and the policy of finality it embodies, should override constitutional concerns about lack of notice. However, were the Court to find that the Sale Order is now subject to collateral attack and" }, { "docid": "12652872", "title": "", "text": "OPK contends that it was improper even under Massachusetts law, G.L. c. 151A, § 14(n), for the DUA to apply successor status to OPK. OPK would thus have this court review the DUA’s determination on the application of Massachusetts law. When asked at the hearing on this motion whether this last argument wasn’t properly addressed to the state courts, as it does not arise in this case and involves nothing more than the proper interpretation and application of state law, OPK’s counsel stated that OPK was not in fact asking this court to determine the issue. I therefore construe this argument as withdrawn (or perhaps as never having been advanced at all) and need not address the substantial concerns about comity and jurisdiction to which it gives rise. ii. DUA The DUA responds as follows. First, where the Bankruptcy Court, through its local rules, required service on the DUA at a specified address, the Debtor failed to serve the Sale Motion on the DUA at that address, and the DUA did not otherwise receive notice of the Sale Motion, notice was inadequate, and therefore the DUA is not now precluded from relitigating the propriety of relief under § 363(f) with respect to the “interest” of the DUA (if it is appropriately called an interest at all) that the present motion places in issue. Second, the protections of § 363(m) are not available here because they may not be invoked against an interest holder that was not afforded notice of the sale. Third, the conditions for sale free and clear of an interest under § 363(f) have not been met: where the DUA received no notice, its lack of objection may not be deemed consent under § 363(f)(2); and a money satisfaction is not possible. Fourth, the Debtor’s experience rating is not an interest within the meaning of § 363(f), and therefore the bankruptcy court lacks authority to confer on OPK protection from taxation on the basis of the Debtor’s experience rating according to the normal operation of state law. iii. OPK’s Reply At the hearing on this motion, OPK answered" }, { "docid": "12652885", "title": "", "text": "that Wolverine was wrongly decided. As in Leckie Smokeless, the relationship between the asset and the right in question is dispositive. The clear relationship between the DUA’s right to tax according to the debtor’s experience rating and the asset transfer on which that right is predicated makes the DUA’s right an interest within the meaning § 363(f). Section 363(f) therefore applies to the DUA’s interest. As OPK argues and the DUA does not dispute, where § 363(f) does apply, it preempts any state law to the contrary. The sale order thus preempts the application of successor status to OPK under G.L. c. 151A, § 14. CONCLUSION Accordingly, the Court will enter an order (i) declaring that the sale to OPK pursuant to the Sale Order was free and clear of the Debtor’s experience rate and contribution rate as those terms are defined in Mass. Gen. Laws c. 151A, § 14, and (ii) requiring the DUA to refund to OPK overpayments attributable to its attribution to OPK of the Debtor’s experience rate. To that end the Court will schedule a further hearing to determine what further process may be necessary to quantify the refund. OPK further requests that the court compel the DUA to assign to OPK a 2.89% contribution rate as an employer newly subject to G.L. c. 151A, retroactive to the Sale Date, as such contribution rate may be adjusted from time to time in accordance with OPK’s experience rate without regard to the Debtor’s pre-sale ratings. The court cannot dictate to the DUA what rate it should apply on a prospective basis: provided the DUA’s determination of that issue does not run afoul of the Sale Order, the resolution of that issue will have no bearing on this bankruptcy case and therefore is outside this court’s subject matter jurisdiction. . \"Encumbrances” is a defined term meaning \"any options, pledges, security interests, claims, equities, reservations, third party rights, rights of first refusal, voting trusts or similar arrangements, liens, trusts or deemed trusts (whether contractual, statutory or otherwise), charges, including court-ordered charges, or other encumbrances or restrictions on or conditions" }, { "docid": "12652867", "title": "", "text": "limited to, any Successor Liabilities in respect of the Successor Liability Documents, Statutes and Claims or otherwise.” Sale Order, ¶ 9. • “The Purchaser [OPK] is a good faith purchaser within the meaning of section 363(m) of the Bankruptcy Code and, as such, is entitled to the full protections of section 363(m) of the Bankruptcy Code.” Sale Order, ¶ 17. The language of each of these findings, orders, and decrees in the Sale Order was substantially in the form of — indeed in most respects identical to — the language of the proposed sale order that the Debtor had appended to the Sale Motion. The sale of the purchased assets to OPK closed in two phases in September 2009, and OPK thereafter commenced doing business in Massachusetts. After being informed that OPK had acquired the assets of the Debtor, the DUA issued a notice informing OPK that as a result of the transfer of substantially all assets of the Debtor to OPK, the DUA had determined, subject to a right of appeal, that OPK would be considered a “successor employer” to the Debtor, that the account and experience rating of the Debtor would therefore be transferred to OPK, and that OPK’s contribution rate for 2009 and 2010 would accordingly be 12.27 percent. The DUA continued to apply the same rate in 2011. OPK contends, and the DUA does not deny, that this is a substantially steeper rate than would have applied hade OPK not been burdened with the Debtor’s account and experience rating. OPK appealed the DUA’s determination, and the DUA informed OPK that it does not intend to change its determination. OPK and the DUA have agreed to postpone further appeal hearings at the agency level pending disposition of the present motion. OPK has been paying the DUA based on the higher contribution rate pending resolution of the present motion. OPK alleges that as of March 3, 2011, it had made $289,680.02 in contributions to the DUA based on the 12.27 percent contribution rate, an amount that OPK contends exceeds the appropriately assessed portion thereof by $221,782.59. By the" }, { "docid": "12652886", "title": "", "text": "Court will schedule a further hearing to determine what further process may be necessary to quantify the refund. OPK further requests that the court compel the DUA to assign to OPK a 2.89% contribution rate as an employer newly subject to G.L. c. 151A, retroactive to the Sale Date, as such contribution rate may be adjusted from time to time in accordance with OPK’s experience rate without regard to the Debtor’s pre-sale ratings. The court cannot dictate to the DUA what rate it should apply on a prospective basis: provided the DUA’s determination of that issue does not run afoul of the Sale Order, the resolution of that issue will have no bearing on this bankruptcy case and therefore is outside this court’s subject matter jurisdiction. . \"Encumbrances” is a defined term meaning \"any options, pledges, security interests, claims, equities, reservations, third party rights, rights of first refusal, voting trusts or similar arrangements, liens, trusts or deemed trusts (whether contractual, statutory or otherwise), charges, including court-ordered charges, or other encumbrances or restrictions on or conditions to transfer or assignment of any kind (including, without limitation to the generality of the foregoing, restrictions or conditions on or to the transfer, assignment or renewal of licenses, permits, registrations and authorizations or approvals of or with respect to governmental units and instrumentalities), whether direct or indirect, absolute or contingent, matured or unmatured, liquidated or unliquidated, perfected, registered or filed, secured or unsecured, on or against the Purchased Assets owned by the Debtor.” Sale Order, ¶ O. . \"Successor Liability Documents, Statutes and Claims” is a defined term that includes \"claims that might ... arise under or pursuant to ... state unemployment compensation laws[.]” Sale Order, ¶ R. . Counsel answered: “The reason we raised it is not for the Court to make a determination under state law, but to get the Court comfortable that what we’re asking fe — may not be contrary to state law.” Transcript of Hearing of June 23, 2011, p. 25. . The preclusive effect of the Sale Order, a federal order, is therefore determined by federal law. Monarch" }, { "docid": "12652868", "title": "", "text": "be considered a “successor employer” to the Debtor, that the account and experience rating of the Debtor would therefore be transferred to OPK, and that OPK’s contribution rate for 2009 and 2010 would accordingly be 12.27 percent. The DUA continued to apply the same rate in 2011. OPK contends, and the DUA does not deny, that this is a substantially steeper rate than would have applied hade OPK not been burdened with the Debtor’s account and experience rating. OPK appealed the DUA’s determination, and the DUA informed OPK that it does not intend to change its determination. OPK and the DUA have agreed to postpone further appeal hearings at the agency level pending disposition of the present motion. OPK has been paying the DUA based on the higher contribution rate pending resolution of the present motion. OPK alleges that as of March 3, 2011, it had made $289,680.02 in contributions to the DUA based on the 12.27 percent contribution rate, an amount that OPK contends exceeds the appropriately assessed portion thereof by $221,782.59. By the present motion, OPK seeks an order (i) declaring that the sale to OPK pursuant to the Sale Order was free and clear of the Debtor’s experience rate and contribution rate as those terms are defined in Mass. Gen. Laws c. 151A, § 14, (ii) requiring the DUA to refund to OPK over-payments attributable to its attribution to OPK of the Debtor’s experience rate, and (in) compelling the DUA to a assign to OPK a 2.89% contribution rate as an employer newly subject to Mass. Gen. Laws Chapter 151A retroactive to the Sale Date, as such contribution rate may be adjusted from time to time in accordance with OPK’s experience rate without regard to the Debtor’s pre-sale ratings. The DUA opposes the motion. The Court took the matter under advisement without an evi-dentiary hearing, the parties being in agreement as to the relevant facts as recounted above. POSITIONS OF THE PARTIES i. OPK OPK advances two lines of argument. The first is preclusion: where the Attorney General of the Commonwealth of Massachusetts was served with the" }, { "docid": "12652862", "title": "", "text": "of interests, and (iii) that the debtor’s experience rating is not an “interest” within the meaning of § 363(f). For the reasons set forth below, I hold that the DUA was not afforded adequate notice, that the DUA has nonetheless articulated no valid basis on which the court might have held that the debtor was not entitled to authority under § 363(f) to sell free and clear of interests, and that the debtor’s experience rating is an “interest” within the meaning of § 363(f) that, in view of the Sale Order’s authorization under § 363(f), the Commonwealth may not apply to OPK. FACTS AND PROCEDURAL HISTORY The debtor, known at the time of its bankruptcy filing as Biopure Corporation but now known as PBBPC, Inc. (“the Debtor”), filed its petition for relief under Chapter 11 of the Bankruptcy Code on July 16, 2009. That same day the Debtor also filed a motion for order approving sale of substantially all of its assets free and clear of liens, claims, and encumbrances and for approval of related procedures (the “Sale Motion”). The Sale Motion included the following demand for relief: The Debtor requests authority to sell the [assets] free and clear of liens, claims, charges, security interests, restrictions and encumbrances of any kind or nature (collectively, “Encumbrances”) to the fullest extent permitted by the Bankruptcy Code, with such Encumbrances, if any, to attach to the net proceeds of the [asset sale], as applicable. The Sale Motion also included a proposed sale order and requested its entry “substantially in the form attached hereto.” The Debtor served notice of the sale Motion on the Office of the Attorney General (“OAG”) for the Commonwealth of Massachusetts but did not otherwise serve notice on the DUA. Then as now, this court’s local rules specified: (f) Whenever notice is required to be given to the Massachusetts Division of Unemployment Assistance, it shall be mailed to: Commonwealth of Massachusetts Division of Unemployment Assistance Bankruptcy Unit, 5th Floor, Attn: Chief Counsel 19 Stamford Street Boston, MA 02114-2502 MLRB App. 2, at paragraph (f). Neither the DUA nor the Attorney" }, { "docid": "12652863", "title": "", "text": "procedures (the “Sale Motion”). The Sale Motion included the following demand for relief: The Debtor requests authority to sell the [assets] free and clear of liens, claims, charges, security interests, restrictions and encumbrances of any kind or nature (collectively, “Encumbrances”) to the fullest extent permitted by the Bankruptcy Code, with such Encumbrances, if any, to attach to the net proceeds of the [asset sale], as applicable. The Sale Motion also included a proposed sale order and requested its entry “substantially in the form attached hereto.” The Debtor served notice of the sale Motion on the Office of the Attorney General (“OAG”) for the Commonwealth of Massachusetts but did not otherwise serve notice on the DUA. Then as now, this court’s local rules specified: (f) Whenever notice is required to be given to the Massachusetts Division of Unemployment Assistance, it shall be mailed to: Commonwealth of Massachusetts Division of Unemployment Assistance Bankruptcy Unit, 5th Floor, Attn: Chief Counsel 19 Stamford Street Boston, MA 02114-2502 MLRB App. 2, at paragraph (f). Neither the DUA nor the Attorney General filed a response to the sale motion. Though OPK contends that its service on the OAG was effectively service on the DUA, OPK does not contend that the DUA received notice of the Sale Motion other than by virtue of the service effected on the OAG. OPK does not contend that the DUA had actual notice. At an auction held on August 18, 2009 in accordance with approved bidding procedures for the sale of substantially all of the Debtor’s assets, OPK prevailed with a bid of $4,050,000. On August 20, 2009, this Court entered the requested sale order approving the sale to OPK (“the Sale Order”). The Sale Order included the following relevant findings: • “Proper, timely, adequate and sufficient notice of the Bidding Procedures, the Auction, the Sale Motion and the hearing on the foregoing has been provided in accordance with sections 105(a), 363 and 365 of the Bankruptcy Code and Bankruptcy Rules 2002, 6004 and 6006, and no other or further notice is required.” Sale Order, ¶ G. • OPK is a" }, { "docid": "12652873", "title": "", "text": "of the Sale Motion, notice was inadequate, and therefore the DUA is not now precluded from relitigating the propriety of relief under § 363(f) with respect to the “interest” of the DUA (if it is appropriately called an interest at all) that the present motion places in issue. Second, the protections of § 363(m) are not available here because they may not be invoked against an interest holder that was not afforded notice of the sale. Third, the conditions for sale free and clear of an interest under § 363(f) have not been met: where the DUA received no notice, its lack of objection may not be deemed consent under § 363(f)(2); and a money satisfaction is not possible. Fourth, the Debtor’s experience rating is not an interest within the meaning of § 363(f), and therefore the bankruptcy court lacks authority to confer on OPK protection from taxation on the basis of the Debtor’s experience rating according to the normal operation of state law. iii. OPK’s Reply At the hearing on this motion, OPK answered the DUA’s contention that it had not received adequate notice by citing to state law, G.L. c. 151A, § 42A, which states: “In any action to enforce any provision of this chapter, or any criminal proceedings thereunder, the commissioner shall be represented by the attorney general, or by any attorney at law designated by the attorney general for such purpose.” OPK contends that the Sale Motion concerned enforcement, that the attorney general represented the commissioner (the director of the DUA), and therefore that it was appropriate to serve the OAG and not the DUA at the address specified by local rule. DISCUSSION i. Notice and Preclusion OPK’s preclusion argument is essentially one of res judicata, also known as claim preclusion. OPK argues that the Debtor’s authority to sell free and clear of interests under § 363(f) was determined by the Sale Order, a final order of this court, and that order now binds the DUA. I must reject this argument. The first requirement of res judicata is not simply a judgment (which I use here" }, { "docid": "12652871", "title": "", "text": "to the Sale Motion and therefore is deemed to have consented, which satisfies § 363(f)(2) and (b) because the DUA could be compelled in a legal proceeding to accept a money satisfaction of its interest, which satisfies § 363(f)(5); (ii) that the Debtor’s experience rating under Massachusetts law is an “interest” in property of the bankruptcy estate within the meaning of § 363(f), and (iii) that the successor liability provision in the Commonwealth’s unemployment compensation statute is, by operation of the Supremacy Clause of the U.S. Constitution, preempted both by § 363(f) of the Bankruptcy Code and by fundamental policies and principles of the Bankruptcy Code. These preempt the application of state law against OPK in a manner that visits upon OPK the experience rating of the Debtor (however valid that application would have been had this sale occurred outside of bankruptcy). In addition to these two lines of argument, OPK advanced a third in its motion: that Massachusetts law itself precludes the treatment of OPK as a successor to the Debtor. By this argument, OPK contends that it was improper even under Massachusetts law, G.L. c. 151A, § 14(n), for the DUA to apply successor status to OPK. OPK would thus have this court review the DUA’s determination on the application of Massachusetts law. When asked at the hearing on this motion whether this last argument wasn’t properly addressed to the state courts, as it does not arise in this case and involves nothing more than the proper interpretation and application of state law, OPK’s counsel stated that OPK was not in fact asking this court to determine the issue. I therefore construe this argument as withdrawn (or perhaps as never having been advanced at all) and need not address the substantial concerns about comity and jurisdiction to which it gives rise. ii. DUA The DUA responds as follows. First, where the Bankruptcy Court, through its local rules, required service on the DUA at a specified address, the Debtor failed to serve the Sale Motion on the DUA at that address, and the DUA did not otherwise receive notice" }, { "docid": "12652879", "title": "", "text": "that there existed, as against the DUA, one of the five predicate conditions. b. “Interest” under § 363(f) The other issue is whether the right of taxation that the DUA is charged with enforcing is an “interest” in property of the estate within the meaning of § 363(f). “Interest” is not defined either in § 363(f) or elsewhere in the Bankruptcy Code. The “interest” in question is the right of the Commonwealth of Massachusetts, under its unemployment compensation statute, G.L. c. 151A, § 14(n), to tax a “successor employer” — an employer that is the transferee of the entire organization, trade or business of an employer, or substantially all the assets thereof — according to the experience rating of the assignor employer. For purposes of this analysis, I assume without deciding that OPK is a successor employer within the meaning of this statute; I note that OPK disputes the DUA’s determination to that effect. Here, it is undisputed that the interest in question is not a lien or a right to take specific assets, or any assets, in satisfaction of a claim. It is also undisputed that, by this interest, the DUA is not attempting to collect from OPK a debt owed by the Debtor. The “interest” merely determines the rate at which OPK will be taxed on its own account. For these reasons, if the DUA’s right of taxation is an interest, it is at best atypical. Still, there is a good reason to view this right as an interest in estate assets: it imposes a debtor’s experience rating on the buyer precisely because, and only because, the buyer purchased assets of the bankruptcy estate. By operation of the state statute, the debtor’s experience rating travels with the assets and encumbers their purchaser. On virtually identical facts arising from application of the successor employer provisions of Michigan unemployment compensation law, the Sixth Circuit Court of Appeals held that the debtor’s experience rating was not an “interest” within the meaning of § 363(f). Michigan Employment Security Commission v. Wolverine Radio Company, Inc. (In re Wolverine Radio Company), 930 F.2d 1132," }, { "docid": "12652870", "title": "", "text": "Sale Motion and neither the Commonwealth nor the DUA objected, the DUA has irrevocably waived its right to oppose the Sale Order and is now estopped from doing so; and the DUA in therefore bound by the provisions in the Sale Order, which OPK contends clearly enjoin the conduct at issue. In an alternate version of this preclusion argument, OPK also contends that the Sale Order is protected from attack and reconsideration by § 363(m) of the Bankruptcy Code (protecting the validity of a sale to a good faith purchaser from the effects of reversal or modification on appeal where the sale was not stayed pending appeal). If the Court finds that the DUA is not precluded from challenging the Sale Motion’s request for authority to sell free and clear of interests under 11 U.S.C. § 363(f), then, In the alternative, OPK argues: (i) that the Sale Order’s authorization under § 363(f) was properly granted and should be sustained as against any objection thereto by the DUA, both (a) because the DUA did not object to the Sale Motion and therefore is deemed to have consented, which satisfies § 363(f)(2) and (b) because the DUA could be compelled in a legal proceeding to accept a money satisfaction of its interest, which satisfies § 363(f)(5); (ii) that the Debtor’s experience rating under Massachusetts law is an “interest” in property of the bankruptcy estate within the meaning of § 363(f), and (iii) that the successor liability provision in the Commonwealth’s unemployment compensation statute is, by operation of the Supremacy Clause of the U.S. Constitution, preempted both by § 363(f) of the Bankruptcy Code and by fundamental policies and principles of the Bankruptcy Code. These preempt the application of state law against OPK in a manner that visits upon OPK the experience rating of the Debtor (however valid that application would have been had this sale occurred outside of bankruptcy). In addition to these two lines of argument, OPK advanced a third in its motion: that Massachusetts law itself precludes the treatment of OPK as a successor to the Debtor. By this argument," }, { "docid": "12652884", "title": "", "text": "assets being transferred, the appellants’ rights were interests: [W]e hold that the Fund’s and Plan’s rights to collect premium payments from Appellees constitute interests in the assets that Appellees now wish to sell, or have sold already. Those rights are grounded, at least in part, in the fact that those very assets have been employed for coal-mining purposes: if Ap-pellees had never elected to put their assets to use in the coal-mining industry, and had taken up business in an altogether different area, the Plan and Fund would have no right to seek premium payments from them. Because there is therefore a relationship between (1) the Fund’s and Plan’s rights to demand premium payments from Appellees and (2) the use to which Appellees put their assets, we find that the Fund and Plan have interests in those assets within the meaning of section 363(f). Id. There is no binding precedent on the issue in the First Circuit. I am satisfied that the position of the Fourth Circuit in Leckie Smokeless is the correct one and that Wolverine was wrongly decided. As in Leckie Smokeless, the relationship between the asset and the right in question is dispositive. The clear relationship between the DUA’s right to tax according to the debtor’s experience rating and the asset transfer on which that right is predicated makes the DUA’s right an interest within the meaning § 363(f). Section 363(f) therefore applies to the DUA’s interest. As OPK argues and the DUA does not dispute, where § 363(f) does apply, it preempts any state law to the contrary. The sale order thus preempts the application of successor status to OPK under G.L. c. 151A, § 14. CONCLUSION Accordingly, the Court will enter an order (i) declaring that the sale to OPK pursuant to the Sale Order was free and clear of the Debtor’s experience rate and contribution rate as those terms are defined in Mass. Gen. Laws c. 151A, § 14, and (ii) requiring the DUA to refund to OPK overpayments attributable to its attribution to OPK of the Debtor’s experience rate. To that end the" }, { "docid": "12652880", "title": "", "text": "any assets, in satisfaction of a claim. It is also undisputed that, by this interest, the DUA is not attempting to collect from OPK a debt owed by the Debtor. The “interest” merely determines the rate at which OPK will be taxed on its own account. For these reasons, if the DUA’s right of taxation is an interest, it is at best atypical. Still, there is a good reason to view this right as an interest in estate assets: it imposes a debtor’s experience rating on the buyer precisely because, and only because, the buyer purchased assets of the bankruptcy estate. By operation of the state statute, the debtor’s experience rating travels with the assets and encumbers their purchaser. On virtually identical facts arising from application of the successor employer provisions of Michigan unemployment compensation law, the Sixth Circuit Court of Appeals held that the debtor’s experience rating was not an “interest” within the meaning of § 363(f). Michigan Employment Security Commission v. Wolverine Radio Company, Inc. (In re Wolverine Radio Company), 930 F.2d 1132, 1145-49 (6th Cir.1991). The court emphasized four factors: (i) that the unemployment tax liability arose only by virtue of the successor entity’s post-petition employment of workers; (ii) that the tax liability bore no relationship to the assignor employer’s status as a debtor involved in bankruptcy proceedings; (iii) that Michigan would have been free to impose successor status on the assignee by means unconnected to the assignment of assets; and (iv) “[w]e see no reason to hold that the Bankruptcy Code provides [the debtor’s assignee] with a more preferable tax rate than employers who purchase the assets of a predecessor not in bankruptcy.” Id. at 1149. OPK contends that the Sixth Circuit later rejected Wolverine’s narrow interpretation of “interest” in Al Perry Enterprises, Inc. v. Appalachian Fuels, LLC, 503 F.3d 538, 543 (6th Cir.2007), but I disagree; Al Perry does not address of the meaning of “interest.” Nonetheless, the justifications offered in Wolverine are unsatisfying. As to the first, it simply is not the case that the successor’s unemployment tax liability arose solely from the successor’s" }, { "docid": "12652869", "title": "", "text": "present motion, OPK seeks an order (i) declaring that the sale to OPK pursuant to the Sale Order was free and clear of the Debtor’s experience rate and contribution rate as those terms are defined in Mass. Gen. Laws c. 151A, § 14, (ii) requiring the DUA to refund to OPK over-payments attributable to its attribution to OPK of the Debtor’s experience rate, and (in) compelling the DUA to a assign to OPK a 2.89% contribution rate as an employer newly subject to Mass. Gen. Laws Chapter 151A retroactive to the Sale Date, as such contribution rate may be adjusted from time to time in accordance with OPK’s experience rate without regard to the Debtor’s pre-sale ratings. The DUA opposes the motion. The Court took the matter under advisement without an evi-dentiary hearing, the parties being in agreement as to the relevant facts as recounted above. POSITIONS OF THE PARTIES i. OPK OPK advances two lines of argument. The first is preclusion: where the Attorney General of the Commonwealth of Massachusetts was served with the Sale Motion and neither the Commonwealth nor the DUA objected, the DUA has irrevocably waived its right to oppose the Sale Order and is now estopped from doing so; and the DUA in therefore bound by the provisions in the Sale Order, which OPK contends clearly enjoin the conduct at issue. In an alternate version of this preclusion argument, OPK also contends that the Sale Order is protected from attack and reconsideration by § 363(m) of the Bankruptcy Code (protecting the validity of a sale to a good faith purchaser from the effects of reversal or modification on appeal where the sale was not stayed pending appeal). If the Court finds that the DUA is not precluded from challenging the Sale Motion’s request for authority to sell free and clear of interests under 11 U.S.C. § 363(f), then, In the alternative, OPK argues: (i) that the Sale Order’s authorization under § 363(f) was properly granted and should be sustained as against any objection thereto by the DUA, both (a) because the DUA did not object" }, { "docid": "12652878", "title": "", "text": "begin with the latter argument, a. Satisfaction of a § 363(f) Condition Section 363(f) permits a trustee, or a debtor in possession exercising a trustee’s powers pursuant to 11 U.S.C. 1107(a), to sell property free and clear of an interest in such property provided at least one of five enumerated conditions is satisfied. OPK says that two were satisfied with respect to the DUA. One is that “such entity could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest.” 11 U.S.C. § 363(f)(5). The Court agrees that the interest in question, if it is an interest at all, is one for which the DUA could be compelled to accept a money satisfaction. The interest is a right of taxation, a right that is usually, ordinarily, preferredly, and probably exclusively satisfied precisely by the payment of money. Certainly the DUA could be compelled to accept a money satisfaction. Despite its disagreement, the DUA has articulated no argument to the contrary. I therefore conclude that § 363(f)(5) is satisfied and that there existed, as against the DUA, one of the five predicate conditions. b. “Interest” under § 363(f) The other issue is whether the right of taxation that the DUA is charged with enforcing is an “interest” in property of the estate within the meaning of § 363(f). “Interest” is not defined either in § 363(f) or elsewhere in the Bankruptcy Code. The “interest” in question is the right of the Commonwealth of Massachusetts, under its unemployment compensation statute, G.L. c. 151A, § 14(n), to tax a “successor employer” — an employer that is the transferee of the entire organization, trade or business of an employer, or substantially all the assets thereof — according to the experience rating of the assignor employer. For purposes of this analysis, I assume without deciding that OPK is a successor employer within the meaning of this statute; I note that OPK disputes the DUA’s determination to that effect. Here, it is undisputed that the interest in question is not a lien or a right to take specific assets, or" }, { "docid": "12652864", "title": "", "text": "General filed a response to the sale motion. Though OPK contends that its service on the OAG was effectively service on the DUA, OPK does not contend that the DUA received notice of the Sale Motion other than by virtue of the service effected on the OAG. OPK does not contend that the DUA had actual notice. At an auction held on August 18, 2009 in accordance with approved bidding procedures for the sale of substantially all of the Debtor’s assets, OPK prevailed with a bid of $4,050,000. On August 20, 2009, this Court entered the requested sale order approving the sale to OPK (“the Sale Order”). The Sale Order included the following relevant findings: • “Proper, timely, adequate and sufficient notice of the Bidding Procedures, the Auction, the Sale Motion and the hearing on the foregoing has been provided in accordance with sections 105(a), 363 and 365 of the Bankruptcy Code and Bankruptcy Rules 2002, 6004 and 6006, and no other or further notice is required.” Sale Order, ¶ G. • OPK is a good faith purchaser under section 363(m) of the Bankruptcy Code. Sale Order, ¶ L. • The requirements of § 363(f) of the Bankruptcy Code have been met. The transfer to OPK of the purchased assets shall be free and clear of all Encumbrances, including any claims pursuant to any successor or successor-in-interest liability theory. Sale Order, ¶¶ O, P. • OPK, as purchaser, will not be deemed a successor of the Debtor. Sale Order, ¶ Q. • OPK would not have entered into the asset purchase agreement or and would not consummate the transaction if OPK would or could “be liable for certain types of employment related claims,” including expressly “claims that might ... arise under or pursuant to ... state unemployment compensation laws[.]” Sale Order, ¶ R. The sale order also included the following relevant orders and decrees: • “Upon the Closing of the Sale, the Purchaser shall take title to and possession of the Purchased Assets subject only to the applicable Permitted Encumbrances. With the exception of such Permitted Encumbrances, pursuant to section" } ]

[ { "docid": "18496498", "title": "", "text": "because the assistance of counsel he received at trial and on direct appeal was constitutionally defective. The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.”). To prevail on an ineffective assistance claim, a petitioner must prove both (1) that his counsel’s performance was objectively unreasonable and (2) that he suffered prejudice as a result. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052; McDowell v. Kingston, 497 F.3d 757, 761 (7th Cir.2007). We may address these issues in whichever order is most expedient. As the Supreme Court explained, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Watson argues that (1) his trial counsel was constitutionally ineffective for failing to convey the information he needed to properly evaluate the State’s plea offer, and (2) both trial and appellate counsel were ineffective for failing to make an issue of the fact that he was charged with attempted murder, but the jury instructions that were given at trial did not define “murder.” A. The Appellate Court of Illinois rejected Watson’s argument that he was denied effective assistance when his attorney gave him inaccurate advice in connection with the State’s plea offer because it found that Watson could not show that he was prejudiced by counsel’s advice. We do not think that this finding was unreasonable. When a defendant considers the government’s offer of a plea agreement, “a reasonably competent counsel will attempt" } ]

[ { "docid": "21664516", "title": "", "text": "establish ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced his defense — that the errors were so serious as to deprive the defendant of a fair trial, that is, a trial the result of which is reliable. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Only a “showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment” suffices. Id. This court has concluded that only if counsel’s acts “fell beneath an objective standard of reasonable professional assistance” has he failed to function as counsel guaranteed by the Sixth Amendment. Gray v. Lynn, 6 F.3d 265, 268 (5th Cir.1993). There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance or sound trial strategy. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The petitioner must identify the acts or omissions of counsel that are alleged to be outside the bounds of reasonable professional judgment, and the court must then determine whether, in light of all of the circumstances, the identified acts or omissions were outside the range of professionally competent assistance. Id. at 690, 104 S.Ct. 2052. Because a criminal defendant is constitutionally entitled to the effective assistance of counsel on direct appeal as of right, see Lombard v. Lynaugh, 868 F.2d 1475, 1479 (5th Cir.1989), the Strickland standard applies to claims of ineffective assistance of counsel by both trial and appellate counsel. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052; United States v. Merida, 985 F.2d 198, 202 (5th Cir.1993). We adopt the district court findings that in light of all of the circumstances and considering the affidavit of Styron’s trial counsel, Gary W. Bunyard, the identified acts and omissions were within the wide range of reasonable professional assistance or sound trial strategy. Styron has failed to show that counsel’s trial performance was deficient, that it prejudiced his defense, or that he was deprived of a fair trial therefrom. Each of the grounds underlying" }, { "docid": "7377595", "title": "", "text": "466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To prevail on an ineffective assistance claim, a petitioner must establish that his “counsel’s performance was deficient” and that “the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Whether trial counsel provided constitutionally inadequate assistance is a mixed question of law and fact that we review de novo. Recendiz, 557 F.3d at 531; see also Strickland, 466 U.S. at 698, 104 S.Ct. 2052. To demonstrate deficient performance, the petitioner must show “that counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. “This means identifying acts or omissions of counsel that could not be the result of professional judgment. The question is whether an attorney’s representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.” Sussman v. Jenkins, 636 F.3d 329, 349 (7th Cir.2011) (internal quotation marks and citations omitted). “Our review of the attorney’s performance is ‘highly deferential’ and reflects ‘a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’ ” Davis v. Lambert, 388 F.3d 1052, 1059 (7th Cir.2004) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052); see also Harrington v. Richter, - U.S. -, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011) (“A court considering a claim of ineffective assistance must apply a strong presumption that counsel’s representation was within the wide range of reasonable professional assistance. The challenger’s burden is to show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” (internal quotation marks and citation omitted)). To establish prejudice in the plea context, the defendant must demonstrate through objective evidence that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Lockhart, 474 U.S. at 59, 106 S.Ct. 366; see" }, { "docid": "22197074", "title": "", "text": "an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Wheat, 486 U.S. at 159, 108 S.Ct. 1692; Brown, 79 F.3d at 1505. On this point, Harris loses his appeal. In order to succeed on a claim of attorney ineffectiveness, Harris must demonstrate both that his counsel’s conduct fell below an objective standard of reasonableness and that his counsel’s sub-standard performance prejudiced him. Hampton v. Leibach, 347 F.3d 219, 246 (7th Cir.2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In order to satisfy the first prong of the Strickland test, Harris must show that his attorney’s “representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. See also Bruce v. United States, 256 F.3d 592, 597 (7th Cir.2001) (to prevail on performance prong of an ineffective assistance claim, defendant must show that counsel’s deficient performance fell below an objective standard of reasonable competence); Zillges, 978 F.2d at 373 (to meet first part of ineffective assistance claim, defendant must demonstrate that the performance of his attorney was not within the range of competence demanded of attorneys in criminal cases). In assessing the adequacy of counsel’s performance, the court’s scrutiny must be highly deferential, allowing ample room for differences of professional opinion among attorneys as to how one might best represent the defendant. Hampton, 347 F.3d at 246; United States v. Trevino, 60 F.3d 333, 338 (7th Cir.1995), cert. denied, 516 U.S. 1061, 116 S.Ct. 739, 133 L.Ed.2d 689 (1996) (because counsel is presumed effective, a party bears a heavy burden in making out a winning claim on ineffective assistance). The prejudice prong is met if a defendant can show that, but for counsel’s unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. Hampton, 347 F.3d at 246; Trevino, 60 F.3d at 338 (after the defendant directs the appellate court to specific acts or omissions making up the ineffective assistance claim, we must determine whether, in" }, { "docid": "20425366", "title": "", "text": "States, 134 F.3d 470, 474 (1st Cir.1998). It is well settled that the Sixth Amendment right to counsel guarantees effective counsel. See Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Ortiz, 146 F.3d 25, 27 (1st Cir.1998). Nevertheless, petitioner bears a “very heavy burden” in his attempt to have his sentence vacated premised on an ineffective assistance of counsel claim. See Argencourt v. United States, 78 F.3d 14, 16 (1st Cir.1996); Lema v. United States, 987 F.2d 48, 51 (1st Cir.1993). This is particularly true in this circuit where a lawyer’s performance is deficient under Strickland “... only where, given the facts known at the time, counsel’s choice was so patently unreasonable that no competent attorney would have made it.” United States v. Rodriguez, 675 F.3d 48, 56 (1st Cir.2012), quoting Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir.2010), which in turn quotes Knight v. Spencer, 447 F.3d 6, 15 (1st Cir.2006). The United States Supreme Court has developed a two-pronged test to determine whether a criminal defendant was denied his constitutionally guaranteed effective assistance of counsel. See Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. Pursuant to the test established in Strickland, petitioner Campusano must first establish that his counsel in the criminal proceedings was deficient in that the quality of legal representation fell below an objective standard of reasonableness. See id. at 688, 104 S.Ct. 2052; Rosenthal v. O’Brien, 713 F.3d 676, 685 (1st Cir.2013). In order to satisfy the first-prong of the aforementioned test, petitioner “must show that ‘in light of all the circumstances, the identified acts or omissions [allegedly made by his trial attorney] were outside the wide range of professionally competent assistance.’ ” Tejeda v. Dubois, 142 F.3d 18, 22 (1st Cir.1998) (citing Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. 2052). Petitioner must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Smullen v. United States, 94 F.3d 20, 23 (1st Cir.1996) (citing Strickland v. Washington, 466 U.S. at 689, 104" }, { "docid": "23209158", "title": "", "text": "a reasonable choice. The district court also denied Mallett’s motion for an order allowing an interview of Dr. Pincus, as the court did “not perceive that Dr. Pincus’s report provides any evidence of Mallett’s incompetence or inability to form intent.” C. Discussion 1. Standard of Review Under 28 U.S.C. § 2255, “[a] prisoner in custody under sentence of a [federal] court ... claiming the right to be released ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.” In order to prevail upon a § 2255 motion, the movant must allege as a basis for relief: “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Weinberger v. United States, 268 F.3d 346, 351 (6th Cir.2001). We review de novo a district court’s denial of a § 2255 motion, and examine a district court’s factual findings for clear error. Moss v. United States, 323 F.3d 445, 454 (6th Cir.2003). Ineffective assistance of counsel claims are mixed questions of law and fact, which we review de novo on appeal. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Pierce, 62 F.3d 818, 833 (6th Cir.1995). 2. Ineffective Assistance of Counsel To establish ineffective assistance of counsel, a defendant must show that: (1) his trial counsel’s performance was deficient, and (2) the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Kinnard v. United States, 313 F.3d 933, 935 (6th Cir.2002). The first prong of this test requires Mallett to show that counsel’s representation “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. This standard is highly deferential, and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Under the second prong, Mal-lett must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would" }, { "docid": "6995549", "title": "", "text": "offense, then the petitioner will be unsuccessful.” Woodruff v. United States, 131 F.3d 1238, 1242 (7th Cir.1997). As such, Arango-Alvarez’s claim is not a miscarriage of justice, but is at best a non-constitutional error that could have been raised on direct appeal. See Davis, 417 U.S. at 346, 94 S.Ct. at 2305. Thus, Arango-Alvarez is barred from collateral review regardless of cause and prejudice. B. INEFFECTIVE ASSISTANCE OF COUNSEL Next, Arango-Alvarez asserts that he was denied his constitutional right to effective assistance of counsel because his counsel advised him to plead guilty even though there was an insufficient factual basis for his guilty plea. Arango-Alvarez bears a heavy burden to establish an ineffective assistance of counsel claim, as counsel is presumed effective. United States v. Trevino, 60 F.3d 333, 338 (7th Cir.1995), cert. denied, 516 U.S. 1061, 116 S.Ct. 739, 133 L.Ed.2d 689 (1996). In order to succeed on an ineffective assistance of counsel claim, the defendant must demonstrate that his counsel’s performance fell below an objective standard of reasonableness and that this deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 668, 694, 104 S.Ct. 2052, 2055, 2068, 80 L.Ed.2d 674 (1984). To show that counsel’s performance is deficient, the defendant must point out and make clear to this court the specific acts or omissions forming the basis of his claim. Trevino, 60 F.3d at 338 (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). We then determine whether, under all the circumstances, these alleged acts or omissions were made outside the wide range of professionally competent assistance. Id. A reasonably competent attorney considers the facts and legal consequences of the guilty plea and communicates this analysis to the defendant. United States v. Barnes, 83 F.3d 934, 939 (7th Cir.), cert. denied, — U.S. -, 117 S.Ct. 156, 136 L.Ed.2d 101 (1996). To demonstrate the Strickland prejudice prong in the context of a guilty plea, the defendant must show there was a reasonable probability that, but for his counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474" }, { "docid": "13385818", "title": "", "text": "BAUER, Circuit Judge. Hector Granada appeals from the district court’s denial of his motion to set aside his convictions pursuant to 28 U.S.C. § 2255. We affirm. A jury convicted Granada of conspiracy to distribute cocaine, 21 U.S.C. § 846, distribution of cocaine, 21 U.S.C. § 841(a)(1), and four counts of using a telephone to facilitate the distribution of cocaine, 21 U.S.C. §'843(b). Granada was sentenced to. 121 months’ imprisonment. We affirmed the convictions and sentences of Granada and several codefendants on direct appeal. United States v. Mojica, 984 F.2d 1426 (7th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2433, 124 L.Ed.2d 653 (1993). We declined to rule on Granada’s claim that he had received ineffective assistance of counsel because his allegations depended upon evidence outside the record, and we stated that Granada was free to raise this claim in a collateral proceeding. Id. at 1452-53; see Guinan v. United States, 6 F.3d 468, 472 (7th Cir.1993). Granada then filed this motion under 28 U.S.C. § 2255, asserting that his trial counsel was constitutionally ineffective. In reviewing the district court’s denial of Granada’s section 2255 motion, we consider all questions of law de novo and review all factual determinations for clear error. Stoia v. United States, 22 F.3d 766, 768 (7th Cir.1994). In order to succeed on his claim of ineffective assistance of counsel, Granada must demonstrate that (1) counsel’s performance was deficient, and (2) this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel’s performance is deficient if it falls below an “objective standard of reasonableness” under “prevailing professional norms.” Id. at 688, 104 S.Ct. at 2064-65. “A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690, 104 S.Ct. at 2066. “[A] court must indulge a strong" }, { "docid": "39993", "title": "", "text": "a district court’s denial of a § 2255 motion, we consider questions of law de novo and review any factual determinations for clear error. Menzer v. United States, 200 F.3d 1000, 1003 (7th Cir.2000). A. Ineffective Assistance of Counsel Claim We review an ineffective assistance of counsel claim under the principles set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Supreme Court held in Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), that the Strickland analysis applies to counsel’s conduct during the pleading phase. To mount a successful claim that counsel was ineffective at the pleading stage, Berkey must first show his attorney performed in a deficient manner, Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, and then prove that “but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 58-59, 106 S.Ct. 366. Our scrutiny of counsel’s performance is highly deferential. United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1133 (7th Cir.1990), and there is a strong presumption that his attorney performed effectively. United States v. Trevino, 60 F.3d 333, 338 (7th Cir.1995). To meet his burden, Berkey must establish specific acts or omissions of his counsel that constitute ineffective assistance. We then determine whether these acts or omissions were made outside the wide range of professionally competent assistance. Menzer, 200 F.3d at 1003. We need not consider the first prong of the Strickland test if we find that counsel’s alleged deficiency did not prejudice the defendant. Matheney v. Anderson, 253 F.3d 1025, 1042 (7th Cir.2001). As the Court noted in Strickland, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” 466 U.S. at 697, 104 S.Ct. 2052. We heed this advice and now explain why Berkey’s claim fails because he suffered no prejudice per Strickland. Berkey places significant emphasis on Roylston’s scant contact with his client," }, { "docid": "155807", "title": "", "text": "II. DISCUSSION Blake’s appeal raises three claims of ineffective assistance of counsel: first, the ineffective assistance of his initial attorney (Mr. Fabbri); next, the ineffective assistance of his trial attorney (Mr. Stenger), who was appointed to represent Blake after Mr. Fabbri withdrew; and finally, the ineffective assistance of his third set of attorneys (Messrs. Blegen and Brandstrader), who represented him on his direct appeal. A. LEGAL STANDARDS GOVERNING INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS GENERALLY Blake’s § 2255 claims are based on the Sixth Amendment. Relief under this statute is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice. Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.1996); Barnickel v. United States, 113 F.3d 704, 705 (7th Cir.1997). The Sixth Amendment to the Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI. This right to assistance of counsel encompasses the right to effective assistance of counsel. Watson v. Anglin, 560 F.3d 687, 690 (7th Cir.2009) (citations omitted). A party asserting ineffective assistance of counsel bears the burden of establishing two elements: (1) that his trial counsel’s performance fell below objective standards for reasonably effective representation, and (2) that counsel’s deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Jones, 635 F.3d 909, 915 (7th Cir.2011); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir.2009). To satisfy the first element of the Strickland test, appellant must direct the Court to specific acts or omissions by his counsel. Wyatt, 574 F.3d at 458 (citation omitted). In that context, the Court considers whether in light of all the circumstances counsel’s performance was outside the wide range of professionally competent assistance. Id. The Court’s assessment of counsel’s performance is “highly deferential,] ... indulging] a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.... ” Strickland, 466 U.S. at" }, { "docid": "2749971", "title": "", "text": "advise Osley that section 1591(b) carried a life term of supervised release for the same reasons the court rejected Osley’s claim about the mandatory minimum. Over Osley’s objections, the district court adopted the magistrate judge’s Report and Recommendation in its entirety. Osley timely appealed the order. Although the district court denied Osley’s motion for a certificate of appealability (“COA”), we granted his COA request concerning whether counsel was ineffective for failing to argue that impermissible double counting occurred; and for not telling Osley that a violation of the statute carried both a potential life term of supervised release and a mandatory minimum fifteen-year sentence. Osley filed his initial brief pro se; thereafter, however, we appointed counsel who filed supplemental briefing. II. In a section 2255 proceeding, we review legal conclusions de novo and factual findings for clear error. Devine v. United States, 520 F.3d 1286, 1287 (11th Cir.2008) (per curiam). Ineffective assistance of counsel claims are mixed questions of law and fact that we review de novo. Id. To prevail on an ineffectiveness claim, the defendant must satisfy the familiar two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, he must show that counsel’s performance was deficient. To meet this prong, the defendant must demonstrate that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Id. at 687, 104 S.Ct. 2052. There is a strong presumption that counsel’s conduct fell within the range of reasonable professional assistance, and, therefore, counsel’s performance is deficient only if it falls below the wide range of competence demanded of lawyers in criminal cases. Id. at 689, 104 S.Ct. 2052. Then, the defendant must show that he suffered prejudice as a result of that performance. Id. at 687, 104 S.Ct. 2052. This requires establishing a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. A habeas petitioner claiming ineffective assistance of" }, { "docid": "4221144", "title": "", "text": "gave up a fundamental right of great importance while receiving nothing in exchange for the waiver. Chatel-oin also contends that he received ineffective assistance of appellate counsel because appel late counsel, on direct appeal, failed to argue that the record did not show his personal waiver and failed to argue that the record did not show any expressed waiver from his trial counsel. The state contends that Chateloin’s trial counsel made a strategic decision to waive the right to a twelve-person jury. The state also contends that appellate counsel’s failure to raise the lack of personal waiver and the lack of trial counsel’s express waiver of the twelve-person jury fell within the wide range of professionally competent assistance. DISCUSSION We review the district court’s denial of habeas corpus relief de novo. Agan v. Singletary, 12 F.3d 1012, 1017 (11th Cir.1994). The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984). In order to prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) that his counsel's assistance fell below an objective standard of reasonableness; and (2) that the deficient performance prejudiced the defense such that it deprived the defendant of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir.1987) (“The standard for ineffective assistance is the same for trial and appellate counsel.”). A strong presumption exists that the challenged action constitutes sound trial strategy. Courts therefore must review the reasonableness of counsel’s assistance in light of the facts of the particular case at the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. In this case," }, { "docid": "6162098", "title": "", "text": "§ 2255 motion. United States v. Christakis, 238 F.3d 1164, 1168 (9th Cir.2001). We review de novo the district court’s determinations of whether a defendant received ineffective assistance of counsel, id., and whether probable cause existed, United States v. Rojas-Millan, 234 F.3d 464, 468 (9th Cir.2000). IV. Discussion Alaimalo seeks a writ of habeas corpus under 28 U.S.C. § 2255. Under § 2255, a prisoner in custody under the sentence of a court established by Act of Congress can be released upon the ground, among others, that the court imposed the sentence in violation of the Constitution of the United States. Alaimalo is in custody under sentence of the federal District Court of Guam, a court established by an act of Congress. He claims he was denied his right to counsel in violation of the Constitution’s Sixth Amendment. To show a deprivation of the Sixth Amendment right to counsel, Alaimalo must establish both that his lawyer’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Mancuso v. Olivarez, 292 F.3d 989, 953-54 (9th Cir.2002). A “deficient” performance is one that is not reasonably effective, where an objective standard guides judgments of reasonableness. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. To satisfy Strickland’s first prong, the acts or omissions must fall “outside the wide range of professionally competent assistance,” id. at 690, 104 S.Ct. 2052; the defendant must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” id. at 687, 104 S.Ct. 2052. A deficient performance prejudices a defense if there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Strickland’s second prong thus “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687, 104" }, { "docid": "20515901", "title": "", "text": "vehicle.” Id. Mason’s conviction became final on October 3, 2011, when the United States Supreme Court denied his petition for writ of certio-rari. On September 21, 2012, Mason filed a § 2255 petition for collateral relief, alleging ineffective assistance of counsel at both the trial and appellate proceedings. Petitioner asserted ineffective representation on five grounds, including — at issue here— failure to raise an Equal Protection challenge alleging racially selective law enforcement and failure to raise a possible violation of his Fifth Amendment rights based on the government’s trial reference to his post-arrest silence. The district court denied his petition on the merits. This court granted petitioner a certificate of appealability on the Equal Protection question on August 1, 2013, and a separate certificate on the Fifth Amendment question on May 23, 2014. II. Mason first contends that he received ineffective assistance because counsel declined to raise an Equal Protection claim of racially selective law enforcement. For this court to find ineffective assistance of counsel, Mason must demonstrate both that his counsel’s performance fell below the standard of objective reasonableness and that the deficient performance was prejudicial to his defense. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This he cannot do. A. It is important at the outset to emphasize the basic lesson of Strickland v. Washington: “judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689, 104 S.Ct. 2052. It is “all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Id. Thus, an evaluation of attorney performance requires that “every effort be' made to eliminate the distorting effects of hindsight.” Id. Further, we must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. Attorneys need not raise every possible claim to meet the constitutional standard of effectiveness. They are permitted to set priorities, determine trial strategy," }, { "docid": "2682910", "title": "", "text": "the merits of his ineffective assistance of counsel claim. II. Petitioner asserts that his Sixth Amendment right to effective assistance of counsel was violated when his trial counsel failed to object to the imposition of an enhanced sentence under Oklahoma’s Habitual Criminal Act. We disagree. “A claim of ineffective assistance of counsel presents a mixed question of law and fact which we review de novo.” Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th Cir.1995). To prevail on this claim, petitioner must show: (1) that his counsel’s performance fell below an objective standard of reasonableness and (2) that the deficient performance was prejudicial to his defense. See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the first prong of this test, petitioner must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052; see also Duvall v. Reynolds, 139 F.3d 768, 777 (10th Cir.1998). We review petitioner’s ineffective assistance of counsel claim from the perspective of his counsel at the time he rendered his legal services, not in hindsight. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. In addition, in considering counsel’s performance, we focus on “not what is prudent or appropriate, but only what is constitutionally compelled.” United States v. Cronic, 466 U.S. 648, 665 n. 38, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). To satisfy the second prong, petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Petitioner argues that his counsel's failure to object to his enhanced sentence under Oklahoma’s Habitual Criminal Act amounted to constitutionally deficient performance because the sentence he received exceeded that allowed by Oklahoma law. In particular, petitioner asserts that his counsel should have discovered that his second drug conviction could not trigger an enhanced penalty under the Habitual Criminal Act because this offense, second marijuana possession, is already subject to a specific sentence enhancement provision under Oklahoma’s Uniform" }, { "docid": "23087527", "title": "", "text": "under Guideline § 2Fl.l(b)(2). The district court sentenced Appellant to eighteen months in prison and ordered him to pay a $40,000 fine. Appellant contends that he received ineffective assistance of counsel at trial, that the prosecutor made improper remarks during her closing argument, and that his sentence was improperly calculated. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. I. Ineffective Assistance of Counsel Appellant’s claim of ineffective assistance of counsel was raised in the district court as grounds for a Rule 33 motion for a new trial. We review the district court’s denial of that motion only for abuse of discretion. See United States v. Smith, 62 F.3d 641, 650-51 (4th Cir. 1995). Ineffective assistance claims are, of course, governed by the two-part test set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984): an appellant must show that his counsel’s performance was deficient and that the deficient performance prejudiced the defense. With respect to the first requirement, an appellant must show that his attorney’s performance “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. To meet the second requirement, an appellant must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S.Ct. at 2064. The Strickland Court further observed: Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable____ [Ejvery effort [must] be made to eliminate the distorting effects of hindsight.... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id. at 689," }, { "docid": "155808", "title": "", "text": "counsel encompasses the right to effective assistance of counsel. Watson v. Anglin, 560 F.3d 687, 690 (7th Cir.2009) (citations omitted). A party asserting ineffective assistance of counsel bears the burden of establishing two elements: (1) that his trial counsel’s performance fell below objective standards for reasonably effective representation, and (2) that counsel’s deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Jones, 635 F.3d 909, 915 (7th Cir.2011); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir.2009). To satisfy the first element of the Strickland test, appellant must direct the Court to specific acts or omissions by his counsel. Wyatt, 574 F.3d at 458 (citation omitted). In that context, the Court considers whether in light of all the circumstances counsel’s performance was outside the wide range of professionally competent assistance. Id. The Court’s assessment of counsel’s performance is “highly deferential,] ... indulging] a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.... ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052; accord Wyatt, 574 F.3d at 458. Further, counsel’s performance is to be evaluated in light of the discretion properly accorded an attorney to develop appropriate trial strategies according to the attorney’s independent judgment, given the facts of the case, at least some of which may not be reflected in the trial record. See Strickland, 466 U.S. at 689-690, 104 S.Ct. 2052. Courts are admonished not to become “Monday morning quarterbaek[s]” in evaluating counsel’s performance. Harris v. Reed, 894 F.2d 871, 877 (7th Cir.1990). To satisfy the second Strickland element, appellant must show that there is a reasonable probability that, but for counsel’s errors, the result of the proceedings would have been different, such that the proceedings were fundamentally unfair or unreliable. Jones, 635 F.3d at 915 (citations omitted); Adams v. Bertrand, 453 F.3d 428, 435 (7th Cir.2006). “A reasonable probability is defined as one that is sufficient to undermine confidence in an outcome.” Adams, 453 F.3d at 435 (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). An appellate court reviews" }, { "docid": "2682909", "title": "", "text": "trial counsel’s failure to discover the trial court’s alleged sentencing error and subsequent failure to advise petitioner to pursue a direct appeal. Attorney error amounting to constitutionally ineffective assistance of counsel constitutes “cause” for a procedural default. See Coleman v. Thompson, 501 U.S. 722, 754, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). An individual’s Sixth Amendment right to effective counsel “is limited to the first appeal as of right.” See Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). “Although a guilty plea appeal is technically referred to in OMahoma as a ‘cer-tiorari appeal’, OMahoma [courts have] always treated this appeal as an appeal of right.” Randall v. State, 861 P.2d 314, 316 (Okla.Crim.App.1993). Thus, Mr. Hickman was entitled to effective counsel during the time period available for appeal of his conviction. Because the same legal standards govern petitioner’s underlying claim of ineffective assistance of counsel and his closely related burden to show cause for his state law procedural default, we must determine whether petitioner has shown cause concurrently with the merits of his ineffective assistance of counsel claim. II. Petitioner asserts that his Sixth Amendment right to effective assistance of counsel was violated when his trial counsel failed to object to the imposition of an enhanced sentence under Oklahoma’s Habitual Criminal Act. We disagree. “A claim of ineffective assistance of counsel presents a mixed question of law and fact which we review de novo.” Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th Cir.1995). To prevail on this claim, petitioner must show: (1) that his counsel’s performance fell below an objective standard of reasonableness and (2) that the deficient performance was prejudicial to his defense. See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the first prong of this test, petitioner must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052; see also Duvall v. Reynolds, 139 F.3d 768, 777 (10th Cir.1998). We review petitioner’s ineffective assistance of counsel claim from the perspective" }, { "docid": "8575952", "title": "", "text": "far-fetched theory. To make a substantial showing of the denial of his Sixth Amendment right to reasonably effective assistance of counsel, Molina-Uribe must satisfy the standard set forth in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He must therefore demonstrate “that counsel’s performance was deficient,” id. at 687, 104 S.Ct. 2052, and that “the deficient performance prejudiced [his] defense.” Id. To establish deficient performance, Molina-Uribe “must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 687-88, 104 S.Ct. 2052. Our scrutiny of counsel’s performance must be “highly deferential.” Id. at 689, 104 S.Ct. 2052. We must make every effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. The degree of deference we are to afford to Molina-Uribe’s trial counsel obviously drives the outcome of our deliberations. To prevail on an ineffective assistance claim Molina-Uribe must argue more than mere sub-optimal trial tactics. Our role under § 2255 is not to audit decisions that are within the bounds of professional prudence. A. We “review a district court’s conclusions with regard to a petitioner’s § 2255 claim of ineffective assistance of counsel de novo.” We review § 2255 findings of fact for clear error. United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994). Any subsidiary findings of basic, historical fact made by the district court after a § 2255 evidentiary hearing are subject to review under the clearly erroneous standard of Federal Rule of Criminal Procedure 52(a). In determining whether Molina-Uribe received effective assistance of counsel, we thus make an independent evaluation based on the district court’s subsidiary findings. See United States v. Rusmisel, 716 F.2d 301, 305 (5th Cir.1983). B. Washington, 466 U.S. at 689-91, 104 S.Ct. 2052, requires us to assess the tactics of the attorneys against what courts would expect from an attorney of average competence. Alternately phrased, the" }, { "docid": "13385819", "title": "", "text": "ineffective. In reviewing the district court’s denial of Granada’s section 2255 motion, we consider all questions of law de novo and review all factual determinations for clear error. Stoia v. United States, 22 F.3d 766, 768 (7th Cir.1994). In order to succeed on his claim of ineffective assistance of counsel, Granada must demonstrate that (1) counsel’s performance was deficient, and (2) this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel’s performance is deficient if it falls below an “objective standard of reasonableness” under “prevailing professional norms.” Id. at 688, 104 S.Ct. at 2064-65. “A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690, 104 S.Ct. at 2066. “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. at 2065 (citation omitted). Prejudice to the defendant is established only upon a showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. The result of the proceeding must also be fundamentally unfair or unreliable. Lockhart v. Fretwell, — U.S. -, -, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993). Granada contends that his trial counsel, Robert G. Clarke, was constitutionally ineffective because he failed to file a pretrial motion for severance after Granada provided him with affidavits of fifteen codefendants prior to trial. Granada asserts that these affidavits contradicted the incriminating testimony of the government’s informant. Granada attached what he claimed were “true and correct” copies of fourteen of these affidavits to his section 2255" }, { "docid": "14856834", "title": "", "text": "F.2d 1009, 1012 (7th Cir.1989) (quoting Rule 4(b) of the Rules Governing Section 2255 Proceedings).” Cf. McCleskey v. Zant, — U.S.—, 111 S.Ct. 1454, 1461-71, 113 L.Ed.2d 517 (1991) (Recognizing dismissal of second habeas corpus petition for abuse of writ). Review of the dismissal of Delgado’s section 2255 motion requires us to determine whether Delgado received ineffective assistance from his counsel during his sentencing. In United States v. Moya-Gomez, 860 F.2d 706, 763-64 (7th Cir.1988), cert. denied, 492 U.S. 908, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989), we set forth the requirements for establishing ineffective assistance of counsel: “The defendant bears a heavy burden in establishing an ineffective assistance of counsel claim. He must show (1) that the attorney’s representation fell below an objective standard of reasonableness (performance prong), Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984), and (2) that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different (prejudice prong), id. at 694, 104 S.Ct. at 2068. See also United States ex rel. Barnard v. Lane, 819 F.2d 798, 802 (7th Cir.1987); United States v. Hillsberg, 812 F.2d 328, 336 (7th Cir.), cert. denied, [481 U.S. 1041], 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987). With regard to the performance prong, the defendant must identify the specific acts or omissions of counsel that formed the basis for his claim of ineffective assistance. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. The court ‘must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.’ Id. The court’s scrutiny of counsel’s performance must be conducted with a high degree of deference and without the distorting effects of hindsight. Id. at 689, 104 S.Ct. at 2065; United States v. Sherwood, 770 F.2d 650, 655 (7th Cir.1985). As to the prejudice prong of the inquiry, a ‘reasonable probability’ of a different result means a ‘probability sufficient to undermine confidence in the outcome [of the trial].’ Strickland, 466 U.S. at 694, 104 S.Ct." } ]

[ { "docid": "13090971", "title": "", "text": "to all the inferences fairly deducible from the evidence. See Gunning v. Cooley, 1930, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Mattson v. Central Electric & Gas Co., 8 Cir., 1949, 174 F.2d 215; Stolting v. Everett, 1952, 155 Neb. 292, 51 N.W.2d 603. We think the evidence clearly presents a sufficient basis for the jury’s verdict and therefore it must stand. Under Point No. 4 defendant complains because of the Court’s failure to give his requested instruction No. 19, which reads as follows: “You are instructed that if you find from the evidence that any left turn of defendant’s cattle truck, as claimed by the plaintiff, would place the front part of same in such a position that a collision could not have occurred between plaintiff’s westbound Plymouth automobile and the running board, front body corner, and dual tires on the left side of such cattle truck, you will necessarily find that the accident could not have been caused and brought about as contended by the plaintiff, and your verdict must be for the defendant.” The trial court properly refused to give the requested instruction. What was said by the United States Supreme Court in Clement v. Packer, 1888, 125 U.S. 309, 327, 8 S.Ct. 907, 915, 31 L.Ed. 721, appropriately expresses the feelings of this court: “ * * * The direct tendency, if not the avowed purpose, of the statements contained in this charge, is to withdraw from the consideration of the jury a very considerable amount of pertinent and important teStimO-jjy * * *» The instruction, as requested, would have tended to direct the attention of the jurors to only a portion of the evidence —the testimony of Mrs. Anderson that the truck swerved toward them and the fact that the decedent’s car struck the center of the left side of defendant’s truck. It would have eliminated the remainder of the plaintiff’s evidence from the consideration of the jury, thereby confining the plaintiff’s possibility of recovery to the sole theory that the defendant’s truck swerved into the path of the oncoming car of the" } ]

[ { "docid": "22707680", "title": "", "text": "assuring its proper conduct and of determining questions of law. Herron v. Southern Pacific Co., 283 U.S. 91, 95. In charging the jury, the trial judge is not limited to instructions of an abstract sort. ít. is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and-commenting upon the evidence, by drawing their attention to the parts of it which he thinks, important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. Carver v. Jackson, 4 Pet. 1, 80; Vicksburg & Meridian R. Co. v. Putnam, 118 U.S. 545, 553; United States v. Philadelphia & Reading R. Co., 123 U.S. 113, 114; Capital Traction Co. v. Hof, 174 U.S. 1, 13, 14 p Patton v. United States, 281 U.S. 276, 288/ Sir Matthew Hale thus described the function of the trial judge at common law: “ Herein he is able, in matters of law emerging upon thé evidencé, to direct them; and also, in matters of fact to give them a great light and assistance by his weighing the evidence before them, and observing where the question and knot of the business lies, and by showing them his opinion even' in matters of fact; which is a great advantage and light to laymen.” Hale, History of the Common Law, 291, 292. Under the Federal Constitution the essential prerogatives of the trial judge as they were secured by the rules of the common law are maintained in the federal courts. Vicksburg & Meridian R. Co. v. Putnam, supra; St. Louis, I. M. & S. Ry. Co. v. Vickers, 122 U.S. 360, 363; Slocum v. New York Life Insurance Co., 228 U.S. 364, 397; Herron v. Southern Pacific Co., supra; Gasoline Products Co. v. Champlin Co., 283 U.S. 494, 498. . This privilege of the judge to comment on the facts has its inherent limitations. His discretion is not arbitrary and uncqntrolled, but judicial, to be exercised in conformity with the standards governing" }, { "docid": "20617918", "title": "", "text": "628, 151 A.2d 465, 466, 467 (1959). We left entirely to the jury’s discretion, the initial determination whether Lambert was a fellow employee of Davis and whether it would be natural, under the circumstances, to call him as a witness in support of Davis’ contentions. We further cautioned the jury in this regard, as follows: “You will notice that you may draw an inference. It does not mean you must.” We think Davis’ first reason is without merit. In urging his second reason— Davis concedes that a federal trial judge has a broader right to review and comment upon the evidence than a Penn sylvania trial judge. He contends, however, that the trial judge assumed the role of an advocate, when he pointed out to the jury that they were not bound to accept Davis’ estimates of distance “as absolute verity” of the actual distances from which Davis testified that he observed the Flanagan vehicle at various points prior to the collision. On controverted issues the jury is certainly not obliged to accept the oral testimony of an interested witness, such as plaintiff, as verity, merely because that testimony is incapable of contradiction since only he knows what he saw. The jury is entitled to weigh and evaluate his opportunity and capacity for observation and judgment of distances which involve vehicles moving in different directions at different speeds. We reminded the jury, repeatedly, that it was not to be bound by the Court’s recollection of the evidence; that it was solely the jury’s function to recall the testimony and to reach its own conclusions. It is settled beyond question that a federal judge may comment upon the evidence “and express his opinion upon the facts”, so long as he submits all matters of fact to the jury and informs them that they are not bound by his opinion. Vicksburg & Meridian Rd. Co. v. Putnam, 118 U.S. 545, 553, 7 S.Ct. 1, 2, 30 L.Ed. 257 (1886); United States v. Garber, 383 F.2d 448 (3 Cir. 1967); National Dairy Products Corp. v. United States, 350 F.2d 321, 333 (8 Cir." }, { "docid": "22185940", "title": "", "text": "essential element of a jury trial. As explained in Herron v. Southern Pacific Co., 283 U.S. 91, 95, 51 S.Ct. 383, 384, 75 L.Ed. 857 (1931): In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. This discharge of the judicial function as at common law is an essential factor in the process for which the Federal Constitution provides .... “Trial by jury,” said the court in Capital Traction Co. v. Hof, 174 U.S. 1, 13, 14 [19 S.Ct. 580, 585, 585-86, 43 L.Ed. 873 (1899)], “in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empan-elled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence.” See, also, United States v. Philadelphia & Reading R. Co., 123 U.S. 113, 114 [8 S.Ct. 77, 77-78, 31 L.Ed. 138 (1887)]; Patton v. United States, 281 U.S. 276, 288, 289 [50 S.Ct. 253, 254, 254-55, 74 L.Ed. 854 (1930)]. See also St. Louis v. Praprotnik, — U.S. -, 108 S.Ct. 915, 925, 99 L.Ed.2d 107 (1988); Miller v. Fenton, 474 U.S. 104, 112-14, 106 S.Ct. 445, 451-52, 88 L.Ed.2d 405 (1985); Galloway v. United States, 319 U.S. 372, 389-92, 63 S.Ct. 1077, 1086-88, 87 L.Ed. 1458 (1943); Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935); Sparf & Hansen v. United States, 156 U.S. 51, 80-82," }, { "docid": "22185941", "title": "", "text": "their verdict; but it is a trial by a jury of twelve men in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence.” See, also, United States v. Philadelphia & Reading R. Co., 123 U.S. 113, 114 [8 S.Ct. 77, 77-78, 31 L.Ed. 138 (1887)]; Patton v. United States, 281 U.S. 276, 288, 289 [50 S.Ct. 253, 254, 254-55, 74 L.Ed. 854 (1930)]. See also St. Louis v. Praprotnik, — U.S. -, 108 S.Ct. 915, 925, 99 L.Ed.2d 107 (1988); Miller v. Fenton, 474 U.S. 104, 112-14, 106 S.Ct. 445, 451-52, 88 L.Ed.2d 405 (1985); Galloway v. United States, 319 U.S. 372, 389-92, 63 S.Ct. 1077, 1086-88, 87 L.Ed. 1458 (1943); Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935); Sparf & Hansen v. United States, 156 U.S. 51, 80-82, 15 S.Ct. 273, 284-285, 39 L.Ed. 343 (1895); United States v. Articles of Drugs: 5906 Boxes, 745 F.2d 105, 112-13 (1st Cir.1984) (Stewart, J., Ret.). Had the trial court failed to exercise that authority here, a constitutional jury trial would have been denied, not upheld. Notwithstanding the above precedent, Newell finds support in some decisions of this court for its argument that the district court improperly substituted its determination of obviousness for that of “reasonable jurors,” namely this court's opinions in Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 221 USPQ 669 (Fed. Cir.), cert. denied, 469 U.S. 857, 105 S.Ct. 187, 83 L.Ed.2d 120 (1984); Railroad Dynamics, Inc. v. A. Stucki Co., 727 F.2d 1506, 220 USPQ 929 (Fed.Cir.), cert. denied, 469 U.S. 871, 105 S.Ct. 220, 83 L.Ed.2d 150 (1984); and Connell v. Sears Roebuck & Co., 722 F.2d 1542, 220 USPQ 193 (Fed.Cir.1983). In particular, Newell points to statements in Connell that “it is not error to submit the question of obviousness to the jury,” Connell, 722 F.2d at 1547, 220 USPQ" }, { "docid": "15651874", "title": "", "text": "charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important, and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination.’’ The power to superintend and direct the trial .and to advise on the facts must not be abused. If the testimony is summed up or analyzed, care must be taken to sum up and analyze both sides; if comment is made, or a belief as to credibility expressed, it should be done dispassionately and the jury advised that the responsibility, in the last analysis, is theirs. The judge must not become an advocate. The line between fairness and unfairness, between legitimate comment - and advocacy, is a shadowy one. Suffice it to say that the trial court’s comment here challenged is well on the side of fair comment, and is not open to criticism. The judgment is affirmed. The language of Justice Gray in Capital Traction Co. v. Hof, 174 U. S. 1, 13-16, 19 S. Ct. 580, 43 L. Ed. 873. Patton v. United States, 281 U. S. 276, 290, 50 S. Ct. 253, 74 L. Ed. 854, 70 A. L. R. 263. Quercia v. United States, 289 U. S. 466, 469, 53 S. Ct. 698, 77 L. Ed. 1321. Minner v. United States (C. C. A. 10) 57 F.(2d) 506; Coulston v. United States (C. C. A. 10) 51 F.(2d) 178, 180; Hickory v. United States, 160 U. S. 408, 16 S. Ct 327, 40 L. Ed. 474; Quercia v. United States, supra." }, { "docid": "21157130", "title": "", "text": "damage with respect to alleged loss of circulation revenues, and the loss suffered by plaintiffs with respect to advertising revenues was found to be “speculative.” Consequently, plaintiffs have compiled a record in this case which in both the Court’s opinion and the jury’s opinion, expressed by the verdict of the jury, made a recovery of damages by plaintiffs impossible to ascertain with a reasonable degree of certainty. Plaintiffs have accordingly failed to sustain their burden of proof and are entitled to no more than nominal damages. In United States v. Philadelphia & Reading Railroad Co., 1887, 123 U.S. 113, loc. cit. 114, 8 S.Ct. 77, 31 L.Ed. 138, the Supreme Court of the United States said: “Trial by jury in the courts of the United States is a trial presided over by a judge, with authority, not only to rule upon objections to evidence, and to instruct the jury upon the law, but also, when in his judgment the due administration of justice requires it, to aid the jury by explaining and commenting upon the testimony, and even giving them his opinion upon questions of fact, provided only he submits those questions to their determination. Vicksburg & Meridian Railroad v. Putnam, 118 U.S. 545 [7 S.Ct. 1, 30 L.Ed. 257]; St. Louis etc. Railway v. Vickers, 122 U.S. 360 [7 S.Ct. 1216, 30 L.Ed. 1161].” The opinion expressed by this Court supra had its incubation during pre-trial conferences held herein, where the Court was afforded ample opportunity to consider all aspects of plaintiffs’ claim against the defendants. The jury had no such opportunity. They had to take the facts adduced in one solid dose. The Court was compelled to make a note of explanation, and comment on the facts as it did, if the jury was to render a just verdict. They returned the only verdict that could be returned on the record as made by plaintiffs. In light of the record so made and the verdict of the jury so returned, the Court, in the light of Rule 49(a), F.R. Civ.P., finds the fact to be .that plaintiffs are" }, { "docid": "11915565", "title": "", "text": "not binding on you.” A direct and complete answer to this question is found in the decision of this court in Weiderman v. United States, 10 F.(2d) 745. The only difference between that ease and this one is that there the expression of opinion complained of was more emphatic. The question as to how far a judge may go in expressing his opinion as to what the evidence proves is an interesting one. In the United States Supreme Court it has arisen in the following cases: Carver v. Jackson, 4 Pet. 1, 80, 7 L. Ed. 761; Magniac v. Thompson, 7 Pet. 348, 390, 8 L. Ed. 709; Mitchell v. Harmony, 13 How. 115, 131, 14 L. Ed. 75; Transportation Line v. Hope, 95 U. S. 297, 24 L. Ed. 477; St. Louis, Iron Mountain & Southern Ry. v. Tickers, 122 U. S. 360, 7 S. Ct. 1216, 30 L. Ed. 1161; United States v. Philadelphia & Reading Ed. Co., 123 U. S. 113, 8 S. Ct. 77, 31 L. Ed. 138; Rucker v. Wheeler, 127 U. S. 85, 8 S. Ct. 1142, 32 L. Ed. 102; Lovejoy v. United States, 128 U. S. 171, 9 S. Ct. 57, 32 L. Ed. 389; Simmons v. United States, 142 U. S. 148, 12 S. Ct. 171, 35 L. Ed. 968; Doyle v. Union Pacific Ry. Co., 147 U. S. 413, 13 S. Ct. 333, 37 L. Ed. 223; Lincoln v. Power, 151 U. S. 436, 14 S. Ct. 387, 38 L. Ed. 224; Allis v. United States, 155 U. S. 117, 15 S. Ct. 36, 39 L. Ed. 91; Starr v. United States, 153 U. S. 614, 14 S. Ct. 919, 38 L. Ed. 841; Wiborg v. United States, 163 U. S. 632, 16 S. Ct. 1127, 1197, 41 L. Ed. 289. The rule is stated in Vicksburg & Meridian Rd. Co. v. Putnam, 118 U. S. 545, 553, 7 S. Ct. 1, 2 (30 L. Ed. 257) as follows: “In the courts of the United States, as in those of England, from which our practice was derived, the judge, in" }, { "docid": "8934870", "title": "", "text": "person on the street, that it does not require any comment on the court. (Emphasis supplied). But commenting on the evidence is precisely what was required in this situation. In order to insure that Brown received a fair trial the trial judge was obligated to specifically caution the jury that Stokes’ testimony should be regarded with heightened scrutiny. It is not fair to assume the “average juror” understands the reduced credibility of a drug addict. That may or may not be the case, but Brown deserved the benefit of the doubt. I do not know where the paranoia about commenting on the evidence began. In 75 Calif.L.Rev. 1341, at 1366, this explanation is given: The populist political movement in the 19th century was influential in limiting the power of the trial judge over the jury. In many states, statutes and constitutional provisions restricted judicial comment on the evidence. But, there is no such limitation on federal judges. Chief Justice Hughes, in Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1933), said: In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. Herron v. Southern Pacific Co., 283 U.S. 91, 95 [51 S.Ct. 383, 384, 75 L.Ed. 857 (1931) ]. In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. Carver v. Jackson [29 U.S. (4 Pet.) 1, 80 [7 L.Ed. 761 (1830)]; Vicksburg & Meridian R. Co. v. Putnam, 118 U.S. 545, 553 [7 S.Ct. 1, 2, 30 L.Ed. 257 (1886) ]; United" }, { "docid": "13359939", "title": "", "text": "289 U.S. 466, at page 469, 53 S.Ct. 698, at page 699, 77 L.Ed. 1321, where the court stated: “In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. Herron v. Southern Pacific Co., 283 U.S. 91, 95 [51 S.Ct. 383, 75 L.Ed. 857]. In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. Carver v. Jackson, 4 Pet. 1, 80 [7 L.Ed. 761]; Vicksburg & Meridian R. Co. v. Putnam, 118 U.S. 545, 553 [7 S.Ct. 1, 30 L.Ed. 257]; United States v. Philadelphia & Reading R. Co., 123 U.S. 113, 114 [8 S.Ct. 77, 31 L.Ed. 138] ; Capital Traction Co. v. Hof, 174 U.S. 1, 13, 14 [19 S.Ct. 580, 43 L.Ed. 873] ; Patton v. United States, 281 U.S. 276, 288 [50 S.Ct. 253, 74 L.Ed. 854].” See McCoy v. Blakely, 8 Cir., 1954, 217 F.2d 227, 233; United States v. Rosenberg, 2 Cir., 1952, 195 F.2d 583, 593-595; Stokes v. United States, 8 Cir., 1920, 264 F. 18, 25; United States v. Worcester, D.C.Mass., 1961, 190 F.Supp. 548, 561. The judge’s charge to the jury in this case is a model of studied impartiality. He carefully directed attention to the contentions of both parties without emphasizing one over the other and without in any manner whatsoever indicating any opinion as to such contentions or the witnesses offered in support thereof. He clearly, emphatically and at length and on a number of occasions pointed out that it was the sole responsibility of the jury to determine" }, { "docid": "8934871", "title": "", "text": "1321 (1933), said: In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. Herron v. Southern Pacific Co., 283 U.S. 91, 95 [51 S.Ct. 383, 384, 75 L.Ed. 857 (1931) ]. In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. Carver v. Jackson [29 U.S. (4 Pet.) 1, 80 [7 L.Ed. 761 (1830)]; Vicksburg & Meridian R. Co. v. Putnam, 118 U.S. 545, 553 [7 S.Ct. 1, 2, 30 L.Ed. 257 (1886) ]; United States v. Philadelphia & Reading R. Co., 123 U.S. 113, 114 [8 S.Ct. 77, 78, 31 L.Ed. 138 (1887)]; Capital Traction Co. v. Hof, 174 U.S. 1, 13, 14 [19 S.Ct. 580, 585, 586, 43 L.Ed. 873 (1899)]; Patton v. United States, 281 U.S. 276, 288 [50 S.Ct. 253, 254, 74 L.Ed. 854 (1930) ]. Sir Matthew Hale thus described the function of the trial judge at common law: “Herein he is able, in matters of law emerging upon the evidence, to direct them; and also, in matters of fact to give them a great light and assistance by his weighing the evidence before them, and observing where the question and knot of the business lies; and by showing them his opinion even in matters of fact; which is a great advantage and light to laymen.” Hale, History of the Common Law, 291, 292. Under the Federal Constitution the essential prerogatives of the trial judge as they were secured by the rules of the common law are maintained in the federal courts. Vicksburg & Meridian" }, { "docid": "1339697", "title": "", "text": "the Court please, I meant no disrespect. I meant no disrepect to Your Honor. “The Court: I am just telling you what I am going to do, and I got it in the record so we don’t have any mistake about our respective positions. “Mr. Goodwin: My objection again to His Honor’s comment. “The Court: Now, Mr. Wilson, based on this mathematical probability, have you an opinion as to whether or not these prints were made by the same finger, or thumb in this case ? “The Witness: May I put it this way, Your Honor? The possibility that these two patterns could occur coincidentally in the hands of two different individuals is so remote as to be unworthy of any serious consideration.” Counsel’s attempt to end his cross examination on a strong point was virtually destroyed. But Mr. Goodwin perseveres and succeeds when, in a few short additional questions, the witness admits: “In the final analysis, this is for the jury to decide whether the prints are in fact identical or not.” The error raised is not so much the examination by the court but the fact the court stated he wanted to “see that justice was done.” A federal judge has the right to comment fairly upon the evidence. Kansas City Star Co. v. United States, 8 Cir., 240 F.2d 643, cert. denied 354 U.S. 923, 77 S.Ct. 1381, 1 L.Ed.2d 1438; Woodring v. United States, 311 F.2d 417; Batsell v. United States, 8 Cir., 217 F.2d 257. Such right is derived from the common law. Vicksburg & M. Railroad Co. v. Putnam, 118 U.S. 545, 546, 7 S.Ct. 1, 30 L.Ed. 257 (1886); Capital Traction Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873 (1898). The court in the Putnam case states: “In the courts of the United States as in those of England, from which our practice was derived, the judge, in submitting a case to the jury, may, at his discretion, whenever he thinks it necessary to assist them in arriving at a just conclusion, comment upon the evidence, call their attention" }, { "docid": "22707679", "title": "", "text": "matter of law that ff the jury believed the evidence for the Government it might find the defendant guilty. The court then charged the jury as follows: “ And now I am going to tell you what I think of the defendant’s testimony. You may : have noticed,, Mr. Foreman and gentlemen, that he wiped his hands during his testimony.. It is rather a curious thing, but that is almost always an indication of lying'. Why it should be so wé don’t know, but that is the fact. I think that every single word that man said, .except when h.e agreed with the Government’s testimony, was a lie. r “ Now, that opinion is an opinion of evidence and is not binding on you, and if you don’t agree with it, it is your duty to find him not guilty.” To this charge the defendant excepted. ■ • In a trial by jury in a federal court/ the judge is. not a mere moderator, but is thé governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. Herron v. Southern Pacific Co., 283 U.S. 91, 95. In charging the jury, the trial judge is not limited to instructions of an abstract sort. ít. is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and-commenting upon the evidence, by drawing their attention to the parts of it which he thinks, important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. Carver v. Jackson, 4 Pet. 1, 80; Vicksburg & Meridian R. Co. v. Putnam, 118 U.S. 545, 553; United States v. Philadelphia & Reading R. Co., 123 U.S. 113, 114; Capital Traction Co. v. Hof, 174 U.S. 1, 13, 14 p Patton v. United States, 281 U.S. 276, 288/ Sir Matthew Hale thus described the function of the trial judge at common law: “ Herein he is able, in matters of law emerging upon" }, { "docid": "9780148", "title": "", "text": "be difficult to convict the witness of perjury. However, the learned trial judge, despite his remarks touching the testimony of experts, told the jury repeatedly that they were the sole judges of the credibility of all of the witnesses, of the weight to be given to their testimony, and of the facts in the case. It is the rule in the federal courts that remarks by the trial judge giving his views upon the evidence are allowable, provided he clearly instructs the jury that they are not to be bound by such views, but are to determine the credibility of the witnesses, the weight of the testimony, and the facts in the case for themselves. Vicksburg Co. v. Putnam, 118 U. S. 545, 7 Sup. Ct. 1, 30 L. Ed. 257; St. Louis, etc., Ry. Co. v Vickers, 122 U. S. 360, 7 Sup. Ct. 1216, 30 L. Ed. 1161; U. S. v. Railroad Co., 123 U. S. 113, 8 Sup. Ct. 77, 31 L. Ed. 138; Rucker v. Wheeler, 127 U S. 85, 8 Sup. Ct. 1142, 32 L. Ed. 103; Lovejoy v. U. S., 128 U. S. 171, 9 Sup. Ct. 57, 32 L. Ed. 389; Doyle v. Railroad, 147 U. S. 413, 13 Sup. Ct. 333, 37 L. Ed. 223; Allis v. U. S., 155 U. S. 117, 15 Sup. Ct. 36, 39 L. Ed. 91; Capital Traction Co. v. Hof, 174 U. S. 1, 19 Sup. Ct. 580, 43 L. Ed. 873; Graham v. U. S., 231 U. S. 474, 480, 34 Sup. Ct. 148, 58 L. Ed. 319; Simmons v. U. S., 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 968; Young v. Corrigan, 210 Fed. 442, 127 C. C. A. 174; Smith v. R. R. Co., 214 Fed. 737, 131 C. C. A. 43; Griggs v. Nadeau, 250 Fed. 781, 163 C. C. A. 113. We think the rule was not violated in the present case. Error is also assigned in respect to the charge of the court touching a former suit commenced by Hamilton against the defendant company, and its" }, { "docid": "22751499", "title": "", "text": "S.Ct. 854, 86 L.Ed. 1166; Bailey, Adm’x v. Central Vermont Ry., 1943, 319 U.S. 350, 354, 63 S.Ct. 1062, 87 L. Ed. 1444; Schulz, Adm’x v. Pennsylvania R. Co., 1956, 350 U.S. 523, 524, 76 S.Ct. 608, 100 L.Ed. 668; see also Atlantic & Gulf Stevedores v. Ellerman Lines, 1962, 369 U.S. 355, 360, 82 S.Ct. 780, 7 L.Ed.2d 798. . “ * * * Even where issues of fact are tried by juries in the Federal courts, such trials are under the constant superintendence of the trial judge. In a trial by jury in a Federal court the judge is ‘not a mere moderator’ but ‘is the governor of the trial’ for the purpose of assuring its proper conduct as well as of determining questions of law. Herron v. Southern Pacific Co., 283 U.S. 91, 95 [51 S.Ct. 383, 75 L.Ed. 857]. In the Federal courts, trial by jury ‘is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence.’ Capital Traction Co. v. Hof, 174 U.S. 1, 13,14 [19 S.Ct. 580, 5S5, 43 L.Ed. 873].” Crowell v. Benson, 1932, 285 U.S. 22, 61, 52 S.Ct. 285, 298, 76 L.Ed. 598. determining questions of law. Herron v. Southern Pacific Co., 283 U.S. 91, 95 [51 S.Ct. 383, 75 L.Ed. 857]. In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important, and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. * * * Sir Matthew Hale thus described the" }, { "docid": "13359938", "title": "", "text": "the alleged misconduct of the trial court, unless it appears that the conduct complained of was intended or calculated to disparage the defendant in the eyes of the jury and to prevent the jury from exercising an impartial judgment upon the merits.” See also United States v. Aaron, 2 Cir., 1951, 190 F.2d 144, certiorari denied Freidus v. United States, 1951, 342 U.S. 827, 72 S.Ct. 50, 96 L.Ed. 626; Garber v. United States, 6 Cir., 1944, 145 F.2d 966; Hargrove v. United States, 8 Cir., 1928, 25 F.2d 258. While we are convinced here that impropriety has been established, we nevertheless conclude, for the reasons hereinafter stated, that no • prejudice resulted. At no time during the presentation of the testimony or during his charge to the jury did the trial judge here express an opinion as to the facts nor did he comment directly upon the witnesses and their testimony, although it was his prerogative so to do. Buchanan v. United States, 8 Cir., 1926, 15 F.2d 496; Quercia v. United States, 1933, 289 U.S. 466, at page 469, 53 S.Ct. 698, at page 699, 77 L.Ed. 1321, where the court stated: “In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. Herron v. Southern Pacific Co., 283 U.S. 91, 95 [51 S.Ct. 383, 75 L.Ed. 857]. In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. Carver v. Jackson, 4 Pet. 1, 80 [7 L.Ed. 761]; Vicksburg & Meridian R. Co. v. Putnam, 118 U.S. 545, 553" }, { "docid": "23025505", "title": "", "text": "evidence which would support a conviction upon any one of the first four counts would also support a conviction upon all of those counts. It follows that the first four counts charge -but one offense and that a conviction upon all four counts will justify but one punishment. Counts V and VI, however, charge separate offenses. The judgment is reversed and the cause is remanded with directions to proceed in conformity with this opinion. “He [the judge] discharges his duty of giving instructions to the jury when he informs them what in his view the law is which is applicable to the case before them, and what is essential to constitute the offence charged; and the jury should be left free and unbiased by his opinion to determine for themselves whether the facts in evidence are such as, in the light of the instructions of the judge, make out beyond any reasonable doubt that the accused party is guilty as alleged.” Cooley’s Constitutional Limitations, p. 461. “It is well settled that the defendant has a right to a full statement of the law from the court, and that a neglect to give such full statement, when the jury consequently fall into error, is sufficient reason for reversal. * * * The chief object contemplated in the charge of the judge is to explain the law of the case, to point out the essentials to be proved on the one side and the other, and to bring into view the relations of the particular evidence adduced to the particular issues involved.” Bird v. United States, 1901, 180 U.S. 356, 361, 21 S.Ct. 403, 405, 45 L.Ed. 570. See also Capital Traction Company v. Hof, 1899, 174 U.S. 1, 13-16, 19 S.Ct. 580, 43 L.Ed. 873; and Patton v. United States, 1930, 281 U.S. 276, 288, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263. In Corson v. United States, 1944, 147 E.2d 437, the Circuit Court of Appeals for the Ninth Circuit took similar action. “And where the error is so fundamental as not to submit to the jury the essential" }, { "docid": "1339698", "title": "", "text": "raised is not so much the examination by the court but the fact the court stated he wanted to “see that justice was done.” A federal judge has the right to comment fairly upon the evidence. Kansas City Star Co. v. United States, 8 Cir., 240 F.2d 643, cert. denied 354 U.S. 923, 77 S.Ct. 1381, 1 L.Ed.2d 1438; Woodring v. United States, 311 F.2d 417; Batsell v. United States, 8 Cir., 217 F.2d 257. Such right is derived from the common law. Vicksburg & M. Railroad Co. v. Putnam, 118 U.S. 545, 546, 7 S.Ct. 1, 30 L.Ed. 257 (1886); Capital Traction Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873 (1898). The court in the Putnam case states: “In the courts of the United States as in those of England, from which our practice was derived, the judge, in submitting a case to the jury, may, at his discretion, whenever he thinks it necessary to assist them in arriving at a just conclusion, comment upon the evidence, call their attention to parts of it which he thinks important, and express his opinion upon the facts; # * *» However, as we have pointed out in the Woodring case, this is a right which the trial court must cautiously exercise since it can very easily result in prejudice to a litigant’s rights. This is particularly true in a criminal case where life or liberty may be in jeopardy. The trial court’s comments can disturb the balance of fairness of a jury trial. He should never assume the role of the prosecutor or advocate. His position is one of neutrality and he should never cross boundaries. It is a trial judge’s duty to see that the evidence is clear and understood. However, his comments should never unfairly emphasize testimony nor add to or change the evidence given. The judge’s zeal to do so when the evidence is evenly balanced can easily create prejudice. Each case merits individual consideration. It may well be the less comment or interference by the trial judge with the examination of witnesses, the" }, { "docid": "13359940", "title": "", "text": "[7 S.Ct. 1, 30 L.Ed. 257]; United States v. Philadelphia & Reading R. Co., 123 U.S. 113, 114 [8 S.Ct. 77, 31 L.Ed. 138] ; Capital Traction Co. v. Hof, 174 U.S. 1, 13, 14 [19 S.Ct. 580, 43 L.Ed. 873] ; Patton v. United States, 281 U.S. 276, 288 [50 S.Ct. 253, 74 L.Ed. 854].” See McCoy v. Blakely, 8 Cir., 1954, 217 F.2d 227, 233; United States v. Rosenberg, 2 Cir., 1952, 195 F.2d 583, 593-595; Stokes v. United States, 8 Cir., 1920, 264 F. 18, 25; United States v. Worcester, D.C.Mass., 1961, 190 F.Supp. 548, 561. The judge’s charge to the jury in this case is a model of studied impartiality. He carefully directed attention to the contentions of both parties without emphasizing one over the other and without in any manner whatsoever indicating any opinion as to such contentions or the witnesses offered in support thereof. He clearly, emphatically and at length and on a number of occasions pointed out that it was the sole responsibility of the jury to determine the credibility of tne witnesses and the weight that should be given to their testimony. Additionally, as if to destroy any possible prejudice from his having participated in the cross-examination of witnesses and from his comments, he said: “During the course of the trial I occasionally ask questions of a witness in order to bring out facts not then fully covered in the testimony. Do not assume that I hold any opinion on the matters to which my questions relate. Remember that at all times that you as jurors are at liberty to disregard all comments of the court in arriving at your finding as to the facts. “If in the course of these instructions, and if during the trial, I have said anything that indicates to you how the court might feel, or how you think the court feels with respect to the testimony in this case, and that opinion is different from your opinion of the testimony, you are to accept your opinion of the testimony rather than the court’s, because it is" }, { "docid": "5894428", "title": "", "text": "contract and the circumstances under which it was made.” Sacramento Nav. Co. v. Salz, 273 U.S. 326, 329, 47 S.Ct. 368, 369, 71 L.Ed. 663. The contract provision specifying that not more than 600 feet of compressed air work would- be paid for regardless of whether more was required does not relieve the appellant from liability for its misrepresentations. U. S. v. Atlantic Dredging Co., 253 U.S. 1, 40 S.Ct. 423, 64 L.Ed. 735; Hollerbach v. United States, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898; United Construction Co. v. Town of Haverhill, 2 Cir., 9 F.2d 538, 540. This voluminous record contains 340 assignments of error. It is necessary to consider but a few of these, although they have been severally examined. A tabulation is made of the questions asked of all the witnesses by the trial judge, and appellant argues that from an analysis of thousands of questions asked the court erred by being too inquisitive. It has often been repeated that a trial judge in the federal courts is more than a mere arbitrator to rule upon objections as to evidence and to instruct the jury as to the law. He may and should take an active part in the examination of witnesses if he considers that the course of justice requires it. It is his function to elicit all the material evidence and assist in making straight the path of justice. Particularly was this true when it appeared to the learned judge below, engaged'in a very long trial, that there was an insufficient or improper elucidation of the provable facts. Young v. Corrigan, D. C., 208 F. 431, 438. As said in Capital Traction Co. v. Hof, 174 U.S. 1, 14, 19 S.Ct. 580, 585, 43 L.Ed. 873: “And thus, as the jury assists the judge in determining the matter of fact, so the judge assists the jury in determining points of law, and also very much in investigating and enlightening the matter of fact whereof the jury are the judges.” This jury properly had the advantage of close observation, attention, and assistance by a" }, { "docid": "8934872", "title": "", "text": "States v. Philadelphia & Reading R. Co., 123 U.S. 113, 114 [8 S.Ct. 77, 78, 31 L.Ed. 138 (1887)]; Capital Traction Co. v. Hof, 174 U.S. 1, 13, 14 [19 S.Ct. 580, 585, 586, 43 L.Ed. 873 (1899)]; Patton v. United States, 281 U.S. 276, 288 [50 S.Ct. 253, 254, 74 L.Ed. 854 (1930) ]. Sir Matthew Hale thus described the function of the trial judge at common law: “Herein he is able, in matters of law emerging upon the evidence, to direct them; and also, in matters of fact to give them a great light and assistance by his weighing the evidence before them, and observing where the question and knot of the business lies; and by showing them his opinion even in matters of fact; which is a great advantage and light to laymen.” Hale, History of the Common Law, 291, 292. Under the Federal Constitution the essential prerogatives of the trial judge as they were secured by the rules of the common law are maintained in the federal courts. Vicksburg & Meridian R. Co. v. Putnam, supra; St. Louis, I.M. & S. Ry. Co. v. Vickers, 122 U.S. 360, 363 [7 S.Ct. 1216, 30 L.Ed. 1161 (1887)]; Slocum v. New York Life Insurance Co., 228 U.S. 364, 397 [33 S.Ct. 523, 536, 57 L.Ed. 879 (1913)]; Herron v. Southern Pacific Co., supra; Gasoline Products Co. v. Champlin Co., 283 U.S. 494, 498 [51 S.Ct. 513, 514, 75 L.Ed. 1188 (1931)]. Justice Oliver Wendell Holmes of the U.S. Supreme Court had no such paranoia. See Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920). Nor did Justice Brandéis have such paranoia. In that same case, he said, “It has long been the established practice of the federal courts that, even in criminal cases, the presiding judge may comment freely on the evidence_” Id. See also Graham v. U.S., 231 U.S. 474, 478, 34 S.Ct. 148, 150, 58 L.Ed. 319 (1913); U.S. v. Martin, 740 F.2d 1352, 1357 (6th Cir.1984). I would, therefore, reverse Brown’s conviction, and remand the case for" } ]

[ { "docid": "4906024", "title": "", "text": "and do permit a different prima facie case to be made. The crucial factor in the Teamsters formulation was that the plaintiff in that case alleged that he had been deterred from applying for the position in question because discrimination would have rendered it futile for him to do so. In refusing to enact an automatic bar from Title VII relief for all plaintiffs who had not applied, the Court reasoned: The denial of Title VII relief on the ground that the claimant had not formally applied for the job could exclude from the Act’s coverage the victims of the most entrenched forms of discrimination. Victims of gross and pervasive discrimination could be denied relief precisely because the unlawful practices had been so successful as totally to deter job applications from members of minority groups. International Brotherhood of Teamsters v. United States, 431 U.S. at 367, 97 S.Ct. at 1871. Although the Court thus opened the courthouse door to the nonapplicant, it nevertheless required him to make a preliminary showing of discrimination. Having alleged his deterrence from applying on the basis of the employer’s discriminatory practices, it was then necessary in effect for such a plaintiff to substantiate this allegation. The plaintiff needed to show prima facie that he would have applied for the relevant position had it not been for those practices. International Brotherhood of Teamsters v. United States, 431 U.S. at 368, 97 S.Ct. at 1871. In meeting this burden, he essentially bridges the gap between applicant and non-applicant, and attains the presumption accorded the former upon fulfillment of the McDonnell Douglas prima facie case. Id. The present controversy is completely different. Here, in contrast to Teamsters, the plaintiff alleges no awareness of a job opportunity which existed but which was illegally deterred. On the contrary, according to Mr. Rodgers, the discriminatory practice prevented even the awareness of the opportunity. The Company allegedly did not inform its own employees of the vacancy. Deposition 30; Affidavit, 1. It is uncontested that the Company then went outside the organization to hire a white man for the foreman position. Application of" } ]

[ { "docid": "22290734", "title": "", "text": "concern that if a formal application for a specific position were not required to be alleged in the complaint, a plaintiff interested in 17 jobs for which she was qualified might receive damages for all 17 jobs. See Transcript of July 17, 1997, at 20. That apprehension is unfounded. If Brown establishes a discriminatory lack of promotion, her damages would be limited to one position, perhaps based on the average wage of the positions for which she was qualified, or even limited to the lowest paying position. Moreover, even without damages, her relief could include an injunction requiring consideration for the next available position without regard to race. Though Brown’s allegations that she repeatedly made her supervisors aware of her interest in promotions to unposted positions should suffice to withstand dismissal, her complaint is also sufficient on the alternative ground that the alleged circumstances show the futility of specific applications. As the Court acknowledges, the Supreme Court has recognized that a nonapplicant may proceed with a Title VII claim where the plaintiff was “deterred from applying for the job by the employer’s discriminatory practices.” Teamsters, 431 U.S. at 367-68, 97 S.Ct. 1843. This Court has also recognized that those facing an “entrenched discriminatory system” are “not required to keep beating their heads against the wall by reapplying.” Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1017 (2d Cir.1980); see Berkman v. City of New York, 705 F.2d 584, 594 (2d Cir.1983) (“Those who have been deterred by a discriminatory practice from applying for employment are as much victims of discrimination as are actual applicants whom the practice has caused to be rejected.”). Brown has made numerous allegations of Coach’s discriminatory employment practices. Amended Complaint ¶¶ 33(a)-(h). The Court initially rejects the “futility” doctrine of Teamsters and Grant by quoting extensively from a treatise writer who believes that what the Supreme Court said in Teamsters should apply only to class actions. See 1 Lex K. Larson, Employment Discrimination § 8.02[2], at 8-30-31 (2d ed.1997). However, neither the Supreme Court in Teamsters nor this Court in Grant specified that the “futility” principle" }, { "docid": "5049791", "title": "", "text": "VII case, the Supreme Court then held “that an incumbent employee’s failure to apply for a job is not an inexorable bar to an award of retroactive seniority.” Id. at 364, 97 S.Ct. at 1869. The Court stated that a nonapplicant could show in some circumstances that he was a potential victim of unlawful discrimination. Id. at 367, 97 S.Ct. 1843. Two distinct factual prerequisites were required by the Court for relief to be given to a nonapplicant: first, that, but for his awareness of the defendant’s unlawful discrimination, the deterred applicant would have applied and, second, that upon application he would have been discriminatorily rejected. Id. at 368 n. 52, 97 S.Ct. 1843. See id. at 362-371, 97 S.Ct. 1843. In this case, the plaintiff, citing Teamsters principally, urges that Title VII liability be imposed on defendant Local 122, alternatively (1) because Local 122 has a reputation for discrimination in the black community which deters black journeymen from applying or (2) because Local 122 has failed to publicize its nondiscrimination. A third basis for liability, implied by the plaintiff’s argument, is that Local 122 has violated Title VII by acting to create a reputation for discrimination in order to deter black journeymen from applying. The first contention that the existence itself of a reputation for discrimination by Local 122 is a basis for imposing liability under Title VII was flatly rejected in Lewis, supra, where the Fourth Circuit reversed the district court’s imposition of liability, holding: “Nor is it permissible to base recovery on the subjective belief of class members ‘that their race substantially limited their initial employment to the Stemmery.’ Basing recovery on that fact is an improper consideration. The question is whether or not the company did in fact discriminate, not whether or not the employee did in fact believe the company had discriminated. It is at once apparent that the consideration of these two questions is entirely different.” 577 F.2d at 1143 (footnote omitted). Rejection of liability based upon reputation alone is compelled by Title VII’s language which defines the term “unlawful employment practice” with respect" }, { "docid": "16552494", "title": "", "text": "Title VII and the Equal Pay Act. A state instrumentality does not have an eleventh amendment defense to either Title VII or the Equal Pay Act. See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (Title VII) and Usery v. Charleston Cty. Sch. Dist., 558 F.2d 1169 (4th Cir. 1977) (Equal Pay Act). 21. Defendants Cassis, Dobbs, Logston, Wilson, Barger, Gould, Anderson, as board members and/or former board members, and Haskins, as the Superintendent of the Board, are employers within the meaning of Title VII and the Equal Pay Act, since they “control” Linda Burkey’s employment. Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1341-42 (D.C. Cir. 1970); Puntolillo v. New Hampshire Racing Commission, 375 F.Supp. 1089, 1091-92 (D.N.H.1974) and Beeman v. Middendorf, 425 F.Supp. 713,714 (D.D.C.1977). 22. Defendants’ policy of restricting coaching positions for boys’ sports to male teachers constitutes and has constituted, illegal discrimination against Linda Bur-key on the basis of her sex, and operates, and has operated, to deny her the rights accorded her by Title VII and 42 U.S.C. § 1983. 23. Since Defendants’ policy as to boys’ coaches was generally known within the Marshall County School District, Linda Burkey was not required to perform the futile act of applying for a job coaching boys’ sports as a prerequisite to filing her cause of action. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). See also, White v. Carolina Paperboard Corp., 564 F.2d 1073, 1086 (4th Cir. 1977). 24. Linda Burkey was and is as qualified to coach boys’ athletics as most of the males who have and are coaching boys’ athletics within the Marshall County School District. 25. Defendants’ refusal to permit Linda V. Burkey to coach boys’ sports solely because of her sex constitutes an unlawful employment practice under Title VII and 42 U.S.C. § 1983. See for proof requirements and burden of proof: Texas Dept. of Community Affairs v. Burdine,-U.S.-, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Ambush v. Montgomery County Government Division of Revenue, 620 F.2d 1048, 22 F.E.P." }, { "docid": "2242788", "title": "", "text": "for a job and therefore was a potential victim of the proved discrimination.... [T]he burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons. Id. at 362, 97 S.Ct. 1843 (footnote omitted). As for nonapplicants, A nonapplicant must show that he was a potential victim of unlawful discrimination. Because he is necessarily claiming that he was deterred from applying for the job by the employer’s discriminatory practices, his is the not always easy burden of proving that he would have applied for the job had it not been for those practices. When this burden is met, the nonapplicant is in a position analogous to that of an applicant and is entitled to the presumption discussed [above]. Id. at 367-68, 97 S.Ct. 1843 (citation omitted). Once again, the Government misperceives the procedural posture of the instant case. Teamsters applies when a court is ordering a remedy under § 706(g) of Title VII. But “the question of individual relief [under § 706(g) ] does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination.” Id. at 361, 97 S.Ct. 1843. In Teamsters and other § 706(g) cases, a § 703(a) violation had been proven and the question was what remedy the court should order. The case before us in its present posture is not about judicially ordered remedies at all. It is about voluntary employer action and its relation to § 703(a). The only question we face is whether the City Defendants have violated § 703(a) by engaging in intentional reverse discrimination against the Brennan Plaintiffs. A § 706(g) case like Teamsters does not speak to that question. That is especially so because the Supreme Court has held that employers acting voluntarily can do more than a court could order them to do under § 706(g). See Johnson, 480 U.S. at 630 n. 8, 107 S.Ct. 1442. But if we were to apply Teamsters here, we would be telling employers precisely that they cannot give individual relief to employees except under the circumstances in" }, { "docid": "16552495", "title": "", "text": "and 42 U.S.C. § 1983. 23. Since Defendants’ policy as to boys’ coaches was generally known within the Marshall County School District, Linda Burkey was not required to perform the futile act of applying for a job coaching boys’ sports as a prerequisite to filing her cause of action. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). See also, White v. Carolina Paperboard Corp., 564 F.2d 1073, 1086 (4th Cir. 1977). 24. Linda Burkey was and is as qualified to coach boys’ athletics as most of the males who have and are coaching boys’ athletics within the Marshall County School District. 25. Defendants’ refusal to permit Linda V. Burkey to coach boys’ sports solely because of her sex constitutes an unlawful employment practice under Title VII and 42 U.S.C. § 1983. See for proof requirements and burden of proof: Texas Dept. of Community Affairs v. Burdine,-U.S.-, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Ambush v. Montgomery County Government Division of Revenue, 620 F.2d 1048, 22 F.E.P. Cases 1101 (4th Cir. 1980); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). 26. Defendants paid Linda V. Burkey less than male coaches were paid for the same or comparable work solely because of her sex. Cf. Brennan v. Woodbridge School District, 9 F.E.P.O. 969 (D.Del.1974) (job coaching girls’ softball substantially equivalent to that of job coaching boys’ softball). See Brennan v. Prince William Hospital Corp., 503 F.2d 282 (4th Cir. 1974). 27. Defendants’ policy of not compensating Linda V. Burkey for coaching girls’ basketball (prior to 1973-74) or for compensating her at only one-half (Va) of the salary paid to the male coaches of basketball constituted illegal discrimination against Linda V. Burkey on the basis of her sex and has operated to deny her the rights accorded her by Title VII, 42 U.S.C. § 1983 and the Equal Pay Act, 29 U.S.C. § 206(d)(1). 28. Defendants’ refusal to pay Linda V. Burkey a salary for coaching basketball, equal to the salary paid male coaches for coaching basketball" }, { "docid": "22586439", "title": "", "text": "ADA. Here, plaintiffs’ positions as police officers could not be modified to accommodate their disabilities and consideration of reassignment was therefore appropriate. The district court correctly instructed the jury that reassignment may be required, subject to various limitations. 3. Futility Instruction Denver next contends the district court incorrectly instructed the jury that plaintiffs need not have requested reassignment if they knew the employer had a policy forbidding it. Denver argues that this instruction erroneously relieved plaintiffs of their obligation to initiate the interactive process envisioned by the ADA. Plaintiffs do not dispute the importance of the interactive process in accommodating employees but assert that when the employer has an established policy against reassignment, the ADA does not require employees to engage in the “futile gesture,” International Bhd. of Teamsters v. United States, 431 U.S. 324, 366, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), of requesting reassignment. In Teamsters, the Supreme Court recognized that “[a] consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection.” Id. at 365, 97 S.Ct. 1843. For example, “[i]f an employer should announce his policy of discrimination by a sign reading ‘Whites Only’ on the hiring-office door, his victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs.” Id. Therefore, “[w]hen a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application.” Id. at 365-66, 97 S.Ct. 1843. In order for a nonapplicant plaintiff to merit relief, he has “the not always easy burden of proving that he would have applied for the job had it not been for [the employer’s discriminatory] practices.” Id. at 368, 97 S.Ct. 1843. Significantly, the legislative history of the ADA specifically indicates that the futile gesture doctrine enunciated in Teamsters applies to employment actions. See H. Rep. No. 101-485(II)" }, { "docid": "22950528", "title": "", "text": "Commissioners, 638 F.2d 496, 502 (2d Cir. 1980). Where there has been an unlawful refusal to hire, individual class members may establish their prima facie entitlement to backpay simply by showing that they applied for the job and were not hired. Sledge v. J. P. Stevens & Co., 585 F.2d 625, 637 (4th Cir. 1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1789, 60 L.Ed.2d 241 (1979). See also Rodriguez v. Taylor, 569 F.2d 1231, 1239 (3d Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978); Swint v. Pullman-Standard Co., 539 F.2d 77, 103 (5th Cir. 1976); EEOC v. Local 638, supra, 532 F.2d at 832-33. Cf. International Brotherhood of Teamsters v. United States, supra, 431 U.S. at 361-62, 97 S.Ct. at 1867-1868. Similarly, where an unlawful policy and practice of discrimination has been proven, one who was thereby deterred from applying for employment may establish his prima facie entitlement to backpay by proving such deterrence. See id. at 365-67, 97 S.Ct. at 1869-1870; Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1016 (2d Cir. 1980). The burden then shifts to the defendant to rebut this prima facie showing by proving that the class member would not have been hired even absent discrimination — for example, because no vacancies existed or because the claimant failed to meet nondiscriminatory prerequisites for employment. E. g., Sledge v. J. P. Stevens & Co., supra, 585 F.2d at 637; Rodriguez v. Taylor, supra, 569 F.2d at 1240; White v. Carolina Paperboard Corp., 564 F.2d 1073, 1086 (4th Cir. 1977); cf. Franks v. Bowman Transp. Co., supra, 424 U.S. at 772-73 & n.32, 96 S.Ct. 1267-1268 n.32. With respect to most of the City’s prerequisites — i. e., those relating to the candidate’s age, residence, education, and possession of a driver’s license — we would expect the allocation of the burden of proof to have little impact. However, two prerequisites relate to the physical condition of the candidate in 1971 or 1975, and the order would require that the nonofferee candidate prove that he would have passed the physical agility" }, { "docid": "18068031", "title": "", "text": "324, 367, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). This doctrine applies in cases where the employer has a “consistently enforced discriminatory policy” that will deter applicants who are aware of the policy from applying because they know they face “certain rejection.” Id. at 365, 97 S.Ct. 1843. To take advantage of this rule, a nonapplicant must show he or she “would have applied but for accurate knowledge of an employer’s discrimination and that he would have been discriminatorily rejected had he actually applied.” Bennett v. Quark, Inc., 258 F.3d 1220, 1228 (10th Cir.2001) (internal citation omitted), overruled on other grounds as explained in Boyer v. Cordant Techs., Inc., 316 F.3d 1137, 1140 (10th Cir.2003). “Only in the rare case where an employer has essentially foreclosed the interactive process through its policies or explicit actions will the futile gesture doctrine apply.” Davoll v. Webb, 194 F.3d 1116, 1133 (10th Cir.1999) (applying the futile gesture doctrine to Americans with Disabilities Act violations). Futility does not apply here. Daniels contends she was unaware of a potential discriminatory basis for UPS’s failure to promote her until at least July 31, 2008, when Gary Liberti acknowledged UPS had not followed its stated policy in handling her promotion requests. Thus, Daniels’s failure to apply for a promotion in 2007 was not due to her knowledge she would be discriminatorily rejected had she applied. Second, Daniels does not show UPS had a “consistently enforced discriminatory policy” or practice of discriminating against its older or female employees in a way that demonstrated it would be futile for her to continue seeking a promotion. Int’l Bhd. of Teamsters, 431 U.S. at 365, 97 S.Ct. 1843. UPS’s stated promotion policy was not discriminatory; on the contrary, Liberti’s admission that UPS did not follow its stated policy is Daniels’s principal evidence that UPS was motivated by discriminatory bias — but only as to her. Third, Daniels has not pointed to evidence showing UPS engaged in a practice of discrimination against its older or female employees. While she points out there were no female supervisors in the James Street Station feeder" }, { "docid": "15759908", "title": "", "text": "were expressly denied a requested employment opportunity. A consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 365, 97 S.Ct. 1843, 1869, 52 L.Ed.2d 396 (1977) (nonapplicants for positions may still share in the relief awarded). Although an employee may not have been denied a promotion, suffering some particularized grievance plus the perpetuation of a discriminatory employment environment coupled with the constant threat of being discriminatorily denied a promotion is the “injury,” referred to in Rodriguez, that links the representative employee to other employees and applicants. Contrary to the majority’s holding, it has never been required under Title VII that one be discriminatorily assigned in order to suffer the legally cognizable injury permitting one standing to challenge discriminatory assignments. It is enough to show legal injury (and consequently representative status on behalf of a group of employees and applicants for employment) by establishing that one has been personally denied some employment benefit, and either lives with a racially discriminatory employment environment or lives under the threat of a particular employment policy. As artfully put by Judge Gray in Hall v. Werthan Bag Corp., 251 F.Supp. 184, 186 (M.D.Tenn.1966), Racial discrimination is by definition a class discrimination. If it exists, it applies throughout the class. This does not mean, however, that the effects of the discrimination will always be felt equally by all the members of the racial class. For example, if an employer’s racially discriminatory preferences are merely one of several factors which enter into employment decisions, the unlawful preferences may or may not be controlling in regard to the hiring or promotion of a particular member of the racial class. But although the actual effects of a discriminatory policy may thus vary throughout the class, the existence of the discriminatory policy threatens the entire class. And whether the Damoclean threat of a racially discriminatory policy hangs over the racial class is a question of fact common to all" }, { "docid": "18068030", "title": "", "text": "case law for a cause of action to accrue, or for the statute of limitations to begin. Id. Thus, no cause of action accrued in July 2008. Second, Daniels disputes that the limitations period in these statutes applies to her failure-to-promote claim. She asserts three theories in support of this argument: (1) she did not file any letters expressing her interest in a promotion after 2006 because she believed doing so would be futile; (2) UPS’s failure to promote her was a compensation decision, so a cause of action accrued with each paycheck; and (3) Congress statutorily overruled Morgan by overturning the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007), which applied Morgan. Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2,123 Stat. 931 (2009). 1. Futility A plaintiff alleging discrimination need not show he applied for a job or promotion and was rejected if doing so would have been futile. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 367, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). This doctrine applies in cases where the employer has a “consistently enforced discriminatory policy” that will deter applicants who are aware of the policy from applying because they know they face “certain rejection.” Id. at 365, 97 S.Ct. 1843. To take advantage of this rule, a nonapplicant must show he or she “would have applied but for accurate knowledge of an employer’s discrimination and that he would have been discriminatorily rejected had he actually applied.” Bennett v. Quark, Inc., 258 F.3d 1220, 1228 (10th Cir.2001) (internal citation omitted), overruled on other grounds as explained in Boyer v. Cordant Techs., Inc., 316 F.3d 1137, 1140 (10th Cir.2003). “Only in the rare case where an employer has essentially foreclosed the interactive process through its policies or explicit actions will the futile gesture doctrine apply.” Davoll v. Webb, 194 F.3d 1116, 1133 (10th Cir.1999) (applying the futile gesture doctrine to Americans with Disabilities Act violations). Futility does not apply here. Daniels contends she was unaware of a potential discriminatory" }, { "docid": "13342105", "title": "", "text": "United States, 1977, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396, a Title VII case, the Supreme Court held, at 364-68, that relief could be awarded to nonapplicants if they were able to prove that but for the discrimination of which they complain, they would have applied for the positions. Presumably, in order to have suffered injury by being deterred from applying, the nonapplicant would also have had to have been qualified for the desired position. Although the Court in Teamsters did not analyze the issue expressly in standing terms, the holding has obvious implications for the standing question. Failure to apply, moreover, will not defeat standing if the nonapplicant had no knowledge of the availability of the position because of the discriminatory recruitment practices he challenges. See, Curran v. Portland Super. Sch. Committee, etc., D.Maine, 1977, 435 F.Supp. 1063, 1071-72. Curran distinguishes Jackson v. Dukakis, 1 Cir. 1975, 526 F.2d 64, a Title VII case holding that plaintiff, who had never applied for employment, lacked standing since he never placed himself in a position to suffer any injury from defendants’ actions, on the ground that evidence in Jackson appeared to indicate that the plaintiff was aware of the employment possibilities. 526 F.2d at 65. Furthermore, the Jackson decision has been substantially eroded by Teamsters, supra. See generally, Curran, supra, at 1072. In both Teamsters, supra, and Cur-ran, supra, plaintiffs were qualified for the positions which they sought but for which they had not applied. Plaintiffs in the instant case make no mention of their qualifications for official service jobs. Paragraph 9 of plaintiffs’ complaint even implies that plaintiffs may not now be qualified. Plaintiffs also do not allege that they were deterred from applying because of defendants’ discriminatory hiring practices, nor that they had no personal knowledge and continue to have no knowledge of official service job openings. The absence of these allegations is fatal to plaintiffs’ individual standing to challenge discrimination in official service recruitment and hiring. Plaintiffs also do not have individual standing to complain of discrimination in inter-category promotions, i. e., promotions from labor service" }, { "docid": "22750484", "title": "", "text": "To conclude that a person’s failure to submit an application ' for a job does not inevitably and forever foreclose his entitlement to seniority relief under Title VII is a far cry, however, from holding that nonapplicants are always entitled to such relief. A nonapplicant must show that he was a potential victim of unlawful discrimination. Because he is necessarily claiming that he was deterred from applying for the job by the employer’s discriminatory practices, his is the not always easy burden of proving that he would have applied for the job had it not been for those practices. Cf. Mt. Healthy City Board of Education v. Doyle, 429 U. S. 274. When this burden is met, the nonapplicant is in a position analogous to that of an applicant and is entitled to the presumption discussed in Part III-A, supra. The Government contends that the evidence it presented in this case at the liability stage of the trial identified all non-applicants as victims of unlawful discrimination “with a fair degree of specificity,” and that the Court of Appeals’ determination that qualified nonapplicants are presumptively entitled to an award of seniority should accordingly be affirmed. In support of this contention the Government cites its proof of an extended pattern and practice of discrimination as evidence that an application from a minority employee for a line-driver job would have been a vain and useless act. It further argues that since the class of nonapplicant discriminatees is limited to incumbent employees, it is likely that every class member was aware of the futility of seeking a line-driver job and was therefore deterred from filing both an initial and a followup application. We cannot agree. While the scope and duration of the company’s discriminatory policy can leave little doubt that the futility of seeking line-driver jobs was communicated to the company’s minority employees, that in itself is insufficient. The known prospect of discriminatory rejection shows only that employees who wanted line-driving jobs may have been deterred from applying for them. It does not show which of the nonapplicants actually wanted such jobs, or which" }, { "docid": "23252540", "title": "", "text": "an inference of intentional, racially-disparate treatment without proving that he technically applied for ... the promotion.” Id. at 797. Accord Easley v. Empire Inc., 757 F.2d 923, 930 n. 7 (8th Cir.1985) (dictum) (“formal application for a job will be excused when a known discriminatory policy ... deters potential jobseekers”); Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133 (11th Cir.1984) (where employer failed to use formal process for posting vacancies and for determining who would be considered for the job, and instead relied on word-of-mouth and informal review procedures, employer had the duty to consider all employees “who might reasonably be interested”); Rodgers, 542 F.Supp. at 1220 (where employer fails to notify its own employees of vacancy and instead goes outside the company to hire a white worker, qualified black employee has a prima facie case of discriminatory hiring on the basis of race). Cf. Teamsters, 431 U.S. at 371, 97 S.Ct. at 1872-73 (after the government has proven a pattern and practice of discriminatory hiring and promotion, nonapplicants may still obtain relief if they can show that they would have applied but for the company’s established policy of discrimination); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1551-52, 1560 (11th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 274, 93 L.Ed.2d 250 (1986) (nonapplicants not foreclosed from proving prima facie case where employer used word-of-mouth hiring practices to maintain sexually segregated workforce). The same concerns are present in the instant case. Alongside its formal Job Service application process, Metal Service maintained a word-of-mouth hiring practice among its existing employees. Such an informal hiring process, in conjunction with an all white workforce, is itself strong circumstantial evidence of discrimination. Cf. Grant, 635 F.2d at 1017. Several courts have held that word-of-mouth hiring practices that carry forward racial imbalances are discriminatory. See Barnett v. W.T. Grant Co., 518 F.2d 543, 549 (4th Cir.1975); Parham v. Southwestern Bell Tel. Co., 433 F.2d 421, 426-27 (8th Cir.1970); Stamps v. Detroit Edison Co., 365 F.Supp. 87, 117 (E.D.Mich.1973), rev'd on other grounds sub nom. EEOC v. Detroit Edison Co., 515 F.2d" }, { "docid": "5049790", "title": "", "text": "for imposing Title VII liability on defendant Local 122 is that in the black community Local 122 has a reputation for racial discrimination, that this reputation deters black journeymen from applying to Local 122, and that Local 122 has not publicized its non-discrimination against black journeymen (Pretrial Order at 27, Papers 250, 597; 4 Tr. 74-75). After briefly reviewing the law on this issue, the evidence will be summarized, and findings made. A. LAW The controlling cases here are International Brotherhood of Teamsters v. United States, supra, in the Supreme Court and Lewis v. Tobacco Workers’ International Union, supra, a recent case, in the Court of Appeals for the Fourth Circuit. In Teamsters, the defendant trucking company had engaged in a pattern and practice of treating minority applicants for over-the-road driver jobs differently from white applicants. Almost no minority over-the-road drivers worked for the defendant, and individuals had recounted 40 specific instances of racial discrimination. 431 U.S. at 334-343, 97 S.Ct. 1843. In deciding the scope of the district court’s remedial power in a Title VII case, the Supreme Court then held “that an incumbent employee’s failure to apply for a job is not an inexorable bar to an award of retroactive seniority.” Id. at 364, 97 S.Ct. at 1869. The Court stated that a nonapplicant could show in some circumstances that he was a potential victim of unlawful discrimination. Id. at 367, 97 S.Ct. 1843. Two distinct factual prerequisites were required by the Court for relief to be given to a nonapplicant: first, that, but for his awareness of the defendant’s unlawful discrimination, the deterred applicant would have applied and, second, that upon application he would have been discriminatorily rejected. Id. at 368 n. 52, 97 S.Ct. 1843. See id. at 362-371, 97 S.Ct. 1843. In this case, the plaintiff, citing Teamsters principally, urges that Title VII liability be imposed on defendant Local 122, alternatively (1) because Local 122 has a reputation for discrimination in the black community which deters black journeymen from applying or (2) because Local 122 has failed to publicize its nondiscrimination. A third basis for" }, { "docid": "267125", "title": "", "text": "to MHW-I’s. On the basis of these three factors in the absence of direct evidence of discriminatory intent, the trial court found that the moratorium on promotions was not the result of a decision or desire or purpose to discriminate against blacks. Giles, on appeal, challenges the trial court’s reliance on the registers, urging that the entire population of MHW-I’s is the appropriate pool of applicants who have suffered injury to their advancement opportunities. It would have been futile to apply for promotion avers Giles, and, accordingly, each MHW-I has suffered injury. At trial, Giles introduced the testimony of Dr. Rogers on the futility of applying for promotion to MHW-II. The law will not require futile acts and Giles quite properly amplifies the vitality of that principle under title VII. It is well recognized that “unlawful employment practices may be so successful as to totally deter victims of gross and pervasive discrimination from applying.” The futility doctrine is applied where the nonapplicant meets the not always easy burden of proving that he or she would have applied for the job had it not been for the employer’s discriminatory practices. Not all MHW-I’s were qualified and eligible for promotion to MHW-II. A large number of MHW-I’s at Partlow apparently did not view applying for promotion a “vain and useless exercise.” The 1977 and 1979 registers each contain the names of approximately 100 eligibles. Apart from Dr. Rogers’ testimony, which failed to persuade the trial court, Giles offered no direct evidence to establish the futility of applying for promotion. We cannot agree with Giles that the decision of the Supreme Court in International Brotherhood of Teamsters v. United States, requires that the futility rule be invoked in this case. In Teamsters, the Court stated that [individual nonapplicants must be given an opportunity to undertake their difficult task of proving that they should be treated as applicants and therefore are presumptively entitled to relief accordingly. The Court’s discussion of nonapplicants in Teamsters, however, was in the context of determining entitlement to relief. Disparate treatment was found in that case on the basis of" }, { "docid": "889347", "title": "", "text": "few as two or three persons. To require a senior, experienced white member of such a group to stand aside and forego the seniority benefits guaranteed him by the New York Education Law and his union contract, solely because a younger, less experienced member is Black, or Puerto Rican is constitutionally forbidden reverse discrimination.” (footnote and citation omitted) id. at 998-999. This Court agrees with, and adopts, the Second Circuit’s observation that entry level quotas have a diffuse and less ascertainable effect than a quota used to hinder the promotional opportunities of readily identifiable members of the employer’s work force. White v. Carolina Paperboard Corp., 564 F.2d 1073 (4th Cir. 1977); Lige v. Town of Montclair, 72 N.J. 5, 367 A.2d 833 (1976); Commonwealth of Pennsylvania v. O’Neill, 348 F.Supp. 1084 (E.D.Pa.1972), aff’d in part, 473 F.2d 1029 (3rd Cir. 1973); EEOC v. Local 638 of The Sheet Metal Workers International Association, 532 F.2d 821 (2nd Cir. 1976). In the entry level quota it is difficult to determine who it is that is being kept out and therefore less objectionable as a temporary remedy imposed by the courts pursuant to Section 706(g) of Title VII. However, where the indefinite quota, whether court imposed or voluntary, is in the area of promotions and prior discrimination has not been shown to exist with regard to the same, regardless of whether discrimination did or did not occur at the entry level, this is the type of narrowly focused ascertainable discrimination which is forbidden under Title VII of the Act. Accordingly, for the reasons set forth above, the Court is bound, as a matter of law, to conclude that the defendants’ voluntary affirmative action plan violates Sections 703(a), (e), (h), (j) and 706(g) of Title VII of the Act. Moreover, inasmuch as the Court’s Findings of Fact demonstrate that defendants have received federal financial assistance in connection with their racial preference plan the Court is bound to conclude, as a matter of law, that defendants have also violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Flanagan v. President" }, { "docid": "22208428", "title": "", "text": "judgments against all the losing plaintiffs. We note secondly that the district court erred as a matter of law in requiring plaintiffs to show that they had in fact applied for the jobs or promotions in question. Teamsters holds that nonapplicants may be entitled to relief where the employer’s clear policy of exclusion would make an application a useless exercise. See id. at 367-68, 97 S.Ct. at 1870-71. Such a claim “requires two distinct determinations: that [the nonapplicant] would have applied but for discrimination and that he would have been discriminatorily rejected had he applied.” Id. at 368 n. 52, 97 S.Ct. at 1871 n. 52. Where no policy of exclusion is actually in place, but the employer continues to hire by word of mouth or other informal methods, a nonapplicant may still recover. In Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133 (11th Cir.1984), we held that when there is no formal notice of the job’s availability, the plaintiff may have no means, within his own knowledge, of showing whether the employer considered him or not. Furthermore, when an employer uses such informal methods it has a duty to consider all those who might reasonably be interested as well as those who have learned of the job opening and expressed an interest. Accordingly, a plaintiff makes out a prima facie case — that is, he creates a presumption of discrimination and forces the employer to articulate legitimate reasons for his rejection — as long as he establishes that the company had some reason or duty to consider him for the post. The record indicates that the defendant did use informal application procedures. Thus, under Carmichael, the employer should have considered each of the losing plaintiffs for any and all positions for which they could show that ACIPCO was on notice that they “might reasonably be interested.” Again, since none of the plaintiffs had an opportunity to make such a showing, we are compelled to reverse the judgments against these claimants. Apart from these across-the-board errors, we note a number of other misinterpretations of law that further taint the" }, { "docid": "22208427", "title": "", "text": "of unlawful discrimination.” Id. at 358 n. 44, 97 S.Ct. at 1866 n. 44. Once the trial court found that ACIPCO in fact had a policy of reserving plant clerical jobs for men, these individuals were in substantially the same position as the Teamsters and Franks plaintiffs— that is, they had proven that sex discrimination “was the company’s standard operating procedure,” and they were entitled to the presumption that the complained-of employment practices violated Title VII. Although the district court points to a gradual “withering” of this discriminatory policy triggered by the. filing of EEOC claims in 1973, it made no finding as to when this pattern and practice was withered sufficiently to have no effect on plaintiffs. Thus, we cannot determine from the district court’s opinion exactly which individuals at which times should have had the benefit of a presumption of discrimination. Nor can we conclude in any case that the employer clearly met its burden of proving that its actions were undertaken for lawful reasons. For this reason alone, we must reverse the judgments against all the losing plaintiffs. We note secondly that the district court erred as a matter of law in requiring plaintiffs to show that they had in fact applied for the jobs or promotions in question. Teamsters holds that nonapplicants may be entitled to relief where the employer’s clear policy of exclusion would make an application a useless exercise. See id. at 367-68, 97 S.Ct. at 1870-71. Such a claim “requires two distinct determinations: that [the nonapplicant] would have applied but for discrimination and that he would have been discriminatorily rejected had he applied.” Id. at 368 n. 52, 97 S.Ct. at 1871 n. 52. Where no policy of exclusion is actually in place, but the employer continues to hire by word of mouth or other informal methods, a nonapplicant may still recover. In Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133 (11th Cir.1984), we held that when there is no formal notice of the job’s availability, the plaintiff may have no means, within his own knowledge, of showing whether the employer considered" }, { "docid": "15123339", "title": "", "text": "promotion policies. While many of the company’s employees had applied for promotions and been discriminatorily rejected, others had not applied because the company’s discriminatory practices were well known to them. The company argued that the failure to apply barred recovery because the nonap-plicants did not suffer direct harm from discrimination. Deciding which employees were entitled to relief, the Supreme Court had this to say: [T]he company’s assertion that a person who has not actually applied for a job can never be awarded seniority relief\" cannot prevail_ A consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection_ When a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application. 431 U.S. at 365-66, 97 S.Ct. at 1869-70. The Court remanded the case with instructions to determine which nonapplicants would have applied but for the company’s practices. 431 U.S. at 368. The Court limited recovery to those employees whose demonstrable interest in the position was cut short by actual knowledge of unlawful practices. Subsequent cases in our court and others demonstrate how integral to fair employment law the futile gesture idea has become. See, e.g., Holsey v. Armour & Co., 743 F.2d 199, 208-09 (4th Cir.1984); United States v. Gregory, 871 F.2d 1239, 1242 (4th Cir.1989); Babrocky v. Jewel Food Co., 773 F.2d 857, 867 (7th Cir.1985). It is now accepted that the failure to apply for a job does not preclude recovery if a claimant can demonstrate that he would have applied but for accurate knowledge of an employer’s discrimination and that he would have been discriminatorily rejected had he actually applied. Of course, this is in addition to the other elements of a given employment claim such as possessing the necessary qualifications for the job. Armistead insists that the futile gesture doctrine is an inappropriate basis" }, { "docid": "13342104", "title": "", "text": "as to whether the training and promotion of which they complain is limited to training within labor service and promotion from labor service to official service or whether plaintiffs also complain of training and promotion within the official service itself. In view of the scope of the requested relief, however, it appears that plaintiffs challenge intra-category as well as inter-category promotional opportunities, and training in the official service as well as in the labor service. The challenged actions of the defendants, therefore, include recruitment and hiring into, and training and promotion within the official service category and promotion between labor service and official service. In order to have standing to assert their recruitment and hiring claims, plaintiffs must allege concrete and perceptible injury suffered as a result of defendants’ discriminatory recruitment and hiring. Yet they nowhere allege that they have applied for employment in the official service, nor that they would be qualified for official service employment had they applied. Failure to apply is not always fatal to standing. In International Brotherhood of Teamsters v. United States, 1977, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396, a Title VII case, the Supreme Court held, at 364-68, that relief could be awarded to nonapplicants if they were able to prove that but for the discrimination of which they complain, they would have applied for the positions. Presumably, in order to have suffered injury by being deterred from applying, the nonapplicant would also have had to have been qualified for the desired position. Although the Court in Teamsters did not analyze the issue expressly in standing terms, the holding has obvious implications for the standing question. Failure to apply, moreover, will not defeat standing if the nonapplicant had no knowledge of the availability of the position because of the discriminatory recruitment practices he challenges. See, Curran v. Portland Super. Sch. Committee, etc., D.Maine, 1977, 435 F.Supp. 1063, 1071-72. Curran distinguishes Jackson v. Dukakis, 1 Cir. 1975, 526 F.2d 64, a Title VII case holding that plaintiff, who had never applied for employment, lacked standing since he never placed himself in a" } ]

[ { "docid": "13713989", "title": "", "text": "McMAHON, District Judge. INTRODUCTION Before the Court is the appeal of the defendants in two adversary proceedings from an order of the Bankruptcy Court (Gonzalez, J.) denying their motions for summary judgment. See Enron Creditors Recovery Corp. v. J.P. Morgan Sec., Inc. (In re Enron Creditors Recovery Corp.), 407 B.R. 17 (Bankr.S.D.N.Y.2009). This Court granted the motion of the defendants (Alfa and ING) for permission to appeal on a limited question. See Alfa, S.A.B. de C.V. v. Enron Creditors Recovery Corp. (In re Enron Creditors Recovery Corp.), Nos. M-47 & M-47(a), 2009 WL 3349471 (S.D.N.Y. Oct. 16, 2009). The instant appeal is limited to a single question — whether the § 546(e) “safe harbor,” which bars avoidance of transfers that constitute “settlement payments” made in connection with transactions in securities, extends to transactions in which commercial paper is redeemed by the issuer prior to maturity, using the customary mechanism of the Depository Trust Company (the “DTC”) for trading in commercial paper (the “Redemption”), without regard to extrinsic facts about the nature of the Redemption, the motive behind the Redemption, or the circumstances under which the payments were made. Defen dants, supported by the Securities and Exchange Commission (the “SEC”), take the position that the prepayment (redemption) of debt evidenced by commercial paper (which no one seriously disputes is a “security” as that term is used in the Bankruptcy Code), using the mechanism of the DTC, is a “transaction in securities.” They further argue that every payment made to close out such a transaction qualifies as a “settlement payment” as long as it is effected by a broker or financial institution, without regard to whether the underlying transaction was out of the ordinary from a commercial point of view. Enron takes the opposite position: that the prepayment of debt is not a “transaction in securities” because there was no “purchase or sale” of securities. For that reason, Enron argues, the payment used to effect the redemption and retirement of the debt securities does not qualify as a “settlement payment,” no matter the role of the DTC or any broker or financial" } ]

[ { "docid": "17366042", "title": "", "text": "“settlement payments” made by, to, or on behalf of a number of participants in the financial markets. By restricting a bankruptcy trustee’s power to recover payments that are otherwise avoidable under the Bankruptcy Code, the safe harbor stands “at the intersection of two important national legislative policies on a collision course-the policies of bankruptcy and securities law.” In re Resorts Int’l, Inc., 181 F.3d 505, 515 (3rd Cir.1999) (internal quotation marks omitted). Section 741(8), which § 546(e) incorporates, defines “settlement payment” rather circularly as “a preliminary settlement payment, a partial settlement payment, an interim settlement payment, a settlement payment on account, a final settlement payment, or any other similar payment commonly used in the securities trade.” The parties, following our sister circuits, agree that courts should interpret the definition, “in the context of the securities industry,” as “the transfer of cash or securities made to complete [a] securities transaction.” Contemporary Indus. Corp. v. Frost, 564 F.3d 981, 985 (8th Cir.2009) (quoting In re Resorts Int’l, Inc., 181 F.3d at 515). Although our circuit has not yet addressed the scope of § 741(8)’s definition, other circuits have held it to be “extremely broad.” In re QSI Holdings, Inc., 571 F.3d 545, 549 (6th Cir.2009) (quoting Contemporary Indus. Corp., 564 F.3d at 985). Several circuits, for example, have rejected limitations on the definition that would exclude transactions in privately held securities or transactions that do not involve financial intermediaries that take title to the securities during the course of the transaction. See, e.g., In re Plassein Int’l Corp., 590 F.3d 252, 258-59 (3rd Cir.2009); In re QSI Holdings, Inc., 571 F.3d at 549-50; Contemporary Indus. Corp., 564 F.3d at 986. No circuit has yet addressed the safe harbor’s application to an issuer’s early redemption of commercial paper. Alfa and ING argue that Enron’s redemption payments are settlement payments within the meaning of § 741(8) because they completed a transaction involving the exchange of money for securities. The SEC and the Securities Industry and Financial Markets Association, a trade group representing the interests of securities firms, banks, and asset managers, have filed amicus" }, { "docid": "2019326", "title": "", "text": "transactions. . In the earlier transactions, pursuant to which the ING Funds and Alfa purchased Enron's commercial paper, JP Morgan acted in its customary role as principal. . At the Hearing, Alfa's counsel conceded that, as a legal matter, if JP Morgan, indeed, acted as an agent, it did not matter whether Alfa was aware of its role for purposes of determining whether the transfer was subject to a preference. . As previously noted, had those commercial paper holders waited until maturity, the transfers would have been protected from avoidance. The protection, however, would have been provided by the section 547(c)(2) ordinary course of business defense, and not by the safe harbor. . The Investors also argue that the legislative history of the 1982 and 1984 amendments to sections 546(e) and 741(8) support a finding that section 546(e) applies to commercial paper. Enron argues that the legislative history of those amendments, as well as the legislative history of the 1984 amendments to section 547(c)(2) clearly indicate that the section 546(e) safe harbor was not intended to protect commercial paper payments from avoidance. There is some merit to both arguments. The Investors are correct to the extent that section 546(e) applies to the purchase and sale of commercial paper. However, the legislative history of sections 547(c)(2) supports the finding, as Enron argues, that the 546(e) safe harbor does not apply to a redemption of commercial paper. While Enron argues that section 546(e) does not apply at all to commercial paper, the Court limits the finding to the issue of redemption. The legislative history and the case law imply that redemption of commercial paper at maturity is not covered by the safe harbor. See e.g., Union Bank v. Wolas, 502 U.S. 151, 157 n. 10, 112 S.Ct. 527, 531 n. 10, 116 L.Ed.2d 514 n. 10 (1991). Rather, the 547(c) ordinary course defense protects maturity payments from avoidance. Originally, the ordinary course defense provided protection only for debts incurred within 45 days. The amendment eliminating that time restriction for its application, was implemented, in part, to address concerns by commercial paper issuers" }, { "docid": "17366030", "title": "", "text": "JOHN M. WALKER, JR., Circuit Judge: This appeal raises an issue of first impression in the courts of appeals: whether 11 U.S.C. § 546(e), which shields “settlement payments” from avoidance actions in bankruptcy, extends to an issuer’s payments to redeem its commercial paper pri- or to maturity. Enron Creditors Recovery Corp. (“Enron”) seeks to avoid and recover payments Enron made to redeem its commercial paper prior to maturity from Appellees Alfa, S.A.B. de C.V. (“Alfa”), ING VP Balanced Portfolio, Inc., and ING VP Bond Portfolio, Inc. (collectively, “ING”), whose notes were redeemed by Enron. Alfa and ING argue that § 546(e) protects these payments from avoidance. The Bankruptcy Court for the Southern District of New York (Arthur J. Gonzalez, Bankruptcy Judge) concluded that § 546(e)’s safe harbor does not protect Enron’s payments from avoidance because they were made to retire debt, not to purchase securities, and because they were extraordinary. The District Court for the Southern District of New York (Colleen McMahon, Judge) held that Enron’s payments do fall within the safe harbor, reversed the Bankruptcy Court’s decision, and remanded with instructions to enter summary judgment in favor of Alfa and ING. On appeal, Enron challenges the district court’s conclusion that the safe harbor protects Enron’s redemption payments whether or not they were made to retire debt or were unusual. Because we agree with the district court that Enron’s proposed exclusions from the reach of § 546(e) have no basis in the Bankruptcy Code, we AFFIRM its decision and order. BACKGROUND After a series of events in the latter half of 2001, including the resignation of its CEO, Jeffery Skilling, its announcement of $600 million in third-quarter losses, the commencement of an SEC investigation into its practices, and the correction of four years’ worth of financial statements, Enron, a Houston-based energy company, collapsed. See, e.g., David S. Hilzenrath, Early Warnings of Trouble at Enron, Wash. Post, Dec. 30, 2001, at A10. On December 2, 2001, Enron petitioned for Chapter 11 bankruptcy. This appeal arises out of Enron’s attempt to avoid and recover pre-petition payments it made to redeem, prior to" }, { "docid": "17366036", "title": "", "text": "settlement payment, a partial settlement payment, an interim settlement payment, a settlement payment on account, a final settlement payment, or any other similar payment commonly used in the securities trade.” The bankruptcy court denied the motion to dismiss. It held that the phrase “commonly used in the securities trade” in § 741(8) modifies all the terms in the section’s definition and thereby limits protected “settlement payments” to those that are common in the industry. In re Enron Corp., 325 B.R. 671, 685-86 & n. 7 (Bankr. S.D.N.Y.2005) (“Enron /”). The bankruptcy court held that evidence was necessary to determine whether the redemption payments were commonly used, rather than, as Enron alleged, extraordinary because they resulted from coercion by holders of the commercial paper. Id. at 686. It also held that a factual issue existed over whether Enron’s redemption payments were made to retire debt or to purchase the commercial paper, and that this distinction could affect whether the payments constituted settlement payments. Id. Most of the defendants settled with Enron after Judge Gonzalez denied their motions to dismiss. Following discovery, Alfa and ING, relying on § 546(e)’s safe harbor, moved for summary judgment. The bankruptcy court denied the motions. In re Enron Creditors Recovery Corp., 407 B.R. 17, 45 (Bankr.S.D.N.Y.2009) (“Enron II”). Concluding that “the transfer of ‘ownership’ of a security is an integral element in the securities settlement process,” it held that “settlement payments” include only payments made to buy or sell securities and not payments made to retire debt. Id. 37-41. The bankruptcy court relied on our decision in SEC v. Sterling Precision Corp., 393 F.2d 214 (2d Cir.1968), in which we held .that “a maker’s paying a note prior to maturity in accordance with its terms would not be regarded as a ‘purchase’ ” under the Investment Company Act of 1940. Enron II, 407 B.R. at 38 (quoting Sterling Precision, 393 F.2d at 217). The bankruptcy court concluded that Alfa and ING had not demonstrated that Enron’s payments were settlement payments as defined in § 741(8), because they had failed to establish that the payments were made" }, { "docid": "17366039", "title": "", "text": "the redemption. See In re Enron Creditors Recovery Corp., 422 B.R. 423, 424 (S.D.N.Y.2009) {“Enron IV”). The district court reversed the bankruptcy court. It concluded that § 546(e)’s safe harbor protects Enron’s redemption payments, and directed entry of summary judgment in favor of Alfa and ING. Id. at 442. The district court held (1) that § 741(8)’s definition of “settlement payment” is not limited to payments that are “commonly used,” and, therefore, that the circumstances of a particular payment do not bear on whether that payment fits within the definition, id. at 429-34; (2) that a “settlement payment is any transfer that concludes or consummates a securities transaction,” id. at 436; and (3) that Enron’s redemption constitutes a securities transaction regardless of whether Enron acquired title to the commercial paper, because the redemption involved “the delivery and receipt of funds and securities,” id. at 435-42. Enron appealed to this court. DISCUSSION On appeal, Enron argues that the bankruptcy court’s decision was correct and that the district court erred by holding that settlement payments under § 741(8) are not limited to those that are commonly used in the securities trade and that involve the transfer of title to a security. “A district court’s order in a bankruptcy ease is subject to plenary review, meaning that this Court undertakes an independent examination of the factual findings and legal conclusions of the bankruptcy court.” In re Duplan Corp., 212 F.3d 144, 151 (2d Cir.2000). Here, we review only the issue the district court agreed to hear on appeal: whether the § 546(e) ‘safe harbor’ ... extends to transactions in which commercial paper is redeemed by the issuer prior to maturity, using the customary mechanism of the Depository Trust Company ... for trading in commercial paper ..., without regard to extrinsic facts about the nature of the [transactions], the motive behind the [transactions], or the circumstances under which the payments were made. Enron IV, 422 B.R. at 424. As several of our sister circuits have held, the meaning of “settlement payment” under § 741(8) is a matter of statutory construction and thus a question" }, { "docid": "17366058", "title": "", "text": "court’s decision reversing the decision of the Bankruptcy Court and directing entry of summary judgment in favor of Alfa and ING. . This opinion will refer to Enron Corp. and the reorganized entity, Enron Creditors Recovery Corp., collectively as \"Enron.” . Whether the reacquisition of commercial paper at issue in this appeal is properly char acterized as a redemption or a repurchase remains an open issue. See Enron II, 407 B.R. at 45. Because the district court addressed on appeal only whether the safe harbor protects an issuer's premature redemption of commercial paper, we do not have occasion to address the distinction between a premature redemption and an issuer's repurchase of commercial paper. . The dissent characterizes these decisions as \"standing] for the proposition that, if Section 546(e) applies to a particular 1ype of transaction-namely, purchases of equity securities-an individual transaction does not lose safe-harbor protection simply because it does not involve a central counterparty.” Dissent at 344. We have difficulty understanding the import of this characterization. We rely on these decisions as support for rejecting En ron’s argument that a transaction must involve a central counterparty to receive safe-harbor protection. The dissent argues that Congress enacted the safe harbor out of \"concern for the stability of central counterparties that guarantee both sides of a securities transaction.” But the dissent does not appear to dispute our, or the Third, Sixth, and Eighth Circuits’, rejection of a restriction on the safe harbor that would limit it to transactions involving central counterparties. . We reject, as the district court did, Enron's attempt to supplant the Bankruptcy Code’s definition of \"security” with the definition in the Securities Exchange Act of 1934, which excludes short-term commercial paper. 15 U.S.C. § 78c(a)(10). This case calls on us to interpret a provision of the Bankruptcy Code. It makes little sense to look to a definition from a different statutory scheme, particularly when that definition contradicts the Bankruptcy Code's. JOHN G. KOELTL, District Judge, dissenting: The Court today concludes that Section 546(e) of the Bankruptcy Code, 11 U.S.C. § 546(e), which exempts a “settlement payment” from a" }, { "docid": "17366048", "title": "", "text": "commercial paper noteholders, Enron II, 407 B.R. at 31 — or some other factor. This reading of the statute would result in commercial uncertainty and unpredictability at odds with the safe harbor’s purpose and in an area of law where certainty and predictability are at a premium. Accordingly, we hold that the phrase “commonly used in the securities industry” limits only the phrase immediately preceding it; it does not limit the other transactions that § 741(8) defines as settlement payments. III. Redemption of Debt Securities Enron next argues that the redemption payments are not settlement payments because they involved the retirement of debt, not the acquisition of title to the commercial paper. We find no basis in the Bankruptcy Code or the relevant case-law to interpret § 741(8) as excluding the redemption of debt securities. Because Enron’s redemption payments completed a transaction in securities, we hold that they are settlement payments within the meaning of § 741(8). The bankruptcy court agreed with Enron’s position, relying in large part on our decision in SEC v. Sterling Precision Corp., 393 F.2d 214 (2d Cir.1968). See Enron II, 407 B.R. at 37-40. In Sterling Precision Corp., we held that an issuer’s redemption of bonds and preferred stock was not a “purchase” within the meaning of the Investment Company Act of 1940. 393 F.2d at 217. We based this conclusion, in part, on the fact that the issuer “did not acquire title to its Debentures or Preferred Stock; it discharged them.” 393 F.2d at 216-18. Drawing on this conclusion, the bankruptcy court held that Enron’s redemption payments do not constitute settlement payments under § 741(8) because Enron did not acquire title to the commercial paper it redeemed. Enron II, 407 B.R. at 38-40. Alfa and ING argue that Sterling Precision Corp. is not relevant to this case because it interpreted the Investment Company Act, not the Bankruptcy Code. Setting aside this argument, reliance on Sterling Precision Corp. ’s interpretation of the term “purchase” still makes sense only if we read a purchase or sale requirement into § 741(8). For the following reasons, we decline" }, { "docid": "17366038", "title": "", "text": "to acquire title to the commercial paper rather than to retire debt. Id. at 37-41. At several points in its opinion, the bankruptcy court, to buttress its denial of summary judgment, emphasized facts (most of which are disputed) regarding the allegedly unusual nature of Enron’s redemption. These include the above-market price Enron paid, the alleged insistence of the broker-dealers to act as intermediaries instead of principals, and the supposed rarity of commercial paper prepayments in general. See, e.g., id. at 37-38. Alfa and ING sought, and were granted by the district court, interlocutory review of the bankruptcy court’s decision denying summary judgment. See In re Enron Creditors Recovery Corp., No. 01-16034, 2009 WL 3349471 (S.D.N.Y. Oct.16, 2009) {“Enron III ”). The district court limited the scope of review to the question whether the § 546(e) safe harbor applies to an issuer’s redemption of commercial paper prior to maturity, effected through the customary mechanism of transacting in commercial paper through the Depository Trust Company, without regard to extrinsic facts, such as the motives and circumstances of the redemption. See In re Enron Creditors Recovery Corp., 422 B.R. 423, 424 (S.D.N.Y.2009) {“Enron IV”). The district court reversed the bankruptcy court. It concluded that § 546(e)’s safe harbor protects Enron’s redemption payments, and directed entry of summary judgment in favor of Alfa and ING. Id. at 442. The district court held (1) that § 741(8)’s definition of “settlement payment” is not limited to payments that are “commonly used,” and, therefore, that the circumstances of a particular payment do not bear on whether that payment fits within the definition, id. at 429-34; (2) that a “settlement payment is any transfer that concludes or consummates a securities transaction,” id. at 436; and (3) that Enron’s redemption constitutes a securities transaction regardless of whether Enron acquired title to the commercial paper, because the redemption involved “the delivery and receipt of funds and securities,” id. at 435-42. Enron appealed to this court. DISCUSSION On appeal, Enron argues that the bankruptcy court’s decision was correct and that the district court erred by holding that settlement payments under §" }, { "docid": "17366057", "title": "", "text": "proposed exclusions from the definition of settlement payment and the safe harbor. The payments at issue were made to redeem commercial paper, which the Bankruptcy Code defines as a security. 11 U.S.C. § 101(49)(A)(i). They thus constitute the “transfer of cash ... made to complete [a] securities transaction” and are settlement payments within the meaning of § 741(8). See Contemporary Indus. Coyp., 564 F.3d at 985 (quoting In re Resorts Int’l, Inc., 181 F.3d at 515 (3rd Cir. 1999)). Because we reach this conclusion by looking to the statute’s plain language, we decline to address Enron’s arguments regarding legislative history, which, in any event, would not lead to a different result. See Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (“It is well established that when the statute’s language is plain, the sole function of the courts-at least where the disposition required by the text is not absurd-is to enforce it according to its terms.” (internal quotation marks omitted)). CONCLUSION For the foregoing reasons, we AFFIRM the district court’s decision reversing the decision of the Bankruptcy Court and directing entry of summary judgment in favor of Alfa and ING. . This opinion will refer to Enron Corp. and the reorganized entity, Enron Creditors Recovery Corp., collectively as \"Enron.” . Whether the reacquisition of commercial paper at issue in this appeal is properly char acterized as a redemption or a repurchase remains an open issue. See Enron II, 407 B.R. at 45. Because the district court addressed on appeal only whether the safe harbor protects an issuer's premature redemption of commercial paper, we do not have occasion to address the distinction between a premature redemption and an issuer's repurchase of commercial paper. . The dissent characterizes these decisions as \"standing] for the proposition that, if Section 546(e) applies to a particular 1ype of transaction-namely, purchases of equity securities-an individual transaction does not lose safe-harbor protection simply because it does not involve a central counterparty.” Dissent at 344. We have difficulty understanding the import of this characterization. We rely on these decisions as support for" }, { "docid": "12599032", "title": "", "text": "A Reverse Repo basically is the reverse: the dealer buys securities and agrees to resell the securities to the seller in the future. Reverse Repos can function as a loan. The seller receives cash for the securities, but must repurchase the securities in the future at the same price. Thus, the securities “sold” to the dealer can be viewed as being collateral for a “loan.” Jonas, 971 F.2d at 323. The court held that the debtor’s return of $9.25 million worth of securities to Great American Federal Savings & Loan was an unavoidable transfer pursuant to Section 546(e). The securities represented “additional margin” in a securities transaction that the parties cancelled. In Enron Creditors Recovery Corp. v. Alfa, S.A.B. de C.V., 651 F.3d 329, 331-33 (2d Cir.2011), the Second Circuit discussed the circumstances surrounding Enron’s early redemption of its commercial paper: Enron argues that it made the redemption payments under pressure from noteholders seeking to recover on their investments amidst rumors of Enron’s imminent implosion. Alfa and ING argue that Enron redeemed its commercial paper to “calm the irrational markets” and leave a favorable impression that would allow it to reenter the commercial paper market once “bad publicity” about the company’s stability “had blown over.” Enron, 651 F.3d at 331-32. In spite of facts that reflect the kind of rushed effort that might favor one creditor over another, the Second Circuit ruled that Enron’s early redemption of its commercial paper involved settlement payments protected by the safe harbor of Section 546(e). Id. at 335. a. EFFECT OF TAINT OF FRAUD The court cannot accept the Trustee’s position that the redemption payments herein are not settlement payments eligible for safe harbor protection because they may be tainted by fraud. Congress did not exempt all fraudulent transfers from safe harbor protection, only those involving actual fraud, claims that allege that a debtor acted “with actual intent to hinder, delay or defraud any entity” to which the debtor was indebted. 11 U.S.C. § 548(a)(1)(A). Congress’ judgment call on this matter is clear from the opening language of Section 546(e): notwithstanding sections ... 548(a)(1)(B)" }, { "docid": "13713997", "title": "", "text": "Appellee Enron Creditors Recovery Corp., Oct. 29, 2009 (“Appellee’s Br”), at 4.) The Bankruptcy Court (Gonzalez, J.) denied the motions to dismiss. See Enron Corp. v. J.P. Morgan Sec., Inc. (In re Enron Corp.), 325 B.R. 671, 686 (Bankr.S.D.N.Y.2005) (“Enron I ”). Judge Gonzalez did not reach all of the issues raised by Enron. He did, however, make two critical rulings. First, Judge Gonzalez held that: because the § 546(e) safe harbor only protects from avoidance those settlement payments that are “commonly used in the securities trade” and because, on a motion to dismiss, the Court must accept Enron’s allegations as true, evidence must be presented as to whether payments made with respect to short-term commercial paper prior to the maturity date, at significantly above market prices and contrary to the offering documents in the midst of coercion by the holders of the commercial paper resulting from public announcements that make clear that the company is in a severe financial crisis constitute settlement payments commonly used in the securities trade. Enron I, 325 B.R. at 685-686. Put otherwise, the learned bankruptcy judge ruled that the uncommon nature of the transaction might impact whether the payments qualified as “settlement payments.” Second, Judge Gonzalez held that: evidence is also necessary as to whether the Transfers [early redemptions] were made to retire and extinguish the debt or to trade the securities. If the payments were made to retire the debt, the Court would need to address the issue of whether such payments — which were not then for the purchase, sale or loan of securities but were to satisfy the underlying debt obligation — are nonetheless settlement payments for the purposes of § 546(e). Id. at 686. Judge Gonzalez thus signaled the possibility that a settlement payment might be limited to particular types of securities transactions, of which redemption was not one. Enron II Following Judge Gonzalez’s decision in Enron I, most creditors filed motions for leave to file an interlocutory appeal. These motions were denied in 2007 by my colleague, Judge Daniels. After discovery, those creditors who had not already settled with" }, { "docid": "17366034", "title": "", "text": "redemption price. The parties dispute the circumstances and motives surrounding Enron’s redemption. Enron argues that it made the redemption payments under pressure from noteholders seeking to recover on their investments amidst rumors of Enron’s imminent implosion. Alfa and ING argue that Enron redeemed its commercial paper to “calm the irrational markets” and leave a favorable impression that would allow it to reenter the commercial paper market once “bad publicity” about the company’s stability “had blown over.” They argue that the redemption was an economically rational move that allowed Enron to refinance its existing commercial paper debt with debt at a lower interest rate. II. Procedural History In November 2003, two years after Enron filed for bankruptcy, the reorganized entity brought adversary proceedings against approximately two hundred financial institutions, including appellees Alfa and ING, seeking to avoid and recover the redemption payments. It alleged that the payments were recoverable as (1) preferential transfers under 11 U.S.C. § 547(b), because they were made on account of an antecedent debt within ninety days prior to bankruptcy, and (2) constructively fraudulent transfers under 11 U.S.C. § 548(a)(1)(B), because the redemption price exceeded the commercial paper’s fair market value. In 2004, the defendants in the adversary proceedings moved to dismiss Enron’s complaint for failure to state a claim. They argued that the redemption payments were “settlement payments” protected from avoidance under 11 U.S.C. § 546(e)’s safe harbor. Section 546(e) provides, in relevant part, that [notwithstanding sections ... 547 [and] 548(a)(1)(B) ... of this title, [which empower the trustee to avoid preferential and constructively fraudulent transfers,] the trastee may not avoid a transfer that is a ... settlement payment, as defined in section ... 741 of this title, made by or to (or for the benefit of) a ... stockbroker, financial institution, financial participant, or securities clearing agency ... that is made before the commencement of the case, except under section 548(a)(1)(A) of this title[, which empowers the trustee to avoid transfers made with actual intent to hinder, delay, or defraud creditors]. Section 741(8) of Title 11, in turn, defines a “settlement payment” as “a preliminary" }, { "docid": "13714001", "title": "", "text": "safe harbor as protecting the types of transactions at issue here.” Id. at 41 (emphasis added). Thus, the fact that the early redemptions were unusual was— at a minimum — important to the bankruptcy court’s reasoning. Second, while Judge Gonzalez did indeed conclude that “repayment and retirement” of “commercial paper debt” was not a “settlement payment” because “no securities transaction had occurred,” (Appellee’s Br. at 5 (citation omitted)), he actually went further, holding that only a securities transaction involving a “transfer of ownership” could be followed by a settlement payment that qualified for the section 546(e) safe harbor. Enron II, 407 B.R. at 39 (internal quotation marks omitted). Judge Gonzalez concluded that “the transfer of ‘ownership’ of a security is an integral element in the securities settlement process.” Id. He found that, in redeeming its notes, Enron never “acquire[d] title or ownership of the commercial paper” — a conclusion that, based on the papers submitted to this court, appears to be hotly disputed as a matter of fact. Id. (discussing ownership of the notes). Combined with the fact that the “payments made to the [creditors] were not based upon the prevailing market rate of the commercial paper,” Judge Gonzalez concluded that the redemptions were not “settlement payments” within the ambit of section 546(e)’s safe harbor. Id. He then set the matter for trial on the issue of whether JP Morgan had been acting as Enron’s agent during the Redemptions. This Court agreed to hear an appeal from Judge Gonzalez’s decision on an interlocutory basis. DISCUSSION I. Legislative History of the Safe Harbor Section 546 was first enacted in 1978 in response to a decision from a court in this District holding that the Bankruptcy Code did not prohibit a trustee from recovering a margin payment made to a commodities clearinghouse. See S. Rep. 95-989, at 106 (1978), as reprinted in 1978 U.S.C.C.A.N. 5787, 5892 (citing Seligson v. New York Produce Exchange, 394 F.Supp. 125 (S.D.N.Y.1975)). Then-codified as section 764(c), the safe harbor applied exclusively to margin payments from commodities clearing organizations and thus only protected transfers in “the ordinary course" }, { "docid": "13714019", "title": "", "text": "the rule of the last antecedent also preserves the intent of the statute’s drafters. In 1982, Congress broadened the scope of the safe harbor, in part to capture transactions “beyond the ordinary course of business.” Kaiser I, 913 F.2d 846, 849 (10th Cir.1990) (emphasis added, footnote omitted). There is no compelling reason to torture grammar in this case in order to reach a result that appears to undermine the intent of Congress. For the above reasons, this court reverses the holding of the Bankruptcy Court insofar as it limited the definition of settlement payment — and restricted the availability of Section 546(e)’s safe harbor from avoidance — to payments “commonly made” in the securities trade (i.e., made in connection with ordinary course securities transactions). III. The Payments At Issue are Settlement Payments within the meaning of the Safe Harbor Although the term “securities transaction” does not appear in either sections 546(e) or 741(8), Enron notes (correctly) that courts generally agree that “settlement payments” subject to the safe harbor are payments made in the context of a “securities transaction.” (Appellee’s Br. at 11 (citing cases).) Enron argues that, regardless of whether the definition of “settlement payment” is restricted to ordinary course transactions, the early redemption of its commercial paper in this case was not a “settlement payment” subject to the safe harbor because the redemption was not a “securities transaction” as purportedly required by the Bankruptcy Code. (Id.) To qualify as a “securities transaction” for purposes of the safe harbor, Enron contends that (i) the commercial paper at issue in this case has to meet the definition of a “security” under Section (3)(a)(10) of the Securities Exchange Act of 1934 (the “1934 Act”) — and it argues that the notes here at issue do not (id. at 24-25), and/or (ii) the underlying transaction has to involve the “purchase or sale” of a security' — and it appears that this transaction did not (id. at 11-12). Judge Gonzalez appears to have assumed that the notes evidencing Enron’s debt were securities, but he concluded that there was no qualifying securities transaction because no" }, { "docid": "13713999", "title": "", "text": "Enron moved for summary judgment, renewing the arguments they had made on the motion to dismiss. On June 29, 2009, the bankruptcy court denied those motions. See Enron Creditors Recovery Corp. v. J.P. Morgan Secs., Inc. (In re Enron Creditors Recovery Corp.), 407 B.R. 17 (Bankr.S.D.N.Y.2009) (“Enron IF’). Enron describes the bankruptcy court’s decision as having “re affirmed [the court’s] prior ruling that the ‘commonly used’ clause modified the definition of settlement payment in § 741(8),” even though the court “did not rely on this issue and instead ruled that Enron merely repaid and retired the commercial paper debt, which did not constitute a settlement payment, as no securities transaction had occurred.” (Appellee’s Br. at 5 (citing Enron II, 407 B.R., at 30-31, 37-41).) Enron’s description of Judge Gonzalez’s holding is somewhat inaccurate. First, in denying summary judgment, Judge Gonzalez repeatedly emphasized the unusual nature of Enron’s redemptions throughout his analysis of the applicability of the 546(e) safe harbor. See Enron II, 407 B.R. at 37-41. Specifically, Judge Gonzalez opined that whatever rules might apply to the redemption of commercial paper at maturity, “the transactions at issue [ ] were not conducted in the usual manner.” Id. at 37 (emphasis added). Indeed, he highlighted the fact that “in an orderly exit from the commercial paper market, the issuer usually draws down on its bank lines of credit to pay the commercial paper as it matures, not to prepay the commercial paper.” Id. at 38 (emphasis added). He also noted that “the record reflects that it was the insistence by the broker/dealers to depart from their usual role of principal in a commercial paper transaction that altered ‘business as usual ’ in the secondary market”; that “the broker/dealers were primary players in taking the transactions at issue outside the realm of what was common in the trade, by their efforts to depart from their usual role as principal”; and that “the insistence by each of the broker/dealers to act as agent, instead of their usual role of principal, further supports the proposition throughout the industry that no one readily considered the" }, { "docid": "17366043", "title": "", "text": "yet addressed the scope of § 741(8)’s definition, other circuits have held it to be “extremely broad.” In re QSI Holdings, Inc., 571 F.3d 545, 549 (6th Cir.2009) (quoting Contemporary Indus. Corp., 564 F.3d at 985). Several circuits, for example, have rejected limitations on the definition that would exclude transactions in privately held securities or transactions that do not involve financial intermediaries that take title to the securities during the course of the transaction. See, e.g., In re Plassein Int’l Corp., 590 F.3d 252, 258-59 (3rd Cir.2009); In re QSI Holdings, Inc., 571 F.3d at 549-50; Contemporary Indus. Corp., 564 F.3d at 986. No circuit has yet addressed the safe harbor’s application to an issuer’s early redemption of commercial paper. Alfa and ING argue that Enron’s redemption payments are settlement payments within the meaning of § 741(8) because they completed a transaction involving the exchange of money for securities. The SEC and the Securities Industry and Financial Markets Association, a trade group representing the interests of securities firms, banks, and asset managers, have filed amicus briefs in support of Alfa and ING’s interpretation of the statute. Enron proposes three limitations on the definition of settlement payment in § 741(8), each of which, it argues, would exclude the redemption payments. First, it contends that the final phrase of § 741(8) — “commonly used in the securities trade” — excludes all payments that are not common in the securities industry, including, Enron argues, Enron’s redemption. Second, Enron argues that the definition includes only transactions in which title to the securities changes hands. Because, Enron argues, the redemption payments here were made to retire debt and not to acquire title to the commercial paper, they are not settlement payments within the meaning of § 741(8). Finally, Enron argues that the redemption payments are not settlement payments because they did not involve a financial intermediary that took title to the transacted securities and thus did not implicate the risks that prompted Congress to enact the safe harbor. Because we find nothing in the Bankruptcy Code or the relevant caselaw that supports Enron’s proposed limitations" }, { "docid": "17366035", "title": "", "text": "constructively fraudulent transfers under 11 U.S.C. § 548(a)(1)(B), because the redemption price exceeded the commercial paper’s fair market value. In 2004, the defendants in the adversary proceedings moved to dismiss Enron’s complaint for failure to state a claim. They argued that the redemption payments were “settlement payments” protected from avoidance under 11 U.S.C. § 546(e)’s safe harbor. Section 546(e) provides, in relevant part, that [notwithstanding sections ... 547 [and] 548(a)(1)(B) ... of this title, [which empower the trustee to avoid preferential and constructively fraudulent transfers,] the trastee may not avoid a transfer that is a ... settlement payment, as defined in section ... 741 of this title, made by or to (or for the benefit of) a ... stockbroker, financial institution, financial participant, or securities clearing agency ... that is made before the commencement of the case, except under section 548(a)(1)(A) of this title[, which empowers the trustee to avoid transfers made with actual intent to hinder, delay, or defraud creditors]. Section 741(8) of Title 11, in turn, defines a “settlement payment” as “a preliminary settlement payment, a partial settlement payment, an interim settlement payment, a settlement payment on account, a final settlement payment, or any other similar payment commonly used in the securities trade.” The bankruptcy court denied the motion to dismiss. It held that the phrase “commonly used in the securities trade” in § 741(8) modifies all the terms in the section’s definition and thereby limits protected “settlement payments” to those that are common in the industry. In re Enron Corp., 325 B.R. 671, 685-86 & n. 7 (Bankr. S.D.N.Y.2005) (“Enron /”). The bankruptcy court held that evidence was necessary to determine whether the redemption payments were commonly used, rather than, as Enron alleged, extraordinary because they resulted from coercion by holders of the commercial paper. Id. at 686. It also held that a factual issue existed over whether Enron’s redemption payments were made to retire debt or to purchase the commercial paper, and that this distinction could affect whether the payments constituted settlement payments. Id. Most of the defendants settled with Enron after Judge Gonzalez denied their" }, { "docid": "17366037", "title": "", "text": "motions to dismiss. Following discovery, Alfa and ING, relying on § 546(e)’s safe harbor, moved for summary judgment. The bankruptcy court denied the motions. In re Enron Creditors Recovery Corp., 407 B.R. 17, 45 (Bankr.S.D.N.Y.2009) (“Enron II”). Concluding that “the transfer of ‘ownership’ of a security is an integral element in the securities settlement process,” it held that “settlement payments” include only payments made to buy or sell securities and not payments made to retire debt. Id. 37-41. The bankruptcy court relied on our decision in SEC v. Sterling Precision Corp., 393 F.2d 214 (2d Cir.1968), in which we held .that “a maker’s paying a note prior to maturity in accordance with its terms would not be regarded as a ‘purchase’ ” under the Investment Company Act of 1940. Enron II, 407 B.R. at 38 (quoting Sterling Precision, 393 F.2d at 217). The bankruptcy court concluded that Alfa and ING had not demonstrated that Enron’s payments were settlement payments as defined in § 741(8), because they had failed to establish that the payments were made to acquire title to the commercial paper rather than to retire debt. Id. at 37-41. At several points in its opinion, the bankruptcy court, to buttress its denial of summary judgment, emphasized facts (most of which are disputed) regarding the allegedly unusual nature of Enron’s redemption. These include the above-market price Enron paid, the alleged insistence of the broker-dealers to act as intermediaries instead of principals, and the supposed rarity of commercial paper prepayments in general. See, e.g., id. at 37-38. Alfa and ING sought, and were granted by the district court, interlocutory review of the bankruptcy court’s decision denying summary judgment. See In re Enron Creditors Recovery Corp., No. 01-16034, 2009 WL 3349471 (S.D.N.Y. Oct.16, 2009) {“Enron III ”). The district court limited the scope of review to the question whether the § 546(e) safe harbor applies to an issuer’s redemption of commercial paper prior to maturity, effected through the customary mechanism of transacting in commercial paper through the Depository Trust Company, without regard to extrinsic facts, such as the motives and circumstances of" }, { "docid": "13713998", "title": "", "text": "685-686. Put otherwise, the learned bankruptcy judge ruled that the uncommon nature of the transaction might impact whether the payments qualified as “settlement payments.” Second, Judge Gonzalez held that: evidence is also necessary as to whether the Transfers [early redemptions] were made to retire and extinguish the debt or to trade the securities. If the payments were made to retire the debt, the Court would need to address the issue of whether such payments — which were not then for the purchase, sale or loan of securities but were to satisfy the underlying debt obligation — are nonetheless settlement payments for the purposes of § 546(e). Id. at 686. Judge Gonzalez thus signaled the possibility that a settlement payment might be limited to particular types of securities transactions, of which redemption was not one. Enron II Following Judge Gonzalez’s decision in Enron I, most creditors filed motions for leave to file an interlocutory appeal. These motions were denied in 2007 by my colleague, Judge Daniels. After discovery, those creditors who had not already settled with Enron moved for summary judgment, renewing the arguments they had made on the motion to dismiss. On June 29, 2009, the bankruptcy court denied those motions. See Enron Creditors Recovery Corp. v. J.P. Morgan Secs., Inc. (In re Enron Creditors Recovery Corp.), 407 B.R. 17 (Bankr.S.D.N.Y.2009) (“Enron IF’). Enron describes the bankruptcy court’s decision as having “re affirmed [the court’s] prior ruling that the ‘commonly used’ clause modified the definition of settlement payment in § 741(8),” even though the court “did not rely on this issue and instead ruled that Enron merely repaid and retired the commercial paper debt, which did not constitute a settlement payment, as no securities transaction had occurred.” (Appellee’s Br. at 5 (citing Enron II, 407 B.R., at 30-31, 37-41).) Enron’s description of Judge Gonzalez’s holding is somewhat inaccurate. First, in denying summary judgment, Judge Gonzalez repeatedly emphasized the unusual nature of Enron’s redemptions throughout his analysis of the applicability of the 546(e) safe harbor. See Enron II, 407 B.R. at 37-41. Specifically, Judge Gonzalez opined that whatever rules might apply" }, { "docid": "17366044", "title": "", "text": "briefs in support of Alfa and ING’s interpretation of the statute. Enron proposes three limitations on the definition of settlement payment in § 741(8), each of which, it argues, would exclude the redemption payments. First, it contends that the final phrase of § 741(8) — “commonly used in the securities trade” — excludes all payments that are not common in the securities industry, including, Enron argues, Enron’s redemption. Second, Enron argues that the definition includes only transactions in which title to the securities changes hands. Because, Enron argues, the redemption payments here were made to retire debt and not to acquire title to the commercial paper, they are not settlement payments within the meaning of § 741(8). Finally, Enron argues that the redemption payments are not settlement payments because they did not involve a financial intermediary that took title to the transacted securities and thus did not implicate the risks that prompted Congress to enact the safe harbor. Because we find nothing in the Bankruptcy Code or the relevant caselaw that supports Enron’s proposed limitations on the definition of settlement payment in § 741(8), we reject them. We hold that Enron’s redemption payments fall within the plain language of § 741(8) and are thus protected from avoidance under § 546(e). II. “Commonly Used in the Securities Trade” Section 741(8) defines “settlement payment” as “a preliminary settlement payment, a partial settlement payment, an interim settlement payment, a settlement payment on account, a final settlement payment, or any other similar payment commonly used in the securities trade.” Enron argues that the phrase “commonly used in the securities trade” modifies all the preceding terms and thereby excludes from the definition all uncommon payments. We disagree. First, as the district court held, the grammatical structure of the statute strongly suggests that the phrase “commonly used in the securities trade” modifies only the term immediately preceding it: “any other similar payment.” Under the “rule of the last antecedent, ... a limiting clause or phrase ... should ordinarily be read as modifying only the noun or phrase that it immediately follows.” Barnhart v. Thomas, 540 U.S." } ]

[ { "docid": "22107354", "title": "", "text": "discussed by counsel. • But it is not necessary for us to consider and answer those questions, for, in view of the nature of the facts presented and the remedies prayed for in the bill proposed to be filed, we think that the suit is defective' for want of essential parties whose rights would be vitally affected by the relief sought therein. The general rule in equity is that all persons materially interested, either legally or beneficially, in the subject-matter of a suit, are to be made parties to it, so that there may be a complete decree, which shall bind them all. ■ By this means the court is enabled to make a complete decree between the parties, to prevent future litigation, by taking away the necessity of a multiplicity of suits, and to make it perfectly certain that no injustice is done, either to the parties beforé it, or to others who are interested in the' subject-matter, by a decree -which might otherwise be granted upon a partial view only of the real merits. When all the parties are before the court, the whole case may be seen; but it may not, where all-the conflicting interests are not brought out upon the pleadings by the original parties thereto. Story’s Eq. Plds. sec. 72. The established practice of courts of equity to dismiss the plaintiff’s bill if it appears that to grant the relief prayed for would injuriously affect persons materially interested in the subject-matter who are not made parties to the suit, is founded upon clear reasons, and may be enforced by the court, sua sponie, though not raised by the pleadings or suggested by the counsel. Shields v. Barrow, 17 How. 130; Hipp v. Babin, 19 How. 271, 278; Parker v. Winnipiseogee Lake Cotton and Woolen Co., 2 Black, 545. In the case of Shields v. Barrow, 17 How. 130, the question was fully discussed, and it was shown, upon a review of the previous cases, that there are three classes of parties to a bill in equity. They are: 1. Formal parties. 2. Persons having an" } ]

[ { "docid": "17447259", "title": "", "text": "for the obligations arising from the contract with Dancel, and it was held that the remedy of the plaintiffs was in equity, and not at law. The judgment was accordingly reversed, and the complaint dismissed, without prejudice, however, to an application by plaintiffs for leave to replead in equity. Permission to thus reframe the complaint into a bill of equity having been allowed, defendant interposed a plea to the jurisdiction on the ground that, as no equity process had been served, article 3, § 2, of the federal Constitution had been violated. The plea was overruled. Therefore the question of jurisdiction need not be again passed upon. Defendant contends that when the action was at law the question of parties was immaterial, while in equity a proper enforcement of the covenant is dependent upon the jurisdiction of the court over all parties whose rights may be affected by the decree sought; that, in the absence of the Connecticut Company, neither its obligation to complainants nor the assumption of such liability by the defendant can be established. That this court sitting in equity is unable to enforce a contract of indemnity, in the absence of a party whose rights are necessarily affected by the decree, is beyond dispute. Gregory v. Stetson, 133 U. S. 579, 10 Sup. Ct. 422, 33 L. Ed. 792; 16 Am. & Eng. Ency. Law (2d Ed.) 176; Turk v. Ridge, 41 N. Y. 201. This principle, however, is inapplicable here. The distinction between a right of recovery under a covenant in a bond of indemnity and an agreement to pay the debts and assume the obligations of the indemnitee is clear. Such covenant to indemnify does not impair a covenant to pay. Wicker v. Hoppock, 73 U. S. 94, 18 L. Ed. 752; In re Negus, 7 Wend. 503; Pork v. Jackson, 17 Johns. 239. To the same effect see Johnson v. Risk, 137 U. S. 300, 11 Sup. Ct. 111, 34 L. Ed. 683. Complainants’ chief contentions are based upon the asserted dissolution of the Connecticut Company and the surrender of its capital stock, together" }, { "docid": "8155242", "title": "", "text": "[17 L. Ed. 333].” To the same effect is the opinion of this court in Hawes v. First Nat. Bank, 229 Fed. 51, 57, 59, 143 C. C. A. 645, 651, 653. It is a familiar and just rule that no court may directly adjudicate a person’s claim of right, unless he is actually or constructively before it. It is an established rule of practice in the conduct of suits in equity in the federal courts that every indispensable party must be brought into the court or the suit must be dismissed. And an indispensable party is one who has such an interest in the subject-matter of the controversy that a final decree cannot be made without affecting his interests, or leaving the controversy in such a situation that its final determination may- be inconsistent with equity and good conscience. Seminole County -and each of the other holders of certificates of sale or of liens which they claim upon any of the lands described in the complaint which the plaintiff seeks to affect by this decree, was an indispensable party to this or any suit to avoid or injuriously affect his certificate or claimed lien. And as Justice Curtis said in Shields v. Barrow, 58 U. S. (17 How.) 130, 138, at 141 (15 L. Ed. 158): “It being clear that the Circuit Court could make no decree, as between the parties originally before it, so as to do complete and linal justice between them without affecting the rights of absent persons,” the original bill ought to have been dismissed. See Ribon v. Railroad Companies, 83 U. S. (16 Wall.) 446, 450, 451, 21 L. Ed. 367; Bank v. Carrollton Railroad, 78 U. S. (11 Wall.) 624, 630, 631, 20 L. Ed. 82; Bogart v. Southern Pacific Co., 228 U. S. 137, 146, 147, 33 Sup. Ct. 497, 57 L. Ed. 768; Chadbourne v. Coe, 51 Fed. 479, 481, 2 C. C. A. 327, 329; Howe v. Howe & Owen Ball Bearing Co., 154 Fed. 820, 828, 83 C. C. A. 536, 544; United States v. United Shoe Machinery Co." }, { "docid": "8155243", "title": "", "text": "decree, was an indispensable party to this or any suit to avoid or injuriously affect his certificate or claimed lien. And as Justice Curtis said in Shields v. Barrow, 58 U. S. (17 How.) 130, 138, at 141 (15 L. Ed. 158): “It being clear that the Circuit Court could make no decree, as between the parties originally before it, so as to do complete and linal justice between them without affecting the rights of absent persons,” the original bill ought to have been dismissed. See Ribon v. Railroad Companies, 83 U. S. (16 Wall.) 446, 450, 451, 21 L. Ed. 367; Bank v. Carrollton Railroad, 78 U. S. (11 Wall.) 624, 630, 631, 20 L. Ed. 82; Bogart v. Southern Pacific Co., 228 U. S. 137, 146, 147, 33 Sup. Ct. 497, 57 L. Ed. 768; Chadbourne v. Coe, 51 Fed. 479, 481, 2 C. C. A. 327, 329; Howe v. Howe & Owen Ball Bearing Co., 154 Fed. 820, 828, 83 C. C. A. 536, 544; United States v. United Shoe Machinery Co. (D. C.) 222 Fed. 349, 408. Let the decree below be reversed, and let the case be remanded to the court below, with directions to dismiss the suit for want of indispensable parties, unless within a short time, to be fixed by the court below, some of the indispensable parties are made parties to the suit, and in case the latter course is pursued, and the plaintiff should then be found entitled to any relief, to specifically limit the terms and effect of the decree to the interests of those indispensable parties, who are later made parties to the suit." }, { "docid": "9330597", "title": "", "text": "thing, to enjoin the Rake Shore Company from counting such stock or permitting it to be voted; to appoint a receiver of its equity in such stock and direct the disposition and management thereof; and to enjoin it from issuing its consolidation bonds in exchange for Rake Shore collateral trust bonds: the relief sought as to each of these matters being of a character which, necessarily, would directly affect its rights and property interests, and hence under the well settled rules above stated, could not be granted by the court in its absence. A stockholder in a corporation is an indispensable party to a suit seeking to enjoin him from voting his stock at a stockholders’ meeting. Taylor v. Southern Pacific Co. (C. C.) 122 Fed. supra, at page 152. The Read Committee, if not the Trust Company also, were, furthermore, indispensable parties to granting so much of the relief prayed as sought to enjoin the Rake Shore Company from carrying out its agreement with them for the purchase of its stock and to set aside any acquisition thereof. Gregory v. Stetson, 133 U. S. supra, at page 585, 10 Slip. Ct. 422, 33 L. Ed. 792; New Orleans Water Works v. New Orleans, 164 U. S. supra, at page 479, 17 Sup. Ct. 161, 41 L. Ed. 518; Lengel v. Smelting Co. (C. C.) 110 Fed. 19, 22. The New York Central Company was not, however, an indispensable party to so much of the petition as sought to enjoin the Rake Shore Company itself from entering into the proposed consolidation; which was alleged to be illegal under various provisions of law, entirely independent of the ownership and voting of the controlling stock held by the New York Central Company. In a suit by a stockholder to' enjoin a corporation in which he holds stock from entering into an illegal merger with another corporation, such other corporation need not be made a party; its interest being entirely remote. Blatchford v. Ross, 54 Barb. (N. Y.) 42, 47. When the original petition was filed the consolidation agreement had not been made" }, { "docid": "9330593", "title": "", "text": "Company, and the same placed in the hands of independent trustees to be managed in the interest of the Lake Shore Company in competition with all other lines; that the New York Central Company be enjoined from issuing its consolidation •bonds in exchange for Lake Shore collateral trust bonds; that if, pending the action, the proposed consolidation should be effected, the same be set aside; and for general relief. The motion of the Lake Shore Company to dismiss, which was directed to the entire petition, was based primarily upon the ground that the New York Central Company was an indispensable party, materially interested in the relief prayed, whose rights were so involved that a determination of the cause without its appearance would be inconsistent with equity; also, in general terms, upon want of equity on the face of the petition, and adequacy of remedy at law. (1) It is .a general rule in equity that all persons materially interested, either legally or beneficially, in the subject matter of a suit,, are to be made parties to it; that the court may be enabled to make a complete decree, prevent future litigation, and make it certain that no injustice is done, either to the parties before it or to others interested in the subject matter, by a decree granted upon a partial view of the real merits. Gregory v. Stetson, 133 U. S. 579, 586, 10 Sup. Ct. 422, 33 L. Ed. 792; Minnesota v. Northern Securities Co., 184 U. S. 199, 235, 22 Sup. Ct. 308, 46 L. Ed. 499; Story’s Eq. Plead. § 72. No court can adjudicate directly upon the rights of a person who is not actually or constructively before it. Mallow v. Hinde, 12 Wheat. 193, 198, 6 L. Ed. 599; Shields v. Barrow, 17 How. 129, 140, 15 L. Ed. 158; Gregory v. Stetson, 133 U. S. supra, at page 586, 10 Sup. Ct. 422, 33 L. Ed. 792; Taylor v. Southern Pacific Co. (C. C.) 122 Fed. 147, 152 (Lurton, Circuit Judge). Nor can it make a decree between the parties before it which" }, { "docid": "9330595", "title": "", "text": "necessarily affects the rights of an absent person; who is, in such case, an indispensable party. Shields v. Barrow, 17 How. supra, at page 141, 15 L. Ed. 158; Barney v. Baltimore City, 6 Wall. 280, 284, 18 L. Ed. 825; Gregory v. Stetson, 133 U. S. supra, at page 587, 10 Sup. Ct. 422, 33 L. Ed. 792; New Orleans Water Works v. New Orleans, 164 U. S. 471, 489, 17 Sup. Ct. 161, 41 L. Ed. 518; Waterman v. Bank Co., 216 U. S. 33, 48, 30 Sup. Ct. 10, 54 L. Ed. 80. And it is hence the established practice of courts of equity to dismiss a bill, even sua xponte, if it appears that to grant the relief prayed would injuriously affect persons materially interested in the subject matter who are not parties to the suit. Minnesota v. Northern Securities Co., 184 U. S. supra, at page 235, 22 Sup. Ct. 308, 46 L. Ed. 499. A bill is not, however, to be dismissed in its entirety because of the absence of a person who is indispensable to granting all the relief prayed, if there is any separable matter as to which complete relief may be given, not affecting the rights of such absent person. New Orleans Water Works v. New Orleans, 164 U. S. supra, at page 480, 17 Sup. Ct. 161, 41 L. Ed. 518 (inferentially); Waterman v. Bank Co., 215 U. S. supra, at page 49, 30 Sup. Ct. 10, 54 L. Ed. 80; Davis v. Davis (C. C.) 89 Fed. 532, 538. And see: Judicial Code, § 50 (formerly R. S. § 737 [Comp. St. 1916, § 1032]); Cole Mining Co. v. Water Co., 1 Sawy. 470, 6 Fed. Cas. 67, and Cole Mining Co. v. Water Co., 1 Sawy. 685, 6 Fed. Cas. 72. Applying these principles to the instant case, it is clear that the New York Central Company was an indispensable party to granting so much of the relief prayed as sought to enjoin it from voting .its stock in the Rake Shore Company, and, in effect the same" }, { "docid": "17883789", "title": "", "text": "heard for their defense and protection. Out of this principle has grown the rule, always recognized and enforced, that a suit will not be entertained in the absence of a person who has an interest in the controversy of such a nature that a final decree cannot be rendered without either affecting that interest or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience. Minnesota v. Northern Securities Company, 184 U. S. 199, 235, 22 Sup. Ct. 308, 46 L. Ed. 499; New Orleans Waterworks v. New Orleans, 164 U. S. 471, 17 Sup. Ct. 161, 41 L. Ed. 518; California v. Southern Pacific Company, 157 U. S. 229, 15 Sup. Ct. 591, 39 L. Ed. 683; Christian v. Railroad, 133 U. S. 233, 10 Sup. Ct. 260, 33 L. Ed. 589; Ribon v. Railroad Companies, 16 Wall. 446, 21 L. Ed. 367; Shields v. Barrow, 17 How. 130, 15 L. Ed. 158; Taylor v. Southern Pacific Company (C. C.) 122 Fed. 147; Hollifield v. Railroad Company, 99 Ga. 365, 27 S. E. 715; Joslyn v. St. Paul Distilling Company, 44 Minn. 184, 46 N. W. 337. Taylor v. Southern Pacific Company, Hollifield v. Railroad Company, supra, and the case at bar, are identical in important and controlling features. In each case the complainant was a minority stockholder of the defendant corporation, and in each case the complainant undertook to lay the ax at the root of the title of an absent stockholder. In the two cases cited it was held that the presence of a stockholder whose rights were attacked was indispensable to the accomplishment of the complainant’s purpose. It is true that, generally speaking, a corporation is the proper representative of all of its stockholders in a suit in which the relief sought will affect each and all of them in the same way and to the same degree. In one sense all of the stockholders are the corporation, and the corporate body, as a legal entity, may be intrusted with the defense of those rights which" }, { "docid": "7864257", "title": "", "text": "is one of substance; that is, whether the plaintiff can obtain relief which will later leave open to', the absent parties the effective assertion of’ their rights; Shields v. Barrow; 17 How. 129, 15 L. Ed. 158; Mallow v. Hinde, 12 Wheat. 193, 6 L. Ed. 599; Payne v. Hook, 7 Wall. 425, 19 L. Ed; 260;. Gregory v. Stetson, 133 U. S. 579, 10 S. Ct. 422, 33 L. Ed. 792; California v. So. Pac. Co., 157 U. S. 229,15 S. Ct. 591; 39 L. Ed. 683; Waterman v. Canal-Louisiana Bank, 215 U. S. 33, 30 S. Ct. 10, 54 L. Ed. 80; Camp v. Gress, 250 U.S. 308, 39 S. Ct. 478, 63 L. Ed. 997; Commonwealth Trust Co. v. Smith, 266 U. S. 152, 45 S. Ct. 26, 69 L. Ed. 219.' The general statement does little to advance matters, until on‘e knows what is the test by- which-to ascertain when such rights can be protected and ¡when not, and this we uhderstand to be an entirely practical question, dependent in each ease upon the facts. • The decisions are numerous and complicated in the facts; from them it is impossible to extract any generál rule.' Rescission -of a •contract,- or declaration of - its invalidity, as to some of the parties, but hot as to''others, is not generally permitted. Shields v. Barrow, supra; Board of Trustees of Oberlin College v. Blair (C. C.) 70 F. 414; Vincent Oil Co. v. Gulf Refining Co., 195 F. 434 (C. C. A. 5). Williams v. Crabb,. 117, 193, 59 L. R. A. 425 (C. C. A. 7),.seems hardly consistent with these. In partition suits it is plain that , all parties must be present. Barney v. Baltimore, 6 Wall. 280, 18 L. Ed. 825. So, too, when transfers of possession, or injunctions', are at stake. South Penn Oil Company v. Miller, 175 F. 729 (C. C. A. 4). Possibly Associated Oil Co. v. Miller, 269 F. 16 (C. C. A. 5), might have gone the other way, since the rights of the absent parties would not seem to have" }, { "docid": "7864256", "title": "", "text": "L. HAND, Circuit Judge (after stating the facts as above). The bill is so much made up of charges of evidenc“e and rhetorical nar rative that it is nearly impossible tó ascertain from it the “ultimate facts.” • The pleader has wholly disregarded equity rule 25, and ■proceeded as if he were, drafting an ancient bill in equity. However, with this we have nothing to do at present; the only question is whether the Mexican corporation and the plaintiff’s attorneys were indispensable parties to the suit. The defendant’s argument is that no decree can be entered which will not so involve their interests as to prevent justice being done. Section 50 of the Judicial Code (Comp. St. § 1033) and rule 39 of the Equity Rules, so far as here relevant, are identical in substance; they give discretion to the court to proceed without parties ordinarily necessary under equity practice, but prescribe that the decree must be without prejudice to those who are absent. In many decisions it has been laid down that the test is one of substance; that is, whether the plaintiff can obtain relief which will later leave open to', the absent parties the effective assertion of’ their rights; Shields v. Barrow; 17 How. 129, 15 L. Ed. 158; Mallow v. Hinde, 12 Wheat. 193, 6 L. Ed. 599; Payne v. Hook, 7 Wall. 425, 19 L. Ed; 260;. Gregory v. Stetson, 133 U. S. 579, 10 S. Ct. 422, 33 L. Ed. 792; California v. So. Pac. Co., 157 U. S. 229,15 S. Ct. 591; 39 L. Ed. 683; Waterman v. Canal-Louisiana Bank, 215 U. S. 33, 30 S. Ct. 10, 54 L. Ed. 80; Camp v. Gress, 250 U.S. 308, 39 S. Ct. 478, 63 L. Ed. 997; Commonwealth Trust Co. v. Smith, 266 U. S. 152, 45 S. Ct. 26, 69 L. Ed. 219.' The general statement does little to advance matters, until on‘e knows what is the test by- which-to ascertain when such rights can be protected and ¡when not, and this we uhderstand to be an entirely practical question, dependent in each" }, { "docid": "9673397", "title": "", "text": "affects all interests inherent in the corpus of the estate. The interests of the life tenant and the remaindermen in respect to the corpus of the trust estate arc so united and bound together that they seem clearly inseverable, and an adjudication of questions affecting the right of the trustee to be absolved from responsibility for the restoration of the corpus of the estate would necessarily have a direct effect on the interests of both, and can only be had in a proceeding to which both the life tenant and the remaindermen or such of the contingent remaindermen as are in being, are parties. Shields v. Barrow, 17 How. 130, 15 L.Ed. 158; Gregory v. Stetson, 133 U.S. 579, 10 S.Ct. 422, 33 L.Ed. 792; Commonwealth Trust Co. v. Smith, 266 U.S. 152, 45 S.Ct. 26, 69 L.Ed. 219; Franz v. Buder, 8 Cir., 11 F.2d 854. In the case of Balter v. Ickes, 67 App.D.C. 112, 89 F.2d 856, 858, 859, it is said: “It is the general rule in equity that, in order that a final and complete decree may be made, all persons ‘are .to be made parties who are legally or beneficially interested in the subject matter and result of the suit.’ Caldwell v. Taggart, 4 Pet. 190, 202, 7 L.Ed. 828; Gregory v. Stetson 133 U.S. 579, 586, 10 S.Ct. 422, 33 L.Ed. 792. * * “All whose interests will be affected by the decree, that is, all persons materially interested either legally or beneficially in the subject matter of the suit, must be made parties. Ribon v. Chicago Railroad Company, 16 Wall. 446, 450, 21 L.Ed. 367; Commonwealth Trust Co. v. Smith, 266 U. S. 152, 158, 45 S.Ct. 26, 69 L.Ed. 219.” In the case of State of Washington v. United States, 9 Cir., 87 F.2d 421. 430, it is said: “It is true that the decree does not adjudicate the reversionary interest, but it does have an effect thereon because in such reversionary interest there is a right to receive, at some future time, the right of possession. This right of possession" }, { "docid": "9330598", "title": "", "text": "aside any acquisition thereof. Gregory v. Stetson, 133 U. S. supra, at page 585, 10 Slip. Ct. 422, 33 L. Ed. 792; New Orleans Water Works v. New Orleans, 164 U. S. supra, at page 479, 17 Sup. Ct. 161, 41 L. Ed. 518; Lengel v. Smelting Co. (C. C.) 110 Fed. 19, 22. The New York Central Company was not, however, an indispensable party to so much of the petition as sought to enjoin the Rake Shore Company itself from entering into the proposed consolidation; which was alleged to be illegal under various provisions of law, entirely independent of the ownership and voting of the controlling stock held by the New York Central Company. In a suit by a stockholder to' enjoin a corporation in which he holds stock from entering into an illegal merger with another corporation, such other corporation need not be made a party; its interest being entirely remote. Blatchford v. Ross, 54 Barb. (N. Y.) 42, 47. When the original petition was filed the consolidation agreement had not been made effective by vote of the stockholders of the Rake Shore Company, as required by section 9028 of. the General Code of Ohio. Therefore the New York Central Company had acquired no vested contract right in the proposed consolidation; and its mere expectancy that the Rake Shore Company would enter into such agreement was a wholly prospective interest, of a remote and non-justiciable character, which did not entitle it to be heard, in the capacity of a contracting party, in litigation seeking to enjoin the Rake Shore Company from entering on its own account, into such consolidation, or render it an indispensable party thereto. Nor was it indispensable to such litigation in its capacity as a stockholder in the Rake Shore Company; that company itself under the well settled'general rule, representing its individual ■ stockholders in the defense of suits involving its corporate rights and functions. Taylor v. Southern Pacific Co. (C. C.) 122 Fed. supra, at page 153. And see Blatchford v. Ross, 54 Barb. (N. Y.) supra, at page 48. So too the New" }, { "docid": "8155241", "title": "", "text": "to stand,1 will be, spread upon the records of the titles to these lands. It cannot fail injuriously to affect — nay, practically to destroy — the value of the claims and rights of these holders of certificates, because it bears on its face no adequate notice that they are not bound by it. “The established practice of courts of equity to dismiss the plaintiff’s bill,” says the Supreme Court, in Minnesota v. Northern Securities Co., 184 U. S. 199, 235, 22 Sup. Ct. 308, 322 (46 L. Ed. 499), “if it appears that to grant the relief prayed for would injuriously affect persons materially interested in the subject-matter who are not made parties to the suit, is founded upon clear reasons, and may be enforced by the court sua sponte, though not raised by the pleadings or suggested by the counsel. Shields v. Barrow, 17 How. 130 [15 L. Ed. 158]; Hipp v. Babin, 19 How. 271, 278 [15 L. Ed. 633] ; Parker v. Winnipiseogee Lake Cotton & Woolen Co., 2 Black, 545 [17 L. Ed. 333].” To the same effect is the opinion of this court in Hawes v. First Nat. Bank, 229 Fed. 51, 57, 59, 143 C. C. A. 645, 651, 653. It is a familiar and just rule that no court may directly adjudicate a person’s claim of right, unless he is actually or constructively before it. It is an established rule of practice in the conduct of suits in equity in the federal courts that every indispensable party must be brought into the court or the suit must be dismissed. And an indispensable party is one who has such an interest in the subject-matter of the controversy that a final decree cannot be made without affecting his interests, or leaving the controversy in such a situation that its final determination may- be inconsistent with equity and good conscience. Seminole County -and each of the other holders of certificates of sale or of liens which they claim upon any of the lands described in the complaint which the plaintiff seeks to affect by this" }, { "docid": "8404257", "title": "", "text": "enjoin the oil company from paying’,- and only authorize its receiver to collect, the one-half of the rents and profits realized from said land, and relegate to another jurisdiction, for additional litigation, the claimants of the other half, who are also essentially interested in the disposition of this case? Instead of preventing, will it compel a multiplicity of suits? We need not answer these questions in detail, as it will suffice to say that they show the necessity for the presence in this court of the representatives of the Gain estate, and demonstrate that without them there can he no just and final adjudication of this controversy, thereby indicating that they are indispensable parties. The rule as to who shall be made parties to a suit in equity, as stated in Story, Eq. Pl. 72, is quoted approvingly by the supreme court of the United Slates in Gregory v. Stetson, 133 U. S. 579, 586, 10 Sup. Ct. 122, and is as follows: “It is a general rule In equity (subject to certain exceptions, which will hereafter be noticed) that all persons materially interested, either legally or beneficially, in flic subject-matter of a suit, are to bo made parlies to it, either as plaintiffs or as defendants, hpwover numerous I hey may be, so that there may be a complete decree, which shall bind them all. By this means the court is enabled to make a complete decree between the parties, to prevent further litigation by taking away the necessity of a multiplicity of suits, and to make it perfectly certain that no injustice is clone, either to the parties before it, or to others who are interested in the subject-matter, by a decree which might otherwise be grounded upon a partial view only of the real merits. When all (lie parties are before the court, the whole case may be seen; but it may not, where all the conflicting interests are not brought out upon the pleading by the original parties thereto.” See, also, 1 Daniell, Ch. Prac. 246 et seq. The bill charges not only that fraud was" }, { "docid": "9330594", "title": "", "text": "to it; that the court may be enabled to make a complete decree, prevent future litigation, and make it certain that no injustice is done, either to the parties before it or to others interested in the subject matter, by a decree granted upon a partial view of the real merits. Gregory v. Stetson, 133 U. S. 579, 586, 10 Sup. Ct. 422, 33 L. Ed. 792; Minnesota v. Northern Securities Co., 184 U. S. 199, 235, 22 Sup. Ct. 308, 46 L. Ed. 499; Story’s Eq. Plead. § 72. No court can adjudicate directly upon the rights of a person who is not actually or constructively before it. Mallow v. Hinde, 12 Wheat. 193, 198, 6 L. Ed. 599; Shields v. Barrow, 17 How. 129, 140, 15 L. Ed. 158; Gregory v. Stetson, 133 U. S. supra, at page 586, 10 Sup. Ct. 422, 33 L. Ed. 792; Taylor v. Southern Pacific Co. (C. C.) 122 Fed. 147, 152 (Lurton, Circuit Judge). Nor can it make a decree between the parties before it which necessarily affects the rights of an absent person; who is, in such case, an indispensable party. Shields v. Barrow, 17 How. supra, at page 141, 15 L. Ed. 158; Barney v. Baltimore City, 6 Wall. 280, 284, 18 L. Ed. 825; Gregory v. Stetson, 133 U. S. supra, at page 587, 10 Sup. Ct. 422, 33 L. Ed. 792; New Orleans Water Works v. New Orleans, 164 U. S. 471, 489, 17 Sup. Ct. 161, 41 L. Ed. 518; Waterman v. Bank Co., 216 U. S. 33, 48, 30 Sup. Ct. 10, 54 L. Ed. 80. And it is hence the established practice of courts of equity to dismiss a bill, even sua xponte, if it appears that to grant the relief prayed would injuriously affect persons materially interested in the subject matter who are not parties to the suit. Minnesota v. Northern Securities Co., 184 U. S. supra, at page 235, 22 Sup. Ct. 308, 46 L. Ed. 499. A bill is not, however, to be dismissed in its entirety because of the absence" }, { "docid": "17931230", "title": "", "text": "operate to pass to and vest in the receiver the title to all such property. It was further adjudged that the Third National Bank of St. Louis, on or before May 29, 1915, deliver to said Cunningham all money, stocks, bonds, promissory notes, mortgages, leases, contracts, deeds, documents, records, correspondence, papers, now in its possession, or which might come into its possession or under its control, belonging to or appertaining to said Franklin trust estate. It was further -adjudged that said Third National Bank be perpetually enjoined and restrained from acting upon any orders or directions of the committee created by the trust agreement. It was further adjudged that the money, checks, or other property lodged with any of the defendants by William McGinley in contemplation of the purchase of said Franklin lands, located in Pemiscot county, Mo., were no part of the said Franklin trust estate, and defendants were at liberty to dispose of the same as they might be advised. It was also adjudged that the intervening petition of William McGinley be dismissed. In the consideration of this case we are met at the threshold with the question of jurisdiction. It is urged by counsel for appellants that John E. Franklin and William McGinley were both indispensable parties, without whom the court below was without jurisdiction to render the judgment which it entered. On account of this contention it has been necessary to state the prayer of the bill and the relief granted. The classes of parties to a bill in equity have often been stated by the Supreme Court and by this court. Minnesota v. Northern Securities Co., 184 U. S. 236, 22 Sup. Ct. 308, 46 L. Ed. 499; Shields v. Barrow, 17 How. 130, 15 L. Ed. 158; California v. Southern Pacific Co., 157 U. S. 257, 15 Sup. Ct. 591, 39 L. Ed. 683; Gregory v. Stetson, 133 U. S. 579, 10 Sup. Ct. 422, 33 L. Ed. 792; Smith v. Lyon, 133 U. S. 315, 10 Sup. Ct. 303, 33 L. Ed. 635; Byers v. McAuley, 149 U. S. 618, 13 Sup. Ct." }, { "docid": "22070322", "title": "", "text": "v. Baltimore, supra; State of California v. Southern Pacific Co., supra; Minnesota v. Northern Securities Co., supra; Waterman v. Canal-Louisiana Bank & T. Co., 215 U.S. 33, 48, 30 S.Ct. 10, 54 L.Ed. 80; Bogart v. Southern Pac. Co., 228 U. S. 137, 33 S.Ct. 497,57 L.Ed. 76& 3 Cyc.Fed.Proc. § 715, p. 240, and n. 17 on that page. See, also, Chicago, M., St. P. & P. R. Co. v. Adams County (C.C.A.9) 72 F. (2d) S16. 7 Hughes, Federal Practice, § 4292, p. 120; 28 U.S.C.A., Equity Rules, following section 723, pp. 125, 129, 132, notes 262, 265, 272. Cameron v. M’Roberts, 16 U.S. (3 Wheat.) 591, 593,.4 L.Ed. 467; Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 167, 6 L.Ed. 289; Mallow v. Hinde, 25 U.S. (12 Wheat.) 193, 198, 6 L.Ed. 599; Story v. Livingston, 38 U.S. (13 Pet.) 359, 375, 10 L.Ed. 200; Hagan v. Walker, 55 U.S. (14 How.) 29, 36, 14 L.Ed. 312; Shields v. Barrow, supra, 17 How. 130, 140, 15 L.Ed. 158; Barney v. Baltimore, supra, 6 Wall. 280, 284, 18 L.Ed. 825; Horn v. Lockhart, 84 U.S. (17 Wall.) 570, 579, 21 L.Ed. 657; Gregory v. Stetson, 133 U.S. 579, 586, 10 S.Ct. 422, 33 L.Ed. 792; California v. Southern Pac. Co., supra, 157 U.S. 229, 249, 15 S.Ct. 591, 39 L.Ed. 683; Waterman v. Canal-Louisiana Bank & Trust Co., supra, 215 U.S. 33, 49, 30 S.Ct. 10, 54 L.Ed. 80; Niles-Bement-Pond Co. v. Iron Moulders’ Union, 254 U.S. 77, 80, 41 S.Ct. 39, 40, 65 L.Ed. 145; Commonwealth Trust Co. v. Smith, 266 U.S. 152, 159, 45 S.Ct. 26, 28, 69 L.Ed. 219. See, also, 3 Cyc.Fed.Proc. 241, § 715; 4 Hughes Fed.Prac. 120, § 2333; 7 Id. 124, § 4296. See, also, Fourth Nat. Bank v. New Orleans & R. Co., 78 U.S. (11 Wall.) 624, 631, 20 L.Ed. 82. Hagan v. Walker, supra, 14 How. 29, 36, 14 L.Ed. 312; Coiron v. Millaudon, 60 U.S. (19 How.) 113, 15 L.Ed. 575; Fourth Nat. Bank v. New Orleans & C. R. Co., 78 U.S. (11 Wall.) 624, 631," }, { "docid": "17883788", "title": "", "text": "defendant to prevent it from commencing or continuing the doing of those things which are beyond its corporate powers, are in violation of law, and which may lead to a forfeiture of its corporate franchises; that, in respect of the charges made in his intervening petition and the relief sought thereby, the defendant company may stand as the sole representative in the suit of all of the stockholders, including the securities company, and that, therefore, the presence of the latter may be dispensed with. But appellant ignores the force of the pressing and insistent fact that the very thing of which he complains is primarily the ownership by the securities company of a majority of the stock of the defendant, and the end which he is seeking is the destruction of its title and its status as a stockholder. It is of the foundation of our jurisprudence that the rights of a person shall not be directly affected by a judicial proceeding to which he is not a party, and in which he cannot be heard for their defense and protection. Out of this principle has grown the rule, always recognized and enforced, that a suit will not be entertained in the absence of a person who has an interest in the controversy of such a nature that a final decree cannot be rendered without either affecting that interest or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience. Minnesota v. Northern Securities Company, 184 U. S. 199, 235, 22 Sup. Ct. 308, 46 L. Ed. 499; New Orleans Waterworks v. New Orleans, 164 U. S. 471, 17 Sup. Ct. 161, 41 L. Ed. 518; California v. Southern Pacific Company, 157 U. S. 229, 15 Sup. Ct. 591, 39 L. Ed. 683; Christian v. Railroad, 133 U. S. 233, 10 Sup. Ct. 260, 33 L. Ed. 589; Ribon v. Railroad Companies, 16 Wall. 446, 21 L. Ed. 367; Shields v. Barrow, 17 How. 130, 15 L. Ed. 158; Taylor v. Southern Pacific Company (C. C.) 122 Fed. 147; Hollifield" }, { "docid": "2007177", "title": "", "text": "VAN DEVANTER, Circuit Judge, after stating the case as 'above, delivered the opinion of the court. The principle that a court cannot directly adjudicate the rights of a person who is not before it is fundamental (Gregory v. Stetson, 133 U. S. 579, 10 Sup. Ct. 422, 33 L. Ed. 792), and is as applicable to courts exercising appellate jurisdiction as to those whose jurisdiction is'original (Terry v. Abraham, 93 U. S. 38, 23 L. Ed. 794; Davis v. Mercantile Co., 152 U. S. 590, 14 Sup. Ct. 693, 38 L. Ed. 563; Dodson v. Fletcher, 24 C. C. A. 69, 78 Fed. 214; American Loan & Trust Co. v. Clark, 27 C. C. A. 522, 83 Fed. 230; Grand Island & W. C. R. Co. v. Sweeney, 43 C. C. A. 255, 103 Fed. 342; Marshall, Field & Co. v. Wolf Bro. Dry Goods Co., 57 C. C. A. 326, 120 Fed. 815). But one may be before a court so as to enable it to adjudicate his rights, and yet not be an actual party to the proceeding; as when he is represented by a receiver or trustee who is an actual party, and whose duty it is to protect his interests. He is then what is termed a quasi party, and is bound by the judgment or decree, unless there be fraud or collusion between his representative and the adverse party. Kerrison, Assignee, v. Stewart, 93 U. S. 155, 23 L. Ed. 843; Atlantic Trust Co. v. Dana, 62 C. C. A. 657, 670, 128 Fed. 209, 222; Chatfield v. O’Dwyer, 42 C. C. A. 30, 101 Fed. 797; In re Utt, 45 C. C. A. 32, 105 Fed. 754; Foreman v. Burleigh, 48 C. C. A. 376, 109 Fed. 313; In re Lewensohn, 57 C. C. A. 600, 121 Fed. 538. By the decree challenged by this appeal it was adjudged that the claims of Murphy, McNamara, Blair, and Lynch represent legitimate expenses and costs of administration; that the claim of Carroll, while not of this character, is yet a lawful one, and entitled to priority;" }, { "docid": "17931231", "title": "", "text": "In the consideration of this case we are met at the threshold with the question of jurisdiction. It is urged by counsel for appellants that John E. Franklin and William McGinley were both indispensable parties, without whom the court below was without jurisdiction to render the judgment which it entered. On account of this contention it has been necessary to state the prayer of the bill and the relief granted. The classes of parties to a bill in equity have often been stated by the Supreme Court and by this court. Minnesota v. Northern Securities Co., 184 U. S. 236, 22 Sup. Ct. 308, 46 L. Ed. 499; Shields v. Barrow, 17 How. 130, 15 L. Ed. 158; California v. Southern Pacific Co., 157 U. S. 257, 15 Sup. Ct. 591, 39 L. Ed. 683; Gregory v. Stetson, 133 U. S. 579, 10 Sup. Ct. 422, 33 L. Ed. 792; Smith v. Lyon, 133 U. S. 315, 10 Sup. Ct. 303, 33 L. Ed. 635; Byers v. McAuley, 149 U. S. 618, 13 Sup. Ct. 906, 37 L. Ed. 867; Barney v. Baltimore City, 77 U. S. (6 Wall.) 280, 18 L. Ed. 825; Sioux City T. R. & R. Co. v. Trust Co. of N. A., 82 Fed. 124, 27 C. C. A. 73 (8th Cir.); Chadbourne v. Coe, 51 Fed. 479, 2 C. C. A. 327 (8th Cir.). In Minnesota v. Northern Securities Co., supra, in speaking of these classes, it was said: “They are: (1) Formal parties. (2) Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed necessary xiarties; but if their interests arc separable from those of the parties before the court, so that the court ?an proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties. (3)" }, { "docid": "8155240", "title": "", "text": "or by other purchasers at the sales, or from the county, or by their successors in interest; but neither the county (Revised Laws Oklahoma, § 1501), nor any of the purchasers at the sales, nor any of the holders' of the certificates of sales, are parties to this suit, and as they have not been made parties, and have not been heard, or had any opportunity to be heard in this suit, nothing that the court below has adjudged and nothing that this court has decided herein is or can be binding upon them, or upon any parties claiming under them, or even upon the court below, or upon this court, when, if ever, the' claims, rights, and interests of these parties who are not present in either of the courts are presented by them for adjudication. But the decree, by its terms, annuls their certificates, destroys the liens they claim, removes all these as clouds upon the titles, without-any notice to or hearing by them, and this decree doubtless has been, or, if permitted to stand,1 will be, spread upon the records of the titles to these lands. It cannot fail injuriously to affect — nay, practically to destroy — the value of the claims and rights of these holders of certificates, because it bears on its face no adequate notice that they are not bound by it. “The established practice of courts of equity to dismiss the plaintiff’s bill,” says the Supreme Court, in Minnesota v. Northern Securities Co., 184 U. S. 199, 235, 22 Sup. Ct. 308, 322 (46 L. Ed. 499), “if it appears that to grant the relief prayed for would injuriously affect persons materially interested in the subject-matter who are not made parties to the suit, is founded upon clear reasons, and may be enforced by the court sua sponte, though not raised by the pleadings or suggested by the counsel. Shields v. Barrow, 17 How. 130 [15 L. Ed. 158]; Hipp v. Babin, 19 How. 271, 278 [15 L. Ed. 633] ; Parker v. Winnipiseogee Lake Cotton & Woolen Co., 2 Black, 545" } ]

[ { "docid": "16686284", "title": "", "text": "creditors could not be created by making a partial assignment of a single claim. More recently, in In re Averil, Inc., 33 B.R. 562 (Bankr.S.D.Fla.1983), an involuntary Chapter 7 petition was filed by a corporation and two individuals, the debtor successfully moved to dismiss the petition on the ground that the two individuals were in fact one creditor. The debtor had purchased all the stock of a predecessor corporation from the two individual shareholders. The court held that the joint holders of this obligation constituted a single creditor for the purpose of 11 U.S.C. § 303(b)(1). In the instant case the Bank of New York had acquired the interests of three separate banking entities against the three debtors in these cases before the involuntary Chapter 7 petitions were filed against the debtors. Hence, the Bank of New York constituted one creditor holding three separate claims against each of the three debtors. The former separate banking entities do not exist and have no separate organizational structures. The three former banks speak with one voice and the consolidated petitioning creditor must be regarded as one creditor for the numerosity requirements of 11 U.S.C. § 303(b)(1). CONCLUSIONS OF LAW 1. This court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157(b)(2)(A). 2. The bank’s motion to vacate the dismissal of the three separate involuntary petitions which it filed against the three debtors in these three cases is denied because the attorney for the bank appropriately received notice by mail of the hearing scheduled for January 17, 1990 with respect to the debtors’ Answers to the involuntary Chapter 7 petitions and failed to establish a justifiable reason for his default in appearing at the hearing. 3. Even if this court were to vacate the dismissal of the involuntary petitions, it is now too late to seek the additional eligible creditors required to join in the petitions in light of the fact that the debtors each have more than twelve creditors. 4. The petitioning creditor, as the holder of the claims of three predecessor" } ]

[ { "docid": "7513908", "title": "", "text": "11 of this title— (1) by three or more entities, each of which is either a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute as to liability or amount, ... (h) ... after trial, the court shall order relief against the debtor in an involuntary case under the chapter under which the petition was filed, only if— (1) the debtor is generally not paying such debtor’s debts as such debts become due unless such debts are the subject of a bona fide dispute as to liability or amount; ... 11 U.S.C. § 303(a), (h). The petitioning creditors bear the burden of proving that the debtor is generally not paying debts as they become due and that their claims are not subject to a bona fide dispute. See Rimell v. Mark Twain Bank (In re Rimell), 946 F.2d 1363, 1365 (8th Cir.1991); In re Saunders, 379 B.R. 847, 854 (Bankr. D.Minn.2007). Murrin argues that the petitioning creditors cannot satisfy several of the necessary requirements for involuntary bankruptcy. 1. Three or more creditors requirement Section 303(b)(1) of the Bankruptcy Code allows for the filing of an involuntary bankruptcy petition against a debtor if commenced “by three or more entities, each of which is ... a holder of a claim against such [debtor].” 11 U.S.C. § 303(b)(1). A “claim” is defined as a “right to payment, whether or not such a right is reduced to a judgment.” 11 U.S.C. § 101(5)(A). Where creditors are owed separate and distinct payments, and the creditors merely enforce their rights to payment with a joint judgment, courts have found the creditors to be holders of distinct claims. See, e.g., Tichy Elec., 332 B.R. at 372, 373, 375; In re Midi-America Indus., Inc., 236 B.R. 640, 645 (Bankr. N.D.Ill.1999); In re Richard A. Turner Co., 209 B.R. 177, 179 (Bankr.D.Mass. 1997). But where there are joint holders of an obligation or where the separate obligations due to multiple payees are articulated only as one lump sum, courts have consistently held that the individuals hold" }, { "docid": "4087417", "title": "", "text": "routine collection device would quickly paralyze this court. In re Dino’s, Inc., 183 B.R. 779, 783-84 (S.D.Ohio 1995). REQUIREMENT OF THREE PETITIONING CREDITORS Section 303(b) provides that an involuntary case is commenced by filing a petition: (1) by three or more entities, each of which is either a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute, or an indenture trustee representing such a holder, if such claims aggregate at least $12,300 more than the value of any lien on property of the debtor securing such claims held by the holders of such claims; (2) if there are fewer than 12 such holders, excluding any employee or insider of such person and any transferee that is voidable ..., by one or more of such holders that hold in the aggregate at least $12,300 of such claims.... 11 U.S.C. § 303(b). “The purpose of requiring at least three creditors to launch an involuntary case (where the debtor has 12 or more creditors) is to necessitate some joint effort between creditors.” In re Iowa Coal Mining Co., 242 B.R. 661, 670 (Bankr.S.D.Iowa 1999). In Iowa Coal, the court concluded that the relationships of the petitioning creditors were so intertwined that it would be unfair to attempt to disentangle them to meet § 303(b) requirements. Id. Generally, joint holders of an obligation are counted as one creditor. In re Moss, 249 B.R. 411, 421 n. 7 (Bankr.N.D.Tex.2000). Although not cited by the Funds, the Court is aware of two cases considering the separate creditor requirement as it relates to three union funds filing an involuntary case against a contractor. In re Mid-America Indus., Inc., 236 B.R. 640 (Bankr.N.D.Ill.1999); In re Richard A. Turner Co., 209 B.R. 177 (Bankr.D.Mass. 1997). Both courts noted that § 303(b)(1) requires that when a debtor has twelve or more creditors, an involuntary case may be commenced only by three or more entities and each entity must be the holder of a claim against the debtor. Mid-America Indus., 236 B.R. at 644; Turner Co., 209 B.R." }, { "docid": "1338066", "title": "", "text": "one entity.” After a pre-trial hearing, the Court scheduled the matter for an evidentiary hearing. At the evidentiary hearing, the parties presented to the Court a set of stipulated facts and memoranda of law where upon the Court took the matter under advisement. II. Positions of the Parties The Debtor moves to dismiss the involuntary petition on the grounds that the petition was not brought by three creditors each of which is a holder of a claim. Specifically, the Debtor contends that even though there are three funds, there is essentially only one claim because the obligation to the Funds arises from a single collective bargaining agreement. Additionally, the Debtor argues that since the district court awarded the Petitioning Creditors a single judgment in one sum for the three Funds, there is just one claim. The Petitioning Creditors argue that since the collective bargaining agreement provides for three separate and distinct payments to three separate and distinct funds, the Petitioning Creditors are three creditors with three different claims. III. Discussion Section 303(b) specifies who may file an involuntary petition. When a debtor has twelve or more creditors, an involuntary case may be commenced only by three or more entities. 11 U.S.C. § 303(b)(1). In addition, each entity must be the holder of a claim against the debtor that is not contingent as to liability or the subject of a bona fide dispute. Id. It is undisputed that the Petitioning Creditors are three separate entities. Pursuant to 11 U.S.C. § 101(15), the definition of an entity includes a trust. Each of the Petitioning Creditors is a trust created by a separate trust agreement and declaration of trust. Thus, the only issue to be determined is whether each of the Petitioning Creditors is a “holder of a claim” as required by § 303(b)(1). A claim is defined under 11 U.S.C. § 101(5) as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” Nevertheless, for purposes of § 303(b)(1), courts have held that a joint right" }, { "docid": "1338067", "title": "", "text": "file an involuntary petition. When a debtor has twelve or more creditors, an involuntary case may be commenced only by three or more entities. 11 U.S.C. § 303(b)(1). In addition, each entity must be the holder of a claim against the debtor that is not contingent as to liability or the subject of a bona fide dispute. Id. It is undisputed that the Petitioning Creditors are three separate entities. Pursuant to 11 U.S.C. § 101(15), the definition of an entity includes a trust. Each of the Petitioning Creditors is a trust created by a separate trust agreement and declaration of trust. Thus, the only issue to be determined is whether each of the Petitioning Creditors is a “holder of a claim” as required by § 303(b)(1). A claim is defined under 11 U.S.C. § 101(5) as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” Nevertheless, for purposes of § 303(b)(1), courts have held that a joint right to payment constitutes a single claim. E.g., In re T.P. Herndon & Co., 87 B.R. 204, 205 (Bankr.M.D.Fla.1988) (note payable to single entity in which various parties held an interest constituted one claim); In re Averil, Inc., 33 B.R. 562, 563 (Bankr.S.D.Fla. 1983) (joint payees on a note held one claim); In re McMeekin, 16 B.R. 805, 809 (Bankr.D.Mass.), reh’g denied, 18 B.R. 177 (Bankr.D.Mass.1982); see 2 Collier on Bankruptcy § 303.04[7] (15th ed. rev.1996) (joint holders of an obligation should be scrutinized carefully for counting purposes). But see In re Hopkins, 177 B.R. 1 (Bankr. D.Me.1995) (requirements of § 303(b)(1) satisfied where wife and three children had a right to payment for child support). For example, in McMeekin, the obligation at issue arose from a note in which the payees were listed in the conjunctive. The court concluded that because there was but one right to payment there could only be one claim. The court explained: A note which purports to be a promise to repay a fixed sum to two named payees, and" }, { "docid": "1338073", "title": "", "text": "considering circumstances surrounding loan to determine whether debtor had made materially false statements respecting financial condition). Similarly, the court may examine an underlying claim to determine the amount of the judgment which is allowable under the Code. Lindsey, 199 B.R. at 583-84 (court may look behind judgment to determine allowable amount of lessor’s claim for damages under § 502(b)(6)); Kohn v. Leavitt-Bemer Tanning Corp., 157 B.R. 523, 526 (N.D.N.Y. 1993) (same); In re Bus Stop, Inc., 3 B.R. 26 (Bankr.S.D.Fla.1980) (same). Finally, the Code broadly defines the term “claim.” , See S.Rep. No. 95-989, at 21 (1978) (describing definition of claim as permitting “the broadest possible relief in the bankruptcy court” and noting that the Code “contemplates that all legal obligations of the debtor ... will be able to be dealt with in the bankruptcy case.”); accord H.R.Rep. No. 95-595, at 309 (1977). Moreover, a claim exists “whether or not it is reduced to judgment.” § 101(5); see Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552, 558, 110 S.Ct. 2126, 2130-31, 109 L.Ed.2d 588 (1990) (the modifying language “whether or not such right is ... ’’reflects Congress’ broad rather than restrictive view of the class of obligations that qualify as a “claim”). Since § 303(b)(1) requires only that each of the petitioning creditors be a holder of a claim, and since nothing prevents the Court from looking behind the judgment to determine whether creditors in fact hold three separate claims, the fact thát unrelated debts have been reduced to a single judgment should not preclude each of the creditors from qualifying as a holder of a claim for the amount each is owed. The Court holds that a single judgment encompassing individual claims does not merge those claims for purposes of § 303(b)(1). IV. Conclusion Each of the Petitioning Creditors is a holder of a claim. There being no other contested issues, the order for relief under Chapter 7 of the Bankruptcy Code should enter. . Section 6.02 of the collective bargaining agreement provides in relevant part: It is mutually agreed between the parties here that the Employer" }, { "docid": "8903832", "title": "", "text": "not stated what effect this settlement has on Merchants’ claim against the coal companies. Standing alone, each of these factors might not persuade the court. Taken together, the court concludes that the petitioners have presented themselves as one creditor with one claim. The relationships of the bonding companies and the coal companies are so intertwined that it would be unfair for the court to attempt to disentangle them to meet § 303(b) requirements. The purpose of requiring at least three creditors to launch an involuntary case (where the debtor has 12 or more creditors) is to necessitate some joint effort between creditors. Where the petitioning creditors have been dealing with the debtors as one entity for an extended period of time, have subsumed the claimed obligations into a single agreement, and have presented themselves jointly to the court as one creditor, the legislative purpose of § 303 will be frustrated if additional creditors do not join in the petition. Averil, 33 B.R. at 563. Consequently, the involuntary petitions against each of the coal companies must be dismissed. Even if the court found that the bonding companies had satisfied the requisites of § 303, it would still be compelled to dismiss this case pursuant to § 305. Section 305 provides the bankruptcy court with the power to dismiss a bankruptcy proceeding when it is in the best interest of the debtor and the creditors. Section 305 provides: (a) The court, after notice and a hearing, may dismiss a case under this title, or may suspend all proceedings in a case under this title, at any time if— (1) the interests of creditors and the debtor would be better served by such dismissal or suspension; 11 U.S.C. § 305 (1997). The exercise of this power is not reviewable by the courts of appeal or the Supreme Court of the United States. 11 U.S.C. § 305(c). Therefore, the power to dismiss or abstain is an extraordinary power, which should only be exercised in extraordinary circumstances. In re Manchester Heights Associates, 140 B.R. 521, 522 (Bankr.W.D.Mo.1992). “Nonetheless ... this court will not hesitate to" }, { "docid": "8903823", "title": "", "text": "41. The order confirming Huyser’s Chapter 11 Plan was entered on October 16,1997. 42. The petitioning creditors do not wish to have the coal companies liquidated. Rather they wish to have a trustee appointed with authorization to operate these companies pursuant to 11 U.S.C. § 721. DISCUSSION On March 10, 1997, the bonding companies filed petitions seeking Chapter 7 relief for Iowa Coal Mining Company, Inc., Star Coal Mining Company, Inc., and Superior Coal Company pursuant to 11 U.S.C. § 303.' Section 303 provides in pertinent part: (b) An involuntary case against a person is commenced by the filing with the bankruptcy court of a petition under chapter 7 or 11 of this title— (1) by three or more entities, each of which is either a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute ... if such claims aggregate at least $10,000 more than the value of any lien on property of the debtor securing such claims held by the holders of such claims; (2)if there are fewer than 12 such holders, excluding any employee or insider of such person and any transferee of a transfer that is voidable under section 544, 545, 547, 548, 549, or 724(a) of this title, by one or more of such holders that hold in the aggregate at least $10,000 of such claims. 11 U.S.C. § 303 (1997). Section 101(41) defines “person” to include individuals, partnerships, and corporations. 11 U.S.C. § 101(41) (1997). In their brief of Resistance to the Petitions for Involuntary Bankruptcy, the coal companies challenge the numeric sufficiency in the bonding companies’ petitions. In particular, the coal companies claim that the bonding companies should be counted as one creditor with one claim for § 303 purposes. The essence of the argument is that the reclamation agreement, as modified, is the basis of a single debt that the coal companies owe to the bonding companies. This debt is secured by a single mortgage and security interest issued jointly to bonding companies. (Éxh. F). This “joint obligation” constitutes a" }, { "docid": "2986916", "title": "", "text": "an inappropriate extension of Denham. This Court will apply Denham narrowly and exclude four creditors: (1) the City of San Juan Capistrano — $20.99; (2). San Diego Gas and Electricity — $58.00; (3) the Gas Company of Monterey Park. California— $10.62; and (4) Wells Fargo Bank — $25.04. Even with these claims excluded from the § 303(b) creditor count, this Court finds that Moss had twelve or more qualifying creditors in existence on the Petition Date. C. Whether Small and Braithwaite Hold One or Two Claims Moss next contends that Small and Braithwaite hold a single claim against her, thereby causing the Involuntary Petition to be improperly filed. If an alleged debtor has twelve or more qualifying creditors, an involuntary petition may be commenced “... by three or more entities, each of which is ... a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute, ...” 11 U.S.C. § 303(b)(1). As relevant here, the Bankruptcy Code requires that the Involuntary Petition be filed by “three entities” and that each of those entities hold a separate claim against Moss. A claim is defined as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.... ” 11 U.S.C. § 101(5)(A). Thus, while Small and Braithwaite are separate “entities” as defined by the Bankruptcy Code, the issue is whether Small and Braithwaite each have a right to payment from Moss separate from the other under applicable non-bankruptcy law. The claim of Small and Braithwaite arises pursuant to a written agreement. That agreement defines Small and Braith-waite jointly as “INVESTORS” and Moss promises the same performance to them jointly as Investors. See Exhibit 21. Moreover, Moss testified that she considered her obligation to them to be a joint obligation and that all payments made by her to them pursuant to the agreement were made to them jointly. Cancelled checks corroborate Moss’s testimony. See Exhibit J. Nothing in the agreement discloses a contrary intention. Small and" }, { "docid": "10914837", "title": "", "text": "dicial proceeding by the indenture trustee. See In re Sponsor Realty Corp., 48 F.Supp. 735, 738 (S.D.N.Y.1943) (holding that absent express language showing that the bondholders intended to waive their rights to petition under the existing reorganization statute, the bondholders qualified as petitioning creditors regardless of the trustee). Thus, according to the terms of the indenture instrument, these claims survived the joinder of the indenture trustee. In addition to the appellants, Bank of America represents an unknown number of debenture holders under the terms of the indenture instrument. The plain language of section 303(b)' gives Bank of America the right to file or join an involuntary bankruptcy petition on behalf of those debenture holders. Thus, we conclude that the terms of the indenture instrument and the plain language of the statute allow Bank of America as well as Grey and Heerey to file an involuntary petition. Federated cites various cases to support its argument that the joinder of the indenture trustee reduces the number of petitioning creditors to one. We conclude these authorities are distinguishable. In In re McMeekin, 18 B.R. 177, 177-78 (Bankr. D.Mass.1982) and In re McMeekin, 16 B.R. 805, 809 (Bankr.D.Mass.1982), the court held that joint payees on a promissory note do not hold separate claims under section 303(b) because they together have one right of payment which is jointly enforceable. In In re Gilbert, 115 B.R. 458, 461 (Bankr.S.D.N.Y. 1990), the court held that a creditor holding three separate claims against a debtor counts as one petitioning creditor, even though the creditor acquired the claims from three separate entities. Grey, Heerey, and the indenture trustee, however, are not joint payees, nor are they one entity holding separate claims. Thus, these cases do not lead to the conclusion that the joinder of the Bank of America extinguishes the claims of Grey and Heerey. Therefore, we conclude that the bankruptcy court erred as a matter of law when it dismissed the appellants’ involuntary petition after Bank of America’s joinder. Under the terms of the Federated indenture and the plain language of the statute, the joinder of the indenture" }, { "docid": "3825395", "title": "", "text": "satisfy the provisions of Section 303(b) of the Bankruptcy Code. Consequently, Lyon, through the artifice of utilizing the Original Petitioning Creditors in filing this involuntary case, is judicially estopped from taking a position in this Court that is inconsistent with and different from the earlier position it took in the Second Bucks County Action. Therefore, Lyon, and the Original Petitioning Creditors on whose behalf the Lyon representative signed the petition, is judicially estopped from adopting a different position in this case. D. At Most, One Creditor Exists Section 303(b) of the Bankruptcy Code sets forth both quantitative and qualitative requirements for filing an involuntary petition, namely: (1) the petition must be brought by not less than three eligible creditors, unless there are not more than eleven eligible creditors (after reduction for the specified excluded creditors), and (2) the claims of the petitioning creditors must not be subject to “bona fide dispute”. In re Compuhouse Systems, Inc., 168 B.R. 305 (Bankr.W.D.Pa.1994). The Original Petitioning Creditors and Ashland argue that they are each separate legal entities whose corporate formation should not be disregarded. However, the Court cannot ignore the fact that each of them do not hold a separate and distinctive claim against Rosenberg under the Limited Guaranty, which is the only document giving rise to any purported liability Rosenberg may have. Section 303(b)(1) requires not only that there be three creditors, but also that each of such creditors hold a separate claim against the alleged debtor; however, the Limited Guaranty herein runs exclusively to Lyon. The Settlement Agreement may be deemed a novation—a mutual agreement between the parties for the discharge of a valid existing obligation by the substitution of a new valid obligation. There are four essential elements necessary to form a substitute contract or novation: (1) the existence of a previously valid contract; (2) the agreement of the parties to cancel and extinguish the first contract; (3) the agreement of the parties that the second contract takes the place of the first; and (4) the validity of the new contract. De Las Cuevas v. National Enterprises Inc., 927 So.2d" }, { "docid": "12414974", "title": "", "text": "in accordance with the terms of certain collective bargaining agreements made between the employers in the men’s and boys’ clothing industry and local chapters of UNITE. Among the employees covered by the Fund and Retail Fund respectively, are Barney’s tailors, office staff and various back-office personnel who are members of Local 25 of UNITE and sales personnel who are members of Local 340 of UNITE. Barney’s is a party to separate collective bargaining agreements with each of them pursuant to which it is obligated to make plan contributions. The Fund concedes that no liquidated pre-petition obligations are owed by the Debtors to it for unpaid prepetition contributions. However, it has filed an unsecured nonpriority proof of claim in the sum of $1,523,489.39, based on Debtors’ contingent “withdrawal” liability pursuant to ERISA, 29 U.S.C. § 1002(5), as amended by the MPPAA. All creditors holding unsecured claims are eligible for committee membership. See 11 U.S.C. § 1102(a)(1). A “creditor” is any “entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor.” 11 U.S.C. § 101(10)(A). A “claim” is a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidat-ed, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured.” 11 U.S.C. § 101(5)(A). See also In re First RepublicBank Corp., 95 B.R. at 60 (to be eligible for membership on statutory committee, entity must hold unsecured prepetition claim); In re Bennett, 17 B.R. 819, 820 (Bankr.D.N.M.1982) (same). Relying on the unambiguous language of the Bankruptcy Code, courts have permitted creditors holding disputed claims to sit on statutory committees. See In re Laclede Cab Co., 145 B.R. 308, 309 (Bankr.E.D.Mo.1992); In re Richmond Tank Car Co., 93 B.R. 504, 506 (Bankr.S.D.Tex.1988); In re Daig Corp., 17 B.R. 41, 43 (Bankr.D.Minn.1981); In re Grynberg, 10 B.R. 256, 257 (Bankr.D.Colo.1981). See also In re Microboard Processing, Inc., 95 B.R. at 286 (creditors whose claims were being disputed in pending adversary proceeding not disqualified from committee membership on basis of conflict of interest). The rationale of those cases" }, { "docid": "7513909", "title": "", "text": "necessary requirements for involuntary bankruptcy. 1. Three or more creditors requirement Section 303(b)(1) of the Bankruptcy Code allows for the filing of an involuntary bankruptcy petition against a debtor if commenced “by three or more entities, each of which is ... a holder of a claim against such [debtor].” 11 U.S.C. § 303(b)(1). A “claim” is defined as a “right to payment, whether or not such a right is reduced to a judgment.” 11 U.S.C. § 101(5)(A). Where creditors are owed separate and distinct payments, and the creditors merely enforce their rights to payment with a joint judgment, courts have found the creditors to be holders of distinct claims. See, e.g., Tichy Elec., 332 B.R. at 372, 373, 375; In re Midi-America Indus., Inc., 236 B.R. 640, 645 (Bankr. N.D.Ill.1999); In re Richard A. Turner Co., 209 B.R. 177, 179 (Bankr.D.Mass. 1997). But where there are joint holders of an obligation or where the separate obligations due to multiple payees are articulated only as one lump sum, courts have consistently held that the individuals hold only one claim between them. See, e.g., Huszti v. Huszti, 451 B.R. 717, 721 (E.D.Mich.2011); Sipple v. Atwood (In re Atwood), 124 B.R. 402, 409 (S.D.Ga.1991); In re T.P. Herndon and Co., 87 B.R. 204, 205 (Bankr.M.D.Fla.1988). Here, the involuntary bankruptcy petition was commenced by three distinct creditors, (Terri Hanson, Colleen Turgeon, and Glenn Smogoleski). Despite the debt arising from one judgment, the amount owed to each debtor was specified. See Murrin, 2010 WL 1029306, at *2 (“The judgments totaled $431,023.35: $136,767.60 in favor of the Smogoleski respondents; $103,352.50 in favor of the Davisson/De-sender respondents; $37,100 in favor of Hanson; $12,958.75 in favor of Klatt; $65,844.50 in favor of Turgeon; and $75,000 in favor of Edina Realty.”). Because these creditors hold distinct claims, the “three creditor” requirement of 11 U.S.C. § 303(b)(1) is satisfied. 2. Generally not paying debts In a controverted involuntary bankruptcy case, the petitioning creditors must prove that “the debtor is generally not paying such debtor’s debts as such debts become due.” 11 U.S.C. § 303(h)(1). Like the three creditor requirement, the" }, { "docid": "1338075", "title": "", "text": "will contribute the amounts set forth in Section 3.05 of this Agreement for each hour worked and will remit such amount to the Trustees of the Health & Welfare Fund established by the Trust Agreement and Declaration of Trust not later than fifteen (15) calendar days following the end of each calendar month in which the work was performed. Sections 6.03 and 6.04 of the collective bargaining agreement contain identical provisions for the Pension Fund and the Annuity Fund respectively. . II U.S.C. § 303(b) provides in relevant part: An involuntary case against a person is commenced by the filing with the bankruptcy court of a petition under chapter 7 or 11 of this title— (1) by three or more entities, each of which is either a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute, or an indenture trustee representing such a holder, if such claims aggregate at least $10,000 more than the value of any lien on property of the debtor securing such claims held by the holders of such claims; . Although this is an issue of first impression, several cases decided pursuant to 11 U.S.C. § 303(h)(1) offer some support for this Court's position. In Cardon Realty Corp. v. Teamsters Pension Trust Fund (In re Cardon Realty Corp.), 124 B.R. 630, 634 (W.D.N.Y.1991) and In re Garland Coal & Mining Co., 67 B.R. 514, 522 (Bankr.W.D.Ark.1986), the courts held that pensions funds, similar to the Funds in the instant case, constituted separate creditors with separate debts for purposes of determining whether the debtor was not paying its debts as they became due. See also In re Central Hobron Assoc., 41 B.R. 444, 449 n. 4 (D.Haw.1984) (though court held that related entities were one creditor with one debt for purposes of § 303(h)(1), it noted that the entities would not be combined under § 303(b))." }, { "docid": "1338068", "title": "", "text": "to payment constitutes a single claim. E.g., In re T.P. Herndon & Co., 87 B.R. 204, 205 (Bankr.M.D.Fla.1988) (note payable to single entity in which various parties held an interest constituted one claim); In re Averil, Inc., 33 B.R. 562, 563 (Bankr.S.D.Fla. 1983) (joint payees on a note held one claim); In re McMeekin, 16 B.R. 805, 809 (Bankr.D.Mass.), reh’g denied, 18 B.R. 177 (Bankr.D.Mass.1982); see 2 Collier on Bankruptcy § 303.04[7] (15th ed. rev.1996) (joint holders of an obligation should be scrutinized carefully for counting purposes). But see In re Hopkins, 177 B.R. 1 (Bankr. D.Me.1995) (requirements of § 303(b)(1) satisfied where wife and three children had a right to payment for child support). For example, in McMeekin, the obligation at issue arose from a note in which the payees were listed in the conjunctive. The court concluded that because there was but one right to payment there could only be one claim. The court explained: A note which purports to be a promise to repay a fixed sum to two named payees, and which refers to the payees in the conjunctive, is nevertheless a single promise to pay. It creates a single right to payment, which may be shared jointly by the payees, and which may be enforced only by both payees. 16 B.R. at 809. As a result, the court held that, although two of the petitioning creditors constituted separate entities, each was not the holder of a claim. Id.; accord T.P. Herndon, 87 B.R. at 205; Averil, 33 B.R. at 563. The instant case is distinguishable from McMeekin. In McMeekin the debtor had one obligation to pay one sum to two payees. 16 B.R. at 809. In contrast, the collective bargaining agreement at issue here contains three separate provisions creating separate obligations for different sums to each of the Petitioning Creditors. Therefore, although there is only one collective bargaining agreement, the agreement itself creates three distinct and independent obligations. Consequently, each Petitioning Creditor is a holder of a claim for the amount it is owed under the collective bargaining agreement See Subway Equip. Leasing Corp. v." }, { "docid": "8903828", "title": "", "text": "303. Id. Bankruptcy Judge Britton goes on to state: Although the provisions of the statute examined in light of local law suggest the foregoing conclusion, I am more persuaded by the following consideration. If we adopt the conclusion urged by the petitioners, the statutory scheme provided by § SOS would be defeated. The evident purpose in requiring at least three creditors with three claims (unless the debtor has less than a dozen creditors) is to require at least some joint effort to launch an involuntary proceeding. If the co-owners of a single obligation qualify as separate claimants for this purpose, that legislative purpose would be frustrated. Id. at 563. (emphasis added). In this case, the legislative purpose of § 303 would be frustrated by allowing the bonding companies to launch this involuntary proceeding without some joint effort with other creditors. The bonding companies, in initiating and pursuing this proceeding, have presented themselves to the court as one creditor with one claim based on the reclamation agreement. The court finds the following factors persuasive in its determination. First, on March 10, 1997, the bonding companies filed involuntary chapter 7 petitions for each of the coal mining companies. Amended petitions were filed on April 22, 1997. Aside from the alleged debtors’ names, the petitions are virtually identical. Each petition contains the same 11 paragraphs. Paragraph 6 refers to three accompanying exhibits consisting of over 80 pages purporting to evidence the creditors’ claims. Nowhere in the petitions or the exhibits do the bonding companies state an amount of debt owed to each of them by each of the coal companies. Second, in their petitions the bonding companies refer to the reclamation agreement and subsequent modifications to the agreement as a basis for their claim. (Exhs. A-E). The bonding companies have jointly advanced monies to the coal companies for “their mutual benefit” via this agreement. (Exh. A Sec. 4). Under the repayment terms, the coal companies are required to repay any bond losses, costs, attorney’s fees, and unpaid bond premiums. However, the agreement and each modification specify that a lump sum will be paid" }, { "docid": "4087418", "title": "", "text": "to necessitate some joint effort between creditors.” In re Iowa Coal Mining Co., 242 B.R. 661, 670 (Bankr.S.D.Iowa 1999). In Iowa Coal, the court concluded that the relationships of the petitioning creditors were so intertwined that it would be unfair to attempt to disentangle them to meet § 303(b) requirements. Id. Generally, joint holders of an obligation are counted as one creditor. In re Moss, 249 B.R. 411, 421 n. 7 (Bankr.N.D.Tex.2000). Although not cited by the Funds, the Court is aware of two cases considering the separate creditor requirement as it relates to three union funds filing an involuntary case against a contractor. In re Mid-America Indus., Inc., 236 B.R. 640 (Bankr.N.D.Ill.1999); In re Richard A. Turner Co., 209 B.R. 177 (Bankr.D.Mass. 1997). Both courts noted that § 303(b)(1) requires that when a debtor has twelve or more creditors, an involuntary case may be commenced only by three or more entities and each entity must be the holder of a claim against the debtor. Mid-America Indus., 236 B.R. at 644; Turner Co., 209 B.R. at 178. They concluded that the union funds were separate entities holding separate claims even though the claims had been reduced to single judgments. Mid-America Indus., 236 B.R. at 646; Turner Co., 209 B.R. at 180. BAD FAITH Although the Bankruptcy Code does not explicitly require that a bankruptcy petition be filed in good faith, the Eighth Circuit has found that the Code contains an implicit good faith requirement. In re Bock Transp., Inc., 327 B.R. 378, 381 (8th Cir. BAP 2005); In re Cedar Shore Resort, Inc., 235 F.3d 375, 379 (8th Cir.2000). A bad faith filing can be cause for the dismissal of a petition. Basin Elec. Power Coop. v. Midwest Processing Co., 769 F.2d 483, 486 (8th Cir.1985). The filing of an involuntary petition for a non-bankruptcy purpose is evidence of bad faith. Id.; Bock Transp., 327 B.R. at 382. The standard for bad faith is not defined in the bankruptcy code. In re Cannon Express Corp., 280 B.R. 450, 453 (Bankr.W.D.Ark.2002). The determination of whether petitioners acted in bad faith is" }, { "docid": "1338074", "title": "", "text": "588 (1990) (the modifying language “whether or not such right is ... ’’reflects Congress’ broad rather than restrictive view of the class of obligations that qualify as a “claim”). Since § 303(b)(1) requires only that each of the petitioning creditors be a holder of a claim, and since nothing prevents the Court from looking behind the judgment to determine whether creditors in fact hold three separate claims, the fact thát unrelated debts have been reduced to a single judgment should not preclude each of the creditors from qualifying as a holder of a claim for the amount each is owed. The Court holds that a single judgment encompassing individual claims does not merge those claims for purposes of § 303(b)(1). IV. Conclusion Each of the Petitioning Creditors is a holder of a claim. There being no other contested issues, the order for relief under Chapter 7 of the Bankruptcy Code should enter. . Section 6.02 of the collective bargaining agreement provides in relevant part: It is mutually agreed between the parties here that the Employer will contribute the amounts set forth in Section 3.05 of this Agreement for each hour worked and will remit such amount to the Trustees of the Health & Welfare Fund established by the Trust Agreement and Declaration of Trust not later than fifteen (15) calendar days following the end of each calendar month in which the work was performed. Sections 6.03 and 6.04 of the collective bargaining agreement contain identical provisions for the Pension Fund and the Annuity Fund respectively. . II U.S.C. § 303(b) provides in relevant part: An involuntary case against a person is commenced by the filing with the bankruptcy court of a petition under chapter 7 or 11 of this title— (1) by three or more entities, each of which is either a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute, or an indenture trustee representing such a holder, if such claims aggregate at least $10,000 more than the value of any lien on property of the" }, { "docid": "1338069", "title": "", "text": "which refers to the payees in the conjunctive, is nevertheless a single promise to pay. It creates a single right to payment, which may be shared jointly by the payees, and which may be enforced only by both payees. 16 B.R. at 809. As a result, the court held that, although two of the petitioning creditors constituted separate entities, each was not the holder of a claim. Id.; accord T.P. Herndon, 87 B.R. at 205; Averil, 33 B.R. at 563. The instant case is distinguishable from McMeekin. In McMeekin the debtor had one obligation to pay one sum to two payees. 16 B.R. at 809. In contrast, the collective bargaining agreement at issue here contains three separate provisions creating separate obligations for different sums to each of the Petitioning Creditors. Therefore, although there is only one collective bargaining agreement, the agreement itself creates three distinct and independent obligations. Consequently, each Petitioning Creditor is a holder of a claim for the amount it is owed under the collective bargaining agreement See Subway Equip. Leasing Corp. v. Sims (In re Sims), 994 F.2d 210, 219 (5th Cir.1993) (affiliated creditors were qualified to file involuntary petition pursuant to § 303(b)(1) where debtor voluntarily entered into separate contracts with each creditor). The fact that the district court entered a single judgment in favor of the Petitioning Creditors does not change this result. The Debtor argues that because the Petitioning Creditor’s claims were reduced to one judgment, with the full amount in favor of all three Petitioning Creditors, there is only one claim. This theory was adopted by the court in In re Atwood which found that when separate claims held by two creditors were reduced to a joint judgment there was a single claim for purposes of § 303(b)(1). 124 B.R. 402 (S.D.Ga.1991); see In re Ross, 63 B.R. 951, 967 (Bankr.S.D.N.Y.1986) (where creditors held separate, non-overlapping judgments in addition to joint judgment they count as two petitioners). The Atwood decision relied on McMeekin and its progeny. Id. at 409. However, those joint payee cases are not dispositive with respect to a joint judgment." }, { "docid": "1338065", "title": "", "text": "the International Brotherhood of Electrical Workers Local Union No. 7 (the “Union”). Under this agreement, the Debtor was obligated to pay to each of the Funds certain percentages of the wages the Debtor paid to its employees. Although each Fund is governed by a separate trust agreement and declaration of trust, and has its own board of trustees, the Funds coordinate their collection activities against delinquent contractors through a collection committee. Through this committee, the Funds brought a consolidated action against the Debtor in the United States District Court for the District of Massachusetts for monies due under the collective bargaining agreement. On June 13, 1994, the district court entered a default judgment for the Funds in the amount of $617,480.77. On May 3, 1996, the Funds filed the instant involuntary petition. The Debtor filed an answer to the petition which asserted in relevant part; “The Debtor denies that there are three or more actual entities each of which is a holder of a claim against it, and states that the [Petitioning Creditors] are actually one entity.” After a pre-trial hearing, the Court scheduled the matter for an evidentiary hearing. At the evidentiary hearing, the parties presented to the Court a set of stipulated facts and memoranda of law where upon the Court took the matter under advisement. II. Positions of the Parties The Debtor moves to dismiss the involuntary petition on the grounds that the petition was not brought by three creditors each of which is a holder of a claim. Specifically, the Debtor contends that even though there are three funds, there is essentially only one claim because the obligation to the Funds arises from a single collective bargaining agreement. Additionally, the Debtor argues that since the district court awarded the Petitioning Creditors a single judgment in one sum for the three Funds, there is just one claim. The Petitioning Creditors argue that since the collective bargaining agreement provides for three separate and distinct payments to three separate and distinct funds, the Petitioning Creditors are three creditors with three different claims. III. Discussion Section 303(b) specifies who may" }, { "docid": "10914838", "title": "", "text": "In In re McMeekin, 18 B.R. 177, 177-78 (Bankr. D.Mass.1982) and In re McMeekin, 16 B.R. 805, 809 (Bankr.D.Mass.1982), the court held that joint payees on a promissory note do not hold separate claims under section 303(b) because they together have one right of payment which is jointly enforceable. In In re Gilbert, 115 B.R. 458, 461 (Bankr.S.D.N.Y. 1990), the court held that a creditor holding three separate claims against a debtor counts as one petitioning creditor, even though the creditor acquired the claims from three separate entities. Grey, Heerey, and the indenture trustee, however, are not joint payees, nor are they one entity holding separate claims. Thus, these cases do not lead to the conclusion that the joinder of the Bank of America extinguishes the claims of Grey and Heerey. Therefore, we conclude that the bankruptcy court erred as a matter of law when it dismissed the appellants’ involuntary petition after Bank of America’s joinder. Under the terms of the Federated indenture and the plain language of the statute, the joinder of the indenture trustee does not extinguish the claims owned by the debenture holders. REVERSED and REMANDED for further proceedings consistent with this opinion. . The conjunctive form of “either” is “used as a function word before two or more coordinate words, phrases, or clauses joined usually by or to indicate that what immediately follows is the first of two or more alternatives that are equally applicable or mutually exclusive.” Webster's Third New International Dictionary 728 (1976) (emphasis added). . Section 508 of the Federated Indenture provides: Notwithstanding any other provision in this Indenture, the Holder of any Debenture shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 307) interest on such Debenture ... and to institute suit for the enforcement of any such payment and right to exchange, and such rights shall not be impaired without the consent of such Holder. . Because of this conclusion, we need not reach the other issues raised by this appeal, namely, whether the bankruptcy court" } ]

[ { "docid": "22348634", "title": "", "text": "a State may consistently with the Fourth Amendment compel a suspect to undergo surgery of this kind in a search for evidence of a crime. II The Fourth Amendment protects “expectations of privacy,” see Katz v. United States, 389 U. S. 347 (1967) — the individual’s legitimate expectations that in certain places and at certain times he has “the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandéis, J., dissenting). Putting to one side the procedural protections of the warrant requirement, the Fourth Amendment generally protects the “security” of “persons, houses, papers, and effects” against official intrusions up to the point where the community’s need for evidence surmounts a specified standard, ordinarily “probable cause.” Beyond this point, it is ordinarily justifiable for the community to demand that the individual give up some part of his interest in privacy and security to advance the community’s vital interests in law enforcement; such a search is generally “reasonable” in the Amendment’s terms. A compelled surgical intrusion into an individual’s body for evidence, however, implicates expectations of privacy and security of such magnitude that the intrusion may be “unreasonable” even if likely to produce evidence of a crime. In Schmerber v. California, 384 U. S. 757 (1966), we addressed a claim that the State had breached the Fourth Amendment’s protection of the “right of the people to be secure in their persons . . . against unreasonable searches and seizures” (emphasis added) when it compelled an individual suspected of drunken driving to undergo a blood test. Schmerber had been arrested at a hospital while receiving treatment for injuries suffered when the automobile he was driving struck a tree. Id., at 758. Despite Schmerber’s objection, a police officer at the hospital had directed a physician to take a blood sample from him. Schmerber subsequently objected to the introduction at trial of evidence obtained as a result of the blood test. The authorities in Schmerber clearly had probable cause to believe that he had been" } ]

[ { "docid": "23509667", "title": "", "text": "the fourth rather than the eighth amendment. CONCLUSION In my view, the prison’s cross-gender clothed body searches violate the fourth amendment. I would uphold the injunction on that ground. However, I also believe the searches violate the eighth amendment. I therefore join in Judge O’Scannlain’s opinion, except for Part II. . As the institution's name suggests, there are no male inmates at the prison, only females. . Judge O'Scannlain’s opinion is thus a majority opinion insofar as it relates to the existence of an eighth amendment violation as well as with respect to all matters other than the choice of that amendment rather than the fourth amendment as the proper basis for our holding. Part II of his opinion, dealing with the decision to rely on the eighth amendment rather than the fourth, represents a plurality view only. .While suspicion searches are not challenged in this action, I suspect that the outcome would be the same—even though the controlling issue might be slightly different; i.e., whether it would be feasible for male guards who develop sufficient suspicion regarding particular inmates either to summon female guards to conduct the searches on the spot or to take the inmates to a post at which a female guard is stationed so that the search may be conducted there. . At the time the grievance was filed, Superintendent Vail had not yet authorized the second category of suspicionless searches—random searches. . In an unsuccessful attempt to minimize inmates’ complaints, Superintendent Vail ordered that all random and routine searches, whether performed by male or by female guards, be conducted in the presence of a staff member who was to act as an observer. . Thus, as of now, male guards do not conduct any body searches of female inmates. See supra page 1532, ¶ 2; page 1533, ¶ 1. . Judge O’Scannlain states that I fail \"to pinpoint precisely which legitimate Fourth Amendment interest is violated by these searches.\" Majority at 1524. He is sorely mistaken. The precise fourth amendment interest that is violated is \"[t]he right of the people to be secure in their" }, { "docid": "23043258", "title": "", "text": "to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). “[TJhere must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it. Thus, a regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational.” Id. at 89-90, 107 S.Ct. at 2262. In or out of prison, plaintiff has only a limited privacy interest in not having his blood tested. In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court held that a state could constitutionally “search” a drunken driving suspect by testing his blood. “The intrusion perhaps implicated Schmerber’s most personal and deep-rooted expectations of privacy, and the Court recognized that fourth amendment analysis thus required a discerning inquiry into the facts and circumstances to determine whether the intrusion was justifiable.” Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985). The Court concluded that the intrusion, while implicating “deep-rooted expectations of privacy,” was nonetheless minimal. “In noting that a blood test was ‘a commonplace in these days of periodic physical examinations,’ Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836, Schmerber recognized society’s judgment that blood tests do not constitute an unduly extensive imposition on an individual’s personal privacy and bodily integrity.” Winston, 470 U.S. at 762, 105 S.Ct. at 1617. “A crucial factor in analyzing the magnitude of the intrusion in Schmerber is the extent to which the procedure may threaten the safety or health of the individual. ‘[FJor most people [a blood test] involves virtually no risk, trauma, or pain.’ ” Winston, 470 U.S. at 761, 105 S.Ct. at 1617 (quoting Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836). Plaintiff’s privacy expectation is at least as limited as the plaintiff’s in Schmerber. Moreover, in concluding that prison drug testing passed constitutional muster in Spence, the Eighth Circuit relied on the fact that in prison, an individual’s “expectation of privacy in" }, { "docid": "6425766", "title": "", "text": "in Hudson, our circuit has held that the Fourth Amendment right of people to be secure against unreasonable searches and seizures “extends to incarcerated prisoners; however, the reasonableness of a particular search is determined by reference to the prison context.” Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir.1988). In Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987), the Supreme Court stated “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” The Court identified four factors to guide reviewing courts in applying this test: 1) the existence of a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; 2) the existence of alternative means of exercising the right that remain open to prison inmates; 3) the impact that accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally; and 4) the absence of ready alternatives as evidence of the reasonableness of the regulation. Id. at 89-91, 107 S.Ct. at 2261-63. The Supreme Coúrt has held that Turner applies whenever “the needs of prison administration implicate constitutional rights.” Washington v. Harper, 494 U.S. 210, 224, 110 S.Ct. 1028, 1038, 108 L.Ed.2d 178 (1990). Thus, courts have applied the Turner test to prisoners’ Fourth Amendment claims, as well as their First and Fourteenth Amendment claims. See, e.g., Covino v. Patrissi, 967 F.2d 73 (2d Cir.1992); Michenfelder, 860 F.2d at 331. In Michenfelder, we said: Not all four factors will be relevant to each case. For example, the second Turner factor — availability of other avenues for exercising the right infringed upon — is much more meaningful in the [Fjirst [A’Jmendment context than the [FJourth or [Ejighth, where the right is to be free from a particular wrong. Though all our prior decisions employing the Turner ... analysis have involved infringements of inmates’ [F]irst [Ajmendment rights, Reimers v. Oregon, 846 F.2d 561 (9th Cir.1988) (free exercise); McElyea v. Babbitt, 833 F.2d 196, 197 (9th" }, { "docid": "23509642", "title": "", "text": "to privacy in their cells, Hudson v. Palmer, supra (plurality opinion), the limitation on privacy rights has not been extended to searches of prisoners’ bodies. See id., 468 U.S. at 555 n. 31, 104 S.Ct. at 3215 n. 31 (Stevens, J., concurring in part and dissenting in part). Following Hudson v. Palmer, courts, including ours, have consistently held that the fourth amendment applies to searches of prisoners themselves. See, e.g., Cornwell v. Dahlberg, 963 F.2d 912, 916-17 (6th Cir.1992) (male inmate strip-searched before female guards raises a valid fourth amendment privacy claim); Michenfelder v. Sumner, 860 F.2d 328 (9th Cir.1988) (visual body cavity searches of inmates do not violate fourth amendment); Bonitz v. Fair, 804 F.2d 164 (1st Cir.1986) (fourth amendment right to be free of body cavity search overcomes claim of qualified immunity). The parties do not dispute that the fourth amendment is implicated in this case. In Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the Supreme Court established the general stan dard for evaluating prisoners’ constitutional claims, including fourth amendment claims. Turner distills the principles originally established in Bell v. Wolfish, 441 U.S. 520, 551, 99 S.Ct. 1861, 1880, 60 L.Ed.2d 447 (1979), and a series of related cases. Turner summarizes the standard that emerged from these cases as follows: \"when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is `reasonably related’ to legitimate penological interests [and is not] an `exaggerated response’ to those concerns.\" Turner, 482 U.S. at 87, 107 S.Ct. at 2260-61, 96 L.Ed.2d 64 (1987). Turner also identifies four factors that should be considered when determining whether this standard is met: first, whether there is \"a `valid, rational connection’ between the prison regulation and a neutral, legitimate government interest put forward to justify it\"; second, whether there are alternative means of exercising the asserted constitutional right that remain open to the inmates; third, whether and to what extent accommodation of the asserted right will have an impact on prison staff, inmates, and the allocation of prison resources generally; and, fourth, whether a ready" }, { "docid": "23482608", "title": "", "text": "determine whether Covino has exhibited a subjective expectation of privacy and whether society is prepared to recognize that expectation of privacy as reasonable. See California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986); Security & Law Enforcement Employees, 737 F.2d at 201-02. If so, we proceed to a second inquiry in which we identify the interests asserted by the state actors for the searches and assess whether, in this particular context, these asserted interests, when balanced against the inmate’s privacy expectations, sufficiently promote legit imate governmental interests in the absence of a warrant or some level of individualized suspicion justifying the search. See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665-66, 109 S.Ct. 1384, 1390-91, 103 L.Ed.2d 685 (1989); Security & Law Enforcement Employees, 737 F.2d at 202-05. In Hudson, the Supreme Court ruled that “shakedown” searches of an inmate’s cell did not violate the fourth amendment because prisoners have no fourth amendment privacy rights within the confines of their individual cells. The Supreme Court’s decision stemmed from its perception that recognition of such a privacy right was irreconcilable with the concept of incarceration and the needs and objectives of correctional institutions. Hudson, 468 U.S. at 524-26, 104 S.Ct. at 3199-3200. While we acknowledge the clear teaching of the Supreme Court’s holding in Hudson with respect to prison spaces, we believe that maintenance of prison security is not burdened unduly by the recognition that inmates do retain a limited right to bodily privacy. Cf. Grummett v. Rushen, 779 F.2d 491, 494-95 (9th Cir.1985) (assuming inmates have fourth and fourteenth amendment privacy right in not being viewed naked by members of opposite sex who are employed as prison guards); Forts v. Ward, 621 F.2d 1210, 1217 (2d Cir.1980) (implying same). The Supreme Court itself has observed that “the Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). The record indicates that Covino did exhibit an actual, subjective expectation of bodily privacy and, thus, Covino has demonstrated an interest in" }, { "docid": "21632725", "title": "", "text": "J.A. 171. And we agree with our sister circuits that, under Wolfish, prisoners retain an interest in some degree of bodily privacy and integrity after Hudson. See King v. McCarty, 781 F.3d 889, 900 (7th Cir. 2015) (per curiam) (“Even in prison, case law indicates that the Fourth Amendment protects, to some degree, prisoners’ bodily integrity against unreasonable intrusions into their bodies.”); Sanchez v. Pereira-Castillo, 590 F.3d 31, 42 & n.5 (1st Cir. 2009) (“We have recognized that a limited right to bodily privacy against searches is not incompatible with incarceration.”); Thompson v. Souza, 111 F.3d 694, 699 (9th Cir. 1997) (“Notwithstanding the language in Hudson, our circuit has held that the Fourth Amendment right of people to be secure against unreasonable searches and seizures extends to incarcerated prisoners.... ” (internal quotations omitted)); Elliott v. Lynn, 38 F.3d 188, 191 n. 3 (5th Cir. 1994) (same); Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992) (“[A] convicted prisoner maintains some reasonable expectations of privacy while in prison ... even though those privacy rights may be less than those enjoyed by non-prisoners.”); Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992) (holding that despite Hudson, “inmates do retain a limited right to bodily privacy”); Dunn v. White, 880 F.2d 1188, 1191 (10th Cir. 1989) (same); Spence v. Farrier, 807 F.2d 753 (8th Cir. 1986) (citing Wolfish and applying traditional Fourth Amendment analysis to prisoner’s claim). Accordingly, King maintains some legitimate expectation of privacy in his person. We hold that the Wolfish factors weigh against reasonableness and thus reverse the district court’s dismissal of King’s complaint. As to the first factor, the scope of the intrusion, the surgery was beneath the skin into a sensitive, private body part — it was certainly not “commonplace.” See Sanchez, 590 F.3d at 45. Unlike the blood test in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), this surgery involved “risk, trauma, [and] pain”: King alleged scarring and botched incisions, pain and tingling, and emotional anguish. See 384 U.S. at 771, 86 S.Ct. 1826; see also Winston v. Lee," }, { "docid": "10768437", "title": "", "text": "the use of alcohol by means of a “breathalyzer” test and use of controlled dangerous substances by means of a “urinalysis” are searches within the meaning of these amendments. See Storms v. Coughlin, 600 F.Supp. 1214, 1218 (S.D.N.Y.1984). These two tests are essentially indistinguishable from blood tests, which have been held by the Supreme Court to “plainly constitute searches of ‘persons,’ and depend antecedently upon the seizures of ‘persons,’ within the meaning of that Amendment.” Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). All three searches involve the forced extraction of bodily fluids — albeit by different means. Storms, supra, 600 F.Supp. at 1218. Breathalyzer and urine searches implicate the interests in human dignity and privacy found to be at stake in Schmerber. It is well settled that the Fourth Amendment protects people, not places, Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968); Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967); SEC & Law Enforcement Emp. District Council 82 v. Carey, 737 F.2d 187, 200-01 (2nd Cir.1984), and prohibits only unreasonable searches. Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925). The Fourth Amendment vests individuals with the right to be free from “unreasonable government intrusions into their legitimate expectations of privacy.” United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977); SEC & Law Enforcement Emp., supra, 737 F.2d at 200-01. See also Bell v. Wolfish, 441 U.S. 520, 558-59, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). Regulatory officials, as government agents, must act reasonably in their discretion, thereby safeguarding “the privacy and security of individuals against arbitrary invasions....” Marshall v. Barlow’s, Inc, 436 U.S. 307, 312, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305 (1978), quoting Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967); Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). As the Supreme Court has held," }, { "docid": "23509669", "title": "", "text": "persons . . . against unreasonable searches.\" U.S. Const. amend. IV. Moreover, while privacy is the primary interest underlying the fourth amendment, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), that amendment also protects persons against infringements of bodily integrity, Winston v. Lee, 470 U.S. 753, 761, 105 S.Ct. 1611, 1617, 84 L.Ed.2d 662 (1985), and personal dignity, Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). The Court refers to these interests together as \"dignitary interests.\" Winston v. Lee, 470 U.S. at 761, 105 S.Ct. at 1617. It is the privacy and dignitary interests of the female inmates that are violated here. . Although Turner discusses prison policies that implicate inmates’ first and fourteenth amendment rights, the Turner standard has been applied to prisoners’ fourth amendment rights as well. See, e.g., Covino v. Patrissi, 967 F.2d 73 (2d Cir.1992); Cornwell v. Dahlberg, supra; Michenfelder v. Sumner, supra. The Supreme Court has held that Turner applies whenever \"the needs of prison administration implicate constitutional rights.\" Washington v. Harper, 494 U.S. 210, 224, 110 S.Ct. 1028, 1038, 108 L.Ed.2d 178 (1990). However, the Court has not applied Turner to eighth amendment cases. See Hudson v. McMillian, supra; Wilson v. Seiter, — U.S. —, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). . In addition to Bell, the Court cites as the source of its rule Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984); Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). . See infra note 11. . One does not usually speak of \"exercising\" one’s right to be free from unreasonable searches in the same way that one speaks of exercising one’s right to marry, Turner, 482 U.S. at 94-99, 107 S.Ct. at 2265-67, or one’s right to receive mail, id., 482 U.S. at 91-93, 107 S.Ct. at 2263-64. The \"passiv[ity]\" of the right involved, Harris v. Thigpen, 941 F.2d 1495, 1517 (11th Cir.1991)," }, { "docid": "21632726", "title": "", "text": "be less than those enjoyed by non-prisoners.”); Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992) (holding that despite Hudson, “inmates do retain a limited right to bodily privacy”); Dunn v. White, 880 F.2d 1188, 1191 (10th Cir. 1989) (same); Spence v. Farrier, 807 F.2d 753 (8th Cir. 1986) (citing Wolfish and applying traditional Fourth Amendment analysis to prisoner’s claim). Accordingly, King maintains some legitimate expectation of privacy in his person. We hold that the Wolfish factors weigh against reasonableness and thus reverse the district court’s dismissal of King’s complaint. As to the first factor, the scope of the intrusion, the surgery was beneath the skin into a sensitive, private body part — it was certainly not “commonplace.” See Sanchez, 590 F.3d at 45. Unlike the blood test in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), this surgery involved “risk, trauma, [and] pain”: King alleged scarring and botched incisions, pain and tingling, and emotional anguish. See 384 U.S. at 771, 86 S.Ct. 1826; see also Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) (holding, outside of the prison context, that Virginia could not compel surgery to remove a bullet from a suspect’s chest, in part because of the risk, trauma, and pain involved in the procedure); Sanchez, 590 F.3d at 45 (finding scope egregious where plaintiff alleged that he was “slashed and mutilated” during surgery, that his “life and health were jeopardized,” and that he experienced “severe physical and emotional pain” as a result). The interest in bodily integrity involves the “most personal and deep-rooted expectations of privacy,” Lee, 470 U.S. at 760, 105 S.Ct. 1611, and here, the nature of the surgery itself — surgery into King’s penis — counsels against reasonableness. The district court acknowledged the “unusual” nature of the surgery but found that King “precipitated [it] by electing the unusual insertion of marbles into his penis” in the first instance. J.A. 177. That King decided to have marbles inserted into his penis, however, is of no moment; the scope of the intrusion is not a" }, { "docid": "21085257", "title": "", "text": "n. 3. Noteworthy in Grummett is Judge Sneed’s concurrence in which he concludes on the basis of Bell v. Wolfish that no residual rights of privacy had been infringed, and that the use of female guards to manage nude-male prisoners did not contravene the Eighth Amendment. Id. at 496 (Sneed, J., concurring in the result). In Michenfelder v. Sumner, 860 F.2d 328 (9th Cir.1988), a male prison inmate alleged that routine visual body cavity searches sometimes performed within view of female prison guards violated the Fourth and Eighth Amendments. Although we articulated “a prisoner’s limited right to bodily privacy,” we rejected their case. Applying the test of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and invoking Wolfish, we acknowledged both the legitimate penological interest in providing equal employment opportunities to women guards and the security interest in deploying available staff effectively. Id. at 334. We took note also of the limited nature of the guards’ involvement in the strip searches. The female guards’ observations were made from a control booth’s video monitors that provided a limited view of the searches. Id. We also said that “[e]vidence of female officers’ role in shower duty likewise did not establish an inappropriate amount of contact with disrobed prisoners.” Id. In 1992, we decided Sepulveda v. Ramirez, 967 F.2d 1413 (9th Cir.1992). Sepulveda involved a male parole officer who walked into the bathroom stall where Sepulveda, a female parolee, was urinating as part of a required drug test. In denying the officer qualified immunity, we said that Sepulveda’s “experience was far more degrading to [her] than the situation faced by the inmates in Grummett.” 967 F.2d at 1416. In addition, we stated that the constitutional “rights of parolees are even more extensive than those of inmates.” Id. In dissent, Judge O’Scannlain commented that: [B]oth times this circuit has addressed the question, it has permitted prison officials to view unclothed inmates of the opposite sex. We have engaged in balancing of inmates’ interest in not being viewed unclothed with the administrative needs of the prison. Thus, we have permitted" }, { "docid": "10768436", "title": "", "text": "place to be searched, and the persons or things to be seized. U.S. Const, amend. IV. Defendants argue that Fourth Amendment considerations are not implicated in this case because any searches made pursuant to the Commission’s policy would not be used in any criminal investigation or prosecution and are merely conditions of licensure. This contention is without merit. “It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.” Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1732, 18 L.Ed.2d 930 (1967). All of us are protected by the Fourth Amendment all of the time, not just when the state suspects us of criminal conduct. McDonell v. Hunter, 612 F.Supp. 1122, 1126 (S.D.Iowa, Vietor, C.J.). Likewise, licensure is merely a factor which must be included in the court’s evaluation of the constitutionality of a search. The Fourth and Fourteenth Amendments are implicated in this case because the detaining and testing of an individual for the use of alcohol by means of a “breathalyzer” test and use of controlled dangerous substances by means of a “urinalysis” are searches within the meaning of these amendments. See Storms v. Coughlin, 600 F.Supp. 1214, 1218 (S.D.N.Y.1984). These two tests are essentially indistinguishable from blood tests, which have been held by the Supreme Court to “plainly constitute searches of ‘persons,’ and depend antecedently upon the seizures of ‘persons,’ within the meaning of that Amendment.” Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). All three searches involve the forced extraction of bodily fluids — albeit by different means. Storms, supra, 600 F.Supp. at 1218. Breathalyzer and urine searches implicate the interests in human dignity and privacy found to be at stake in Schmerber. It is well settled that the Fourth Amendment protects people, not places, Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968); Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967); SEC &" }, { "docid": "23482609", "title": "", "text": "stemmed from its perception that recognition of such a privacy right was irreconcilable with the concept of incarceration and the needs and objectives of correctional institutions. Hudson, 468 U.S. at 524-26, 104 S.Ct. at 3199-3200. While we acknowledge the clear teaching of the Supreme Court’s holding in Hudson with respect to prison spaces, we believe that maintenance of prison security is not burdened unduly by the recognition that inmates do retain a limited right to bodily privacy. Cf. Grummett v. Rushen, 779 F.2d 491, 494-95 (9th Cir.1985) (assuming inmates have fourth and fourteenth amendment privacy right in not being viewed naked by members of opposite sex who are employed as prison guards); Forts v. Ward, 621 F.2d 1210, 1217 (2d Cir.1980) (implying same). The Supreme Court itself has observed that “the Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). The record indicates that Covino did exhibit an actual, subjective expectation of bodily privacy and, thus, Covino has demonstrated an interest in retaining this limited right. Further, we have little doubt that society is prepared to recognize as reasonable the retention of a limited right of bodily privacy even in the prison context. Apropos our second inquiry, whether the prison officials had sufficient justification to intrude on Covino’s fourth amendment rights, Harper and Turner are instructive. In Harper, the Supreme Court stated that the proper standard for determining the validity of a prison regulation claimed to infringe on an inmate’s constitutional rights is to ask whether the regulation is reasonably related to legitimate penological interests.. This is true even when the constitutional right claimed to have been infringed is fundamental, and the State under other circumstances would have been required to satisfy a more rigorous standard of review.... ... [This standard applies] in all cases in which a prisoner asserts that a prison regulation violates the Constitution.... We made quite clear that the standard of review we adopted in Turner applies to all circumstances in which the needs of prison administration implicate constitutional rights. 494 U.S. at" }, { "docid": "23509641", "title": "", "text": "S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974); rather, inmates retain \"those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration.\" Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984) (plurality opinion). Prisoners may not be subjected to invidious racial discrimination, Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) (per curiam); they may petition the government for a redress of grievances, Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); they may not be denied access to the courts, Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); they are entitled to due process of law, Wolff v. McDonnell, supra; and they may not be subjected to cruel and unusual punishment, Hudson v. McMillian, — U.S. —, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Of more particular concern here, prison inmates have a right of privacy and dignity in their persons. Although the Supreme Court has held that prisoners have no right to privacy in their cells, Hudson v. Palmer, supra (plurality opinion), the limitation on privacy rights has not been extended to searches of prisoners’ bodies. See id., 468 U.S. at 555 n. 31, 104 S.Ct. at 3215 n. 31 (Stevens, J., concurring in part and dissenting in part). Following Hudson v. Palmer, courts, including ours, have consistently held that the fourth amendment applies to searches of prisoners themselves. See, e.g., Cornwell v. Dahlberg, 963 F.2d 912, 916-17 (6th Cir.1992) (male inmate strip-searched before female guards raises a valid fourth amendment privacy claim); Michenfelder v. Sumner, 860 F.2d 328 (9th Cir.1988) (visual body cavity searches of inmates do not violate fourth amendment); Bonitz v. Fair, 804 F.2d 164 (1st Cir.1986) (fourth amendment right to be free of body cavity search overcomes claim of qualified immunity). The parties do not dispute that the fourth amendment is implicated in this case. In Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the Supreme Court established the general stan dard for evaluating prisoners’ constitutional claims," }, { "docid": "23509668", "title": "", "text": "sufficient suspicion regarding particular inmates either to summon female guards to conduct the searches on the spot or to take the inmates to a post at which a female guard is stationed so that the search may be conducted there. . At the time the grievance was filed, Superintendent Vail had not yet authorized the second category of suspicionless searches—random searches. . In an unsuccessful attempt to minimize inmates’ complaints, Superintendent Vail ordered that all random and routine searches, whether performed by male or by female guards, be conducted in the presence of a staff member who was to act as an observer. . Thus, as of now, male guards do not conduct any body searches of female inmates. See supra page 1532, ¶ 2; page 1533, ¶ 1. . Judge O’Scannlain states that I fail \"to pinpoint precisely which legitimate Fourth Amendment interest is violated by these searches.\" Majority at 1524. He is sorely mistaken. The precise fourth amendment interest that is violated is \"[t]he right of the people to be secure in their persons . . . against unreasonable searches.\" U.S. Const. amend. IV. Moreover, while privacy is the primary interest underlying the fourth amendment, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), that amendment also protects persons against infringements of bodily integrity, Winston v. Lee, 470 U.S. 753, 761, 105 S.Ct. 1611, 1617, 84 L.Ed.2d 662 (1985), and personal dignity, Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). The Court refers to these interests together as \"dignitary interests.\" Winston v. Lee, 470 U.S. at 761, 105 S.Ct. at 1617. It is the privacy and dignitary interests of the female inmates that are violated here. . Although Turner discusses prison policies that implicate inmates’ first and fourteenth amendment rights, the Turner standard has been applied to prisoners’ fourth amendment rights as well. See, e.g., Covino v. Patrissi, 967 F.2d 73 (2d Cir.1992); Cornwell v. Dahlberg, supra; Michenfelder v. Sumner, supra. The Supreme Court has held that Turner applies whenever \"the needs of prison administration implicate" }, { "docid": "23318592", "title": "", "text": "v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979))); see also Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir.1992) (despite Hudson, \"inmates do retain a limited right to bodily privacy”); Canedy v. Boardman, 16 F.3d 183, 185-86 (7th Cir.1994) (Hudson's abrogation of Fourth Amendment rights limited to prisoner’s cells; Wolfish governs searches of prisoners’ bodies); Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir.1992) (”[T]his Circuit has joined others in recognizing that a convicted prisoner maintains some reasonable expectations of privacy while in prison ... even though those privacy rights may be less than those enjoyed by non-prisoners.”); Somers v. Thurman, 109 F.3d 614, 617 (9th Cir.1997) (rejecting as dicta suggestion that the Court in Hudson \"intended to strip the inmates of all Fourth Amendment privacy rights”); Elliott v. Lynn, 38 F.3d 188, 191 n.3 (5th Cir.1994) (holding that inmates' Fourth Amendment protection from unreasonable body cavity searches survives Hudson); but see Johnson v. Phelan, 69 F.3d 144, 150 (7th Cir.1995), cert. denied, 519 U.S. 1006, 117 S.Ct. 506, 136 L.Ed.2d 397 (1996) (holding that, after Hudson, \"the [F]ourth [Ajmendment does not protect privacy interests within prisons”). . Having found that the rectal examinations did not violate the Fourth Amendment, we find that the Fourth Amendment claims against Drs. Roe III and IV were appropriately dismissed. Drs. Roe III and IV's only involvement in the surgical procedure was \"placfing] a consultation to the Surgery Department” at the insistence of John Doe. Thus, according to the complaint, they did not encourage or participate in the surgery. . The Supreme Court has acknowledged, however, that the existence of less intrusive alternatives may be relevant to the determination of the reasonableness of a particular search method. See Wolfish, 441 U.S. at 559 n. 40, 99 S.Ct. 1861 (discussing, on the assumption that such arguments would be relevant, the merits of various less-restrictive-alternative arguments). In the context of prisoners' First Amendment rights, the Court has explained that \"the absence of ready alternatives is evidence of the reasonableness of a prison regulation.” Turner v. Safley, 482 U.S. 78, 90, 107" }, { "docid": "4364112", "title": "", "text": "have failed to prove that the prison policy is not “reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. at 2261. B. The inmates argue that the cross-gender searches are unreasonable and violate the fourth amendment. In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) {Bell), the Supreme Court upheld the practice of routine body cavity searches of pretrial detainees. In doing so, the Court established a balancing test for evaluating searches in the prison context: [t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Id. at 559, 99 S.Ct. at 1884. Following Bell, we have rejected a number of fourth amendment challenges to searches within a prison. See Thompson v. City of Los Angeles, 885 F.2d 1439, 1445-46 (9th Cir.1989) (upholding body cavity search of arrestee); Michenfelder v. Sumner, 860 F.2d 328, 332-33 (9th Cir.1988) (Michenfelder) (visual strip searches of male inmates are not unconstitutional, even when viewed by female guards); Rickman v. Avaniti, 854 F.2d 327 (9th Cir.1988) {Rickman) (routine visual strip searches do not violate fourth or fourteenth amendment); Grummett v. Rushen, 779 F.2d 491, 495-96 (9th Cir.1985) {Grummett) (no constitutional violation when female guards perform routine pat searches of male inmates). In Grummett, we rejected a constitutional challenge to a prison policy that permitted female guards to perform pat searches on clothed male inmates and occasionally view naked inmates. We pointed out that although the searches included the groin area, “[they] are done briefly and while the inmates are fully clothed, and thus do not involve intimate contact with the inmates’ bodies.” Id. at 496. We also observed that prohibiting the searches would “necessitate a tremendous rearrangement of work schedules, and possibly produce a risk to" }, { "docid": "23028590", "title": "", "text": "fourth amendment violation where employee refused to take urinalysis test). In addition, the Third Circuit has implicitly held that the fourth amendment applies to urinalysis. Shoemaker v. Handel, 795 F.2d 1136, 1142 (3d Cir.1986). In Allen v. City of Marietta, supra, and Capua, supra, the courts compared urine testing to the involuntary taking of a blood sample. “Though urine, unlike blood, is routinely discharged from the body so that no actual [physical] intrusion is required for its collection,” both can be “analyzed in a medical laboratory to discover numerous physiological facts about the person from whom it came.” Capua, supra, 643 F.Supp. at 1513. The Supreme Court has held that the involuntary administration of a blood test “plainly involves” the fourth amendment, which provides that “ ‘the right of the people to be secure in their persons * * * shall not be violated.’ ” (Emphasis added). Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966) (quoting the fourth amendment in part). We agree with those courts which have held that urinalysis is a search and seizure within the meaning of the fourth amendment. Having determined that urinalysis is a search and seizure, we look to a balancing of “the need to search against the invasion which the search entails.” Camara, supra, 387 U.S. at 537, 87 S.Ct. at 1735. Iowa Department of Corrections officials assert a strong need to see that prison guards are not working while under the influence of drugs or alcohol. Officials argue that prison security demands that those who have contact with inmates must be alert at all times. They also urge that the use of drugs by a correction officer is some positive indication that such officer may bring drugs into the prison for the use of the inmate. Urinalysis properly administered is not as intrusive as a strip search or a blood test. While the prison officials have the same legitimate interest in maintaining prison security discussed supra, the infringement upon the privacy interest of correctional institution employees, already diminished, is lessened. Officials have a legitimate interest" }, { "docid": "1107924", "title": "", "text": "contact with the inmates’ bodies. The record indicates that the searches are performed by the female guards in a professional manner and with respect for the inmates. Therefore such searches are acceptable under the fourth amendment. Bagley, 579 F.Supp. at 1103. The record indicates that the female guards do not routinely conduct or observe strip or body cavity searches. It has been shown that only on two or three occasions, in emergency situations, have female guards observed strip searches. The prisoners have not shown that such action was not justified under the emergent circumstances. We conclude that the interest in prison security justifies such observations in emergency situations. Accord Lee v. Downs, 641 F.2d at 1119-21; Hudson v. Goodlander, 494 F.Supp. at 894. CONCLUSION For the reasons set forth above, we are satisfied that prison officials in this case have struck an acceptable balance among the inmates’ privacy interests, the institution’s security requirements, and the female guards’ employment rights. The female guards are restricted in their contact with the inmates, and the record clearly demonstrates that at all times they have conducted themselves in a professional manner, and have treated the inmates with respect and dignity. Accordingly, the judgment of the district court is AFFIRMED. . We will limit discussion to the inmates’ privacy rights under the fourth and fourteenth amendments. The prisoners’ claims are best supported analytically under the fourth amendment’s guarantee of one’s legitimate expectation of privacy against unreasonable searches and seizures, see generally Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and under the liberty component of the fourteenth amendment, see generally Whalen v. Roe, 429 U.S. 589, 598-600, 97 S.Ct. 869, 875-77, 51 L.Ed.2d 64 (1977). The inmates do not refer to the type of harm protected by the right of free association under the first amendment, see Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), or to the type of shocking and barbarous treatment protected against by the eighth amendment, see Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)." }, { "docid": "220858", "title": "", "text": "“rational relationship” standard affords prison officials great flexibility to establish policies that would best balance the penological interests of the institution with the constitutional rights of the inmates. Turner, supra, 482 U.S. at 89. In determining whether the prison policy is reasonably related to some legitimate penological interest, courts have enumerated several factors for consideration, including (1) whether there is a valid, rational connection between the prison policy and the legitimate governmental interest asserted to justify it; (2) the existence of alternative means for inmates to exercise their constitutional rights; (3) the impact that accommodation of these constitutional rights may have on other guards and inmates, and on the allocation of prison resources; and (4) the absence of ready alternatives as evidence of the reasonableness of the regulation. E.g., Michenfelder v. Sumner, 860 F.2d 328, 331 (9th Cir.1988); see also, Bell v. Wolfish, supra, 441 U.S. at 559 (“Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.”). This has been applied to unwritten prison policies as well as prison regulations that may violate an inmate’s Fourth Amendment rights protecting against the invasion of privacy. In Michenfelder, supra, 860 F.2d at 331, the court applied the Turner standard in reviewing a prison policy regarding strip searches before the transport of inmates. In this Circuit, we applied Turner’s, “reasonably related” standard upon reconsideration of an inmate’s claim of Fourth Amendment privacy violations as a result of surveillance by female prison guards. Kent v. Johnson, 821 F.2d 1220, 1229 (6th Cir.1987) (Jones, J. on reconsideration). In charging the jury regarding Cornwell’s Fourth Amendment privacy claim stemming from the strip search, the court failed adequately to instruct the jury to find some valid, rational connection between the prison policy and a legitimate penological interest, as Turner requires. Furthermore, the court failed to inform the jury of the necessity of deference to prison officials in establishing these policies. As a result, we hold that the charge as a whole did not adequately inform the jury" }, { "docid": "23509604", "title": "", "text": "agree that the conduct at issue plainly is a “search” that implicates the protections of the Fourth Amendment. Consequently, Judge Reinhardt’s contention that we should decide this case on the basis of the Fourth Amendment, because a search reasonable under the Fourth Amendment “cannot, by definition,” violate the Eighth Amendment, has surface appeal. Its fallacy lies in the failure to pinpoint precisely which legitimate Fourth Amendment interest is violated by these searches. Judge Reinhardt avoids the issue by simply presuming the inmates possess rights that are invaded by these searches. He proceeds directly to the Turner analysis of whether the search policy is valid, as reasonably related to legitimate penological interests, without examining how the inmates'’ Fourth Amendment rights are infringed. Whether such rights exist—whether the inmates possess privacy interests that could be infringed by the cross-gender aspect of otherwise constitutional searches— is a difficult and novel question, and one that cannot be dismissed lightly. But we cannot assume from the fact that the searches cause immense anguish that they therefore violate protected Fourth Amendment interests. Far from it, our prior case law suggests that prisoners’ legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited. See Grummett v. Rushen, 779 F.2d 491, 495-96 (9th Cir.1985) (pat-down searches of male inmates that included groin area by female guards do not violate Fourth Amendment); Michenfelder, 860 F.2d at 334 (occasional visual strip searches of male inmates by female guards do not violate Fourth Amendment). The frequency and scope of the searches in Grummett and Michenfelder were significantly less invasive than the searches at issue here, and hence those cases are not controlling. Most importantly, however, the prisoners in those cases rested their claims upon invasions of privacy. The gravamen of the inmates’ charge here is that the cross-gender clothed body searches inflict great pain and suffering. The unnecessary and wanton infliction of pain upon prisoners constitutes cruel and unusual punishment forbidden by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) (quotations omitted). Although the inmates here may" } ]

[ { "docid": "11131060", "title": "", "text": "law survives the proper level of scrutiny. See United States v. Greeno, 679 F.3d 510, 518 (6th Cir.2012); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C.Cir.2011) (Heller II); Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir.2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.2010) United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010). But see United States v. Skoien, 614 F.3d 638, 641-42 (7th Cir.2010) (en banc) (eschewing the two-step framework and resisting the “levels of scrutiny quagmire,” but applying intermediate scrutiny to a categorical restriction). We adopt a version of this two-step approach and sketch a skeleton of the framework here, leaving future cases to put meat on the bones. We agree that the first inquiry is whether the conduct at issue falls within the scope of the Second Amendment right. See, e.g., Chester, 628 F.3d at 680. To determine whether a law impinges on the Second Amendment right, we look to whether the law harmonizes with the historical traditions associated with the Second Amendment guarantee. See Heller, 554 U.S. at 577-628, 128 S.Ct. 2783 (interpreting Second Amendment based on historical traditions); United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir.2011) (“[H]istorical meaning enjoys a privileged interpretive role in the Second Amendment context.”). Heller illustrates that we may rely on a wide array of interpretive materials to conduct a historical analysis. See 554 U.S. at 600-26, 128 S.Ct. 2783 (relying on courts, legislators, and scholars from before ratification through the late 19th century to interpret the Second Amendment); see also United States v. Rene E., 583 F.3d 8, 13-16 (1st Cir.2009) (relying on wide-ranging materials, including late 19th- and early 20th-century cases, to uphold federal ban on juvenile handgun possession). If the challenged law burdens conduct that falls outside the Second Amendment’s scope, then the law passes constitutional muster. See, e.g., Marzzarella, 614 F.3d at 89. If the law burdens conduct that falls within the Second Amendment’s scope, we then proceed to apply the appropriate level of means-ends scrutiny. See" } ]

[ { "docid": "2513651", "title": "", "text": "effect.” Id. at 628 n. 27,128 S.Ct. 2783. Like the majority ,of our sister circuits, we have discerned from Heller’s approach a two-step Second Amendment inquiry. See United States v. Chovan, 735 F.3d 1127, 1136-37 (9th Cir.2013) (collecting cases). The two-step inquiry we have adopted “(1) asks whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny.” Id. at 1136 (citing United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010)). As other circuits have recognized, this inquiry bears strong analogies to the Supreme Court’s free-speech caselaw. See, e.g., Ezell v. City of Chicago, 651 F.3d 684, 702-03, 706 (7th Cir.2011) (“Both Heller and McDonald suggest that First Amendment analogies are more appropriate, and on the strength of that suggestion, we and other circuits have already begun to adapt First Amendment doctrine to the Second Amendment context.” (internal citation omitted)). In the first step, we ask “whether the challenged law burdens conduct protected by the Second Amendment,” Chovan, 735 F.3d at 1136, based on a “historical understanding of the scope of the [Second Amendment] right,” Heller, 554 U.S. at 625, 128 S.Ct. 2783, or whether the challenged law falls within a “well-defined and narrowly limited” category of prohibitions “that have been historically unprotected,” Brown v. Entm’t Merchants Ass’n, - U.S.-, 131 S.Ct. 2729, 2733, 2734, 180 L.Ed.2d 708 (2011). To determine whether a challenged law falls outside the historical scope of the Second Amendment, we ask whether the regulation is one of the “presumptively lawful regulatory measures” identified in Heller, 554 U.S. at 627 n. 26, 128 S.Ct. 2783, or whether the record includes persuasive historical evidence establishing that the regulation at issue imposes prohibitions that fall outside the historical scope of the Second Amendment, Chovan, 735 F.3d at 1137. See also United States v. Alvarez, - U.S. -, 132 S.Ct. 2537, 2544, 183 L.Ed.2d 574 (2012) (noting that only “the few historic and traditional categories [of conduct] long familiar to the bar” fall outside the" }, { "docid": "15416162", "title": "", "text": "challenging the Carry Law as void on its face only. Like our sister circuits, we believe a two-step inquiry is appropriate: first, we ask if the restricted activity is protected by the Second Amendment in the first place; and then, if necessary, we would apply the appropriate level of scrutiny. See Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C.Cir. 2011) (adopting two-step inquiry); Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir.2011) (noting that \"the threshold inquiry in some Second Amendment cases will be a 'scope’ question: Is the restricted activity protected by the Second Amendment in the first place,” and then moving to a second step, if necessary, applying the appropriate level of scrutiny); United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010) (noting that \"a two-part approach to Second Amendment claims seems appropriate under Heller,\" requiring first a determination that the law at issue imposes a burden on conduct falling within the scope of the Second Amendment, and then applying the requisite level of scrutiny); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.2010) (adopting a similar two-step analytical framework); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010) (adopting a two-pronged approach where “[£]irst, we ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. If it does not, our inquiry is complete. If it does, we evaluate the law under some form of means-end scrutiny.”). In this case, we need only reach the first step. In reaching this conclusion, we obviously need not, and do not, decide what level of scrutiny should be applied, nor do we decide whether a place of worship is a \"sensitive place” under Heller, 554 U.S. at 626, 128 S.Ct. at 2817. . There is nothing in the record that would allow us to draw a conclusion that the Tabernacle is anything other than a purely private religious organization that owns property in its non-profit corporation legal form. We proceed under this assumption. . The plain language of the Carry Law belies any argument that" }, { "docid": "19805889", "title": "", "text": "concealed weapons were lawful under the Second Amendment or state analogues.” Id. at 626, 128 S.Ct. 2783. It also provided a list of some “presumptively lawful regulatory measures”: nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Id. at 626-27 & n. 26, 128 S.Ct. 2783. The Court made clear, however, it was not “undertaking] an exhaustive historical analysis today of the full scope of the Second Amendment.” Id. at 626, 128 S.Ct. 2783. 2. The Constitutional Framework Under Heller, therefore, there are certain types of firearms regulations that do not govern conduct within the scope of the Amendment. We accordingly adopt, as have other circuits, a two-step approach to determining the constitutionality of the District’s gun laws. Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir.2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010). We ask first whether a particular provision impinges upon a right protected by the Second Amendment; if it does, then we go on to determine whether the provision passes muster under the appropriate level of constitutional scrutiny. See Ezell, 651 F.3d at 701-04; Chester, 628 F.3d at 680; Reese, 627 F.3d at 800-01; Marzzarella, 614 F.3d at 89; see also Nordyke v. King, 644 F.3d 776, 786 (9th Cir.2011) (“only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment”). As explained below, and again in keeping with other circuits, we think that insofar as the laws at issue here do impinge upon a Second Amendment right, they warrant intermediate rather than strict scrutiny. With respect to the first step, Heller tells us “longstanding” regulations are “presumptively lawful,” 554 U.S. at 626-27 & n. 26, 128 S.Ct. 2783; that" }, { "docid": "14355883", "title": "", "text": "of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In 2010, the Court affirmed that the “right to possess a handgun in the home for the purposes of self-defense” is incorporated into the protections against infringement by the states provided by the Fourteenth Amendment. McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 3050, 177 L.Ed.2d 894 (2010). In Heller, however, the Supreme Court qualified its holding, stating that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 626-27, 128 S.Ct. 2783. 2. Framework for Analysis When analyzing a constitutional challenge under the Second Amendment, a majority of the courts of appeals have adopted a two-step approach, first set forth by the Third Circuit: First, we ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.... If it does not, our inquiry is complete. If it does, we evaluate the law under some form of means-ends scrutiny. If the law passes muster under that standard, it is constitutional. If it fails, it is invalid. United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010). The Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits have explicitly adopted this approach. United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); National Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 194-95 (5th Cir.2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir.2012); Ezell v. City of Chicago, 651 F.3d 684, 703-04 (7th Cir.2011); United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir.2013); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.2010) Georgia- Carry.Org, Inc. v. Georgia, 687 F.3d 1244, 1260 n. 34 (11th Cir.2012); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C.Cir.2011) (Heller II)." }, { "docid": "12761355", "title": "", "text": "new applications received that year, which suggests that licenses were not necessarily issued in the year they were applied for, or that the number of licenses issued includes license renewals that are not considered \"new applications,” or both. In any event, this does not affect our analysis. . We also need not decide whether certain firearm laws might regulate conduct that is entirely unprotected by the Second Amendment, whether because of the type of weapon involved, the status of the person claiming the right, or where the right is sought to be exercised. See Ezell v. City of Chicago, 651 F.3d 684, 701-03 (7th Cir.2011); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.2010), cert. denied, - U.S. -, 131 S.Ct. 2476, 179 L.Ed.2d 1214 (2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); United States v. Marzzarella, 614 F.3d 85, 89-91 (3d Cir.2010), cert. denied, -U.S. -, 131 S.Ct. 958, 178 L.Ed.2d 790 (2011); cf. Heller v. District of Columbia, 670 F.3d 1244, 1253 (D.C.Cir.2011). . In addition to these time, place and manner restrictions, the \"presumptively lawful regulatory measures\" cited by the Court included \"longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Heller, 554 U.S. at 626, 627 n. 26, 128 S.Ct. 2783. The Court also noted that the Second Amendment right does not encompass all weapons, but only those “typically possessed by law-abiding citizens for lawful purposes” and thus does not include the right to possess \"dangerous and unusual weapons.” Id. at 625, 627, 128 S.Ct. 2783 (internal quotation marks omitted). . Nor is it inconsistent with language in Heller rejecting rational basis review for laws that infringe Second Amendment rights. See Heller, 554 U.S. at 628 n. 27, 128 S.Ct. 2783. In Heller, the Court was faced with restrictions that undoubtedly did impose a significant burden on core Second Amendment rights. It had no occasion to consider the appropriate standard of review for laws that only minimally impact such rights. . Decastro has not advanced any argument that § 922(a)(3) makes it more costly to acquire a firearm" }, { "docid": "18089171", "title": "", "text": "has cited Marzzarella favorably. See, e.g., N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 254 n.49 (2d Cir. 2015); Chovan, 735 F.3d at 1136-37; Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194-96 (5th Cir. 2012); GeorgiaCarry.org, Inc., v. Georgia, 687 F.3d 1244, 1260 n.34 (11th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller, 670 F.3d at 1252-53; Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir. 2011); Chester, 628 F.3d at 680-83; Reese, 627 F.3d at 800-05. Indeed, it has escaped disparagement by any circuit court. A year after Marzzarella we decided Barton, which involved a felon convicted under the provision now before us— § 922(g)(1). Barton raised facial and as-applied Second Amendment challenges to the firearm ban. After dispensing with his facial challenge and confirming the availability of as-applied challenges under the Second Amendment, we ruled that “the common law right to keep and bear arms did not extend to those who were likely to commit violent offenses.” 633 F.3d at 173. Because Barton’s prior convictions for possession of cocaine with intent to distribute and for receipt of a stolen firearm (as well as his illegal post-conviction sale of a firearm with an obliterated serial number) were “closely related to violent crime,” we concluded that he lacked Second Amendment rights. Id. at 174. Put another, way, Barton did not present “facts about himself and his background that distinguish[ed] his circumstances from those of persons historically barred from Second Amendment protections,” id. so he was “disqualified from the exercise of Second Amendment rights,” id. at 174 (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783), and his as-applied challenge could not succeed. Read together, Marzzarella and Barton lay out a framework for deciding as-applied challenges to gun regulations. At step one of the Marzzarella decision tree, a challenger must prove, per Barton, that a presumptively lawful regulation burdens his Second Amendment rights. This requires a challenger to clear two hurdles: he must (1) identify the traditional justifications for" }, { "docid": "14355884", "title": "", "text": "law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.... If it does not, our inquiry is complete. If it does, we evaluate the law under some form of means-ends scrutiny. If the law passes muster under that standard, it is constitutional. If it fails, it is invalid. United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010). The Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits have explicitly adopted this approach. United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); National Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 194-95 (5th Cir.2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir.2012); Ezell v. City of Chicago, 651 F.3d 684, 703-04 (7th Cir.2011); United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir.2013); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.2010) Georgia- Carry.Org, Inc. v. Georgia, 687 F.3d 1244, 1260 n. 34 (11th Cir.2012); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C.Cir.2011) (Heller II). The First Circuit has not expressly adopted this approach. However, the cases in which it has directly analyzed Second Amendment issues appear to fall under either the first or second step of the analysis performed by the other circuits. For example, in United States v. Rene E., 583 F.3d 8 (1st Cir.2009), the court concluded that the federal statute criminalizing firearm possession by juveniles did not violate the Second Amendment because it was one of the “longstanding prohibitions” that Heller did not call into question. 583 F.3d at 16. While Rene E. did not specifically hold that the statute' only burdened conduct outside the scope of Second Amendment protection, the analysis it followed was almost identical to those of other circuits when conducting the first step in their Second Amendment analysis. Compare Rene E., 583 F.3d at 13-16 (surveying nineteenth-century state laws and the founders’ attitudes on juvenile handgun possession) with National Rifle Ass’n of Am., 700 F.3d at 200-204 (surveying founding-era attitudes and nineteenth-century opinion on juvenile firearm possession). In United States v. Booker," }, { "docid": "4553049", "title": "", "text": "here, as we have done in the past, United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir.2013), and as many of our sister circuits have done in similar cases. See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194 (5th Cir.2012) (“A two-step inquiry has emerged as the prevailing approach.”); United States v. Greeno, 679 F.3d 510, 518 (6th Cir.2012); Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C.Cir.2011); Ezell, 651 F.3d at 701-04; United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.2010); United States v. Marzza-rella, 614 F.3d 85, 89 (3d Cir.2010). A The first question goes to the scope of the guarantee: Does the restricted activity — here, a restriction on a responsible, law-abiding citizen’s ability to carry a gun outside the home for self-defense — fall within the Second Amendment right to keep and bear arms for the purpose of self-defense? Ezell, 651 F.3d at 701; see also Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 96 (2d Cir.2012). Concerning the precise methods by which that right’s scope is discerned, the Heller and McDonald Courts were hardly shy: we must consult “both text and history.” Heller, 554 U.S. at 595, 128 S.Ct. 2783; see also McDonald, 130 S.Ct. at 3047 (reiterating that “the scope of the Second Amendment right” is determined by historical analysis and not interest balancing). The analysis begins — as any interpretive endeavor must — with the text. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” Heller, 554 U.S. at 634-35, 128 S.Ct. 2783. To arrive at the original understanding of the right, “we are guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning,’” unless evidence suggests that the language was used idiomatically." }, { "docid": "8611406", "title": "", "text": "not intended to be exhaustive. Id. at 627 n. 26, 128 S.Ct. 2783. Applying these principles, the Court invalidated a District of Columbia law that completely banned handgun possession in the home and required any lawful firearm to be kept disassembled and bound by a trigger lock at all times, rendering it inoperable. Id. at 628-35, 128 S.Ct. 2783. The Court explained that “the inherent right of self-defense [is] central to the Second Amendment!,]” and the challenged law impermissibly extended to the home, “where the need for defense of self, family, and property is most acute.” Id. at 628, 128 S.Ct. 2783. Although the Court did not decide on a level of scrutiny to be applied in cases involving Second Amendment challenges, it rejected rational basis review. Id. at 628 n. 27, 128 S.Ct. 2783. The Court explained that the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 635, 128 S.Ct. 2783. In United States v. Marzzarella, we articulated a two-step analysis for Second Amendment claims under Heller: First, we ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.... If it does not, our inquiry is complete. If it does, we evaluate the law under some form of means-end scrutiny. If the law passes muster under that standard, it is constitutional. If it fails, it is invalid. 614 F.3d 85, 89 (3d Cir.2010) (internal citations omitted). Under the Marzzarella framework, the “presumptively lawful” regulatory measures identified by the Supreme Court in Heller carry the presumption of validity because they regulate conduct “falling outside the scope of the Second Amendment’s guarantee.” United States v. Barton, 633 F.3d 168, 172 (3d Cir.2011) (citing Marzzarella, 614 F.3d at 91) (explaining that this is a better reading of Heller than one that would require “presumptively lawful” regulations to satisfy every level of constitutional scrutiny). In other words, the longstanding limitations mentioned by the Court in Heller are exceptions to the right to bear arms. Marzzarella, 614 F.3d at" }, { "docid": "12792150", "title": "", "text": "then, the Supreme Court decided in McDonald v. City of Chicago “that the Second Amendment right is fully applicable to the States,” but did not otherwise amplify Hellers analysis. See 561 U.S. 742, 750, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Just recently, in Caetano v. Massachusetts, the Court reiterated two points made by Heller: first, “that the Second Amendment ‘extends ... to ... arms ... that were not in existence at the time of the founding’ ”; and, second, that there is no merit to “the proposition ‘that only those weapons useful in warfare are protected.’ ” See Caetano, — U.S. -, 136 S.Ct. 1027, 1028, 194 L.Ed.2d 99 (2016) (per curiam) (alterations in original) (quoting Heller, 554 U.S. at 582, 624-25, 128 S.Ct. 2783) (remanding for further consideration of whether Second Amendment protects stun guns). The lower courts have grappled with Heller in a variety of Second Amendment cases. Like most of our sister courts of appeals, we have concluded that “a two-part approach to Second Amendment claims seems appropriate under Heller.” See United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (citing United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)); see also N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 254 (2d Cir. 2015); GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788 F.3d 1318, 1322 (11th Cir. 2015); United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); Nat'l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011) (“Hel ler II”); Ezell v. City of Chicago, 651 F.3d 684, 703-04 (7th Cir. 2011); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010). Pursuant to that two-part approach, we first ask “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” See Chester, 628 F.3d at 680 (internal quotation marks omitted). If the answer" }, { "docid": "3963178", "title": "", "text": "1262-63 (11th Cir.2004). “[A] preliminary injunction is an extraordinary and drastic remedy that should not be granted unless the movant clearly carries its burden of persuasion on each of these prerequisites.” Suntrust Bank v. Houghton Mifflin Co., 252 F.3d 1165, 1166 (11th Cir.2001) (per curiam). In analyzing a Second Amendment claim, this Court has followed a two-step analysis: “first, we ask if the restricted activity is protected by the Second Amendment in the first place; and then, if necessary, we ... apply the appropriate level of scrutiny.” GeorgiaCarry.Org I, 687 F.3d at 1260 n. 34; accord Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C.Cir.2011); Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir.2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010). III. A. We begin by asking whether the plaintiffs have established a substantial likelihood of success on their claim that the application of the Corps firearms regulation violated their Second Amendment rights. The Second Amendment provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const, amend. II. The Supreme Court recently revolutionized Second Amendment jurisprudence in its landmark cases District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). In Heller, the Court held for the first time that the Second Amendment “codified a pre-existing individual right to keep and bear arms,” GeorgiaCarry.Org I, 687 F.3d at 1259 (quoting Heller, 554 U.S. at 592, 128 S.Ct. 2783) (internal quotation marks omitted), for the “core lawful purpose of self-defense,” Heller, 554 U.S. at 630, 128 S.Ct. 2783, at least in the home, see id. at 628, 128 S.Ct. 2783. The Court identified the content of the Second Amendment right by examining the original public meaning of the Amendment’s text and the" }, { "docid": "1220869", "title": "", "text": "742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), guarantees an individual’s right to possess a firearm “unconnected with militia service.” Binderup, 836 F.3d at 343 (quoting Heller, 554 U.S. at 582, 128 S.Ct. 2783). The court reiterated both of Heller’s holdings that the Second Amendment protects the right of “law-abiding, responsible citizens to use arms in defense of hearth and home,” and that such a right was “not unlimited.” Id. (quoting Heller, 554 U.S. at 634-35, 626, 128 S.Ct. 2783). The court restated Heller’s assurance that “longstanding prohibitions on the possession of firearms by felons” were considered “presumptively lawful regulatory measures” that historically limited the scope of the Second Amendment right. Id. (quoting Heller, 554 U.S. at 626-27, 128 S.Ct. 2783). After recognizing these principles, the court in Binderup clarified the framework for bringing as-applied constitutional challenges against firearms regulations, which the court had set out in two prior cases. Id. at 339 (citing United States v. Marzzarella, 614 F.3d 85, 93-94 (3d Cir. 2010) (adopting framework for evaluating facial and as-applied Second Amendment challenges to laws prohibiting possession of firearms with obliterated serial numbers), and United States v. Barton, 633 F.3d 168, 172-73 (3d Cir. 2011) (finding § 922(g)(l)’s felon-in-possession ban facially constitutional but subject to as-applied challenges)). After noting Marzzarella’s favorable treatment by nearly every appeals court, the court in Binderup reaffirmed Marzzarella’s “‘two-pronged approach to Second Amendment challenges’ to firearms restrictions” like § 922(g)(l)’s felon-in-possession ban. Binderup, 836 F.3d at 346 (quoting Marzzarella, 614 F.3d at 89). D. Framework for As-Applied Second Amendment Challenges Under the Marzzarella-Binderup framework, there are two-steps in evaluating an as-applied challenge to a firearm regulation. At step one, a challenger must prove “that a presumptively lawful regulation burdens his Second Amendment rights.” Binderup, 836 F.3d at 346-47. In other words, the burden is on the challenger of the regulation to show that “the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” Id. at 346 (quoting Marzzarella, 614 F.3d at 89). If the regulation does not impose such a burden, it “must stand” and the" }, { "docid": "4553048", "title": "", "text": "Second Amendment right. Id. at 3050. It doesn’t take a lawyer to see that straightforward application of the rule in Heller will not dispose of this case. It should be equally obvious that neither Heller nor McDonald speaks explicitly or precisely to the scope of the Second Amendment right outside the home or to what it takes to “infringe” it. Yet, it is just as apparent that neither opinion is silent on these matters, for, at the very least, “the Supreme Court’s approach ... points in a general direction.” Ezell v. City of Chicago, 651 F.3d 684, 700 (7th Cir.2011) (noting that Heller does not leave us “without a framework for how to proceed”). To resolve the challenge to the D.C. restrictions, the Heller majority described and applied a certain methodology: it addressed, first, whether having operable handguns in the home amounted to “keep[ing] and bearing] Arms” within the meaning of the Second Amendment and, next, whether the challenged laws, if they indeed did burden constitutionally protected conduct, “infringed” the right. We apply that' approach here, as we have done in the past, United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir.2013), and as many of our sister circuits have done in similar cases. See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194 (5th Cir.2012) (“A two-step inquiry has emerged as the prevailing approach.”); United States v. Greeno, 679 F.3d 510, 518 (6th Cir.2012); Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C.Cir.2011); Ezell, 651 F.3d at 701-04; United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.2010); United States v. Marzza-rella, 614 F.3d 85, 89 (3d Cir.2010). A The first question goes to the scope of the guarantee: Does the restricted activity — here, a restriction on a responsible, law-abiding citizen’s ability to carry a gun outside the home for self-defense — fall within the Second Amendment right to keep and bear arms for the purpose of self-defense? Ezell, 651 F.3d at 701; see" }, { "docid": "14234627", "title": "", "text": "violence increases the risk of injury or homicide during a domestic violence incident; and (5) the use of firearms in connection with domestic violence often leads to injury or homicide. Id. at 167. The court concluded that the government had therefore “carried its burden of establishing a reasonable fit between the substantial government objective of reducing domestic gun violence and keeping firearms out of the hands of [domestic violence misdemeanants]”. Id. B. Chovan’s Second Amendment Challenge After considering the. approaches taken by other circuits that considered the constitutionality of § 922(g)(9), we hold as follows. We adopt the two-step Second Amendment inquiry undertaken by the Third Circuit in Marzzarella, 614 F.3d at 89, and the Fourth Circuit in Chester, 628 F.3d at 680, among other circuits. Applying that inquiry, we hold that § 922(g)(9) burdens conduct falling within the scope of the Second Amendment’s guarantee and that intermediate scrutiny applies to Cho-van’s Second Amendment challenge. Finally, like the First, Fourth, and Seventh Circuits, we apply intermediate scrutiny to § 922(g)(9) and .hold that it is constitutional on its face and as applied to Chovan. 1. The Two-Step Inquiry The two-step Second Amendment inquiry we adopt (1). asks whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny. Chester, 628 F.3d at 680; see also Marzzarella, 614 F.3d at 89. We believe this two-step inquiry reflects the Supreme Court’s holding in Heller that, while the Second Amendment protects an individual right to keep and bear arms, the scope of that right is not unlimited. 554 U.S. at 626-27, 128 S.Ct. 2783. The two-step inquiry is also consistent with the approach taken by other circuits considering various firearms restrictions post-Heller. See, e.g., Heller v. District of Columbia, 670 F.3d 1244, 1251-58 (D.C.Cir.2011) (“Heller II”); Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir.2011); United States v. Reese, 627 F.3d 792, 800-05 (10th Cir.2010). We join the Third, Fourth, Seventh, Tenth, and D.C. Circuits in holding that the two-step framework outlined above applies to Second Amendment challenges." }, { "docid": "13261598", "title": "", "text": "Sch. Dist. v. Rodriguez, 411 U.S. 1, 16, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (“strict judicial scrutiny [has been found] appropriate in reviewing legislative judgments that interfere with fundamental constitutional rights”). Before reaching that level-of-review question, however, whether the Second Amendment encompasses the claimed right must be decided. Heller v. District of Columbia, No. 10-7036, 670 F.3d 1244, at 1251-52, 2011 WL 4551558, at *5 (D.C.Cir. 4 Oct. 2011); Ezell v. City of Chicago, 651 F.3d 684, 701-02 (7th Cir.2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010). But see Nordyke v. King, 644 F.3d 776, 783 (9th Cir.2011) (“The Supreme Court’s reasoning in Heller and McDonald suggests that heightened scrutiny does not apply unless a regulation substantially burdens the right to keep and to bear arms for self-defense.” (emphasis added)). Put another way, if defendants’ alleged evidence-retention policy does not “impose[ ] a burden on conduct falling within the scope of the Second Amendment’s guarantee”, our inquiry is complete. Marzzarella, 614 F.3d at 89. Just as some regulation of speech — e.g., of obscenity and defamation — is “outside the reach” of the First Amendment, so, too, is some regulation of firearms outside the reach of the Second. Ezell, 651 F.3d at 702 (quoting United States v. Stevens, — U.S. —, 130 S.Ct. 1577, 1584-85, 176 L.Ed.2d 435 (2010)). See also Heller, 554 U.S. at 626-27, 627 n. 26, 128 S.Ct. 2783 (noting “the right secured by the Second Amendment is not unlimited” and listing “presumptively lawful” regulations). The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense. See Heller, 554 U.S. at 628-30, 128 S.Ct. 2783. Houston has not alleged defendants prevented his “retaining or acquiring other firearms”. Walters v. Wolf, 660 F.3d 307, 318 (8th Cir.2011) (holding no Second Amendment violation when plaintiffs firearm was not returned after court dismissed criminal charge against him). Therefore, he has" }, { "docid": "14234628", "title": "", "text": "constitutional on its face and as applied to Chovan. 1. The Two-Step Inquiry The two-step Second Amendment inquiry we adopt (1). asks whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny. Chester, 628 F.3d at 680; see also Marzzarella, 614 F.3d at 89. We believe this two-step inquiry reflects the Supreme Court’s holding in Heller that, while the Second Amendment protects an individual right to keep and bear arms, the scope of that right is not unlimited. 554 U.S. at 626-27, 128 S.Ct. 2783. The two-step inquiry is also consistent with the approach taken by other circuits considering various firearms restrictions post-Heller. See, e.g., Heller v. District of Columbia, 670 F.3d 1244, 1251-58 (D.C.Cir.2011) (“Heller II”); Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir.2011); United States v. Reese, 627 F.3d 792, 800-05 (10th Cir.2010). We join the Third, Fourth, Seventh, Tenth, and D.C. Circuits in holding that the two-step framework outlined above applies to Second Amendment challenges. 2. Applying the Two-Step Inquiry: Section 922(g)(9) Affects. Second Amendment Rights and Intermediate Scrutiny Applies At the first step of the inquiry, we conclude that by prohibiting domestic violence misdemeanants from possessing firearms, § 922(g)(9) burdens rights protected by the Second Amendment. Section 922(g)(9) is not mentioned in Heller. The government argues that § 922(g)(9) is a presumptively lawful' regulatory measure and does not burden rights historically understood to be protected by the Second Amendment. According to the government, § 922(g)(9) is part of a “long line of prohibitions and restrictions on the right to possess firearms by people perceived as dangerous or violent.” We do not agree. First, it is not clear that such prohibitions are so longstanding. The first federal firearm restrictions regarding violent offenders were not passed until 1938, as part of the Federal Firearms Act. See C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 698, 708 (2009) (noting that “one can with a good degree of confidence say that bans on convicts" }, { "docid": "11290331", "title": "", "text": "so substantial an encumbrance on individual Second Amendment rights.” Id. at 708-09. The City did not carry this burden, so we instructed the district court to enjoin the firing-range ban. Id. at 709-11. All this is established law. Resisting these settled propositions, the City now asks us to revisit and modify the analytical framework established in Ezell I. In its view only laws that substantially or “unduly” burden Second Amendment rights should get any form of heightened judicial scrutiny. This is an odd argument; we specifically addressed and rejected that approach in Ezell I. Id. at 708 n.12, 128 S.Ct. 2783; id. at 706, 128 S.Ct. 2783. Our reasoning flowed from Heller itself: The Supreme Court explicitly rejected rational-basis review, making it clear that burdens on Second Amendment rights are always subject to heightened scrutiny. Heller, 554 U.S. at 628 n.27, 128 S.Ct. 2783 (“If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibition on irrational laws, and would have no effect.”). In McDonald the Court cautioned against treating the Second Amendment as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” 561 U.S. at 780, 130 S.Ct. 3020. The City’s proposed “substantial burden” test as a gateway to heightened scrutiny does exactly that. We note for good measure that most other circuits have adopted the framework articulated in Ezell I and require some form of heightened scrutiny when evaluating the government’s justification for a law challenged on Second Amendment grounds. See, e.g., Tyler v. Hillsdale Cty. Sheriffs Dep’t, 775 F.3d 308, 326 (6th Cir. 2014) (en banc); Jackson v. City & County of San Francisco, 746 F.3d 953, 961 (9th Cir. 2014); Nat'l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 700 F.3d 185, 194 (5th Cir. 2012); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627" }, { "docid": "8178431", "title": "", "text": "it provide a methodology by which non-listed laws might be constitutionally assessed. Id. at 627 n. 26, 635, 128 S.Ct. 2783. In Heller, the Court applied these principles and invalidated the District of Columbia’s handgun ban, explaining that “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family would fail constitutional muster.” Id. at 628-29, 128 S.Ct. 2783 (footnote, citation, and internal quotation marks omitted). The Court did not say which form of scrutiny should apply, but it did rule out rational basis scrutiny, which would be “redundant with the separate constitutional prohibitions on irrational laws,” thereby depriving the Second Amendment of any independent effect. Id. at 628 n. 27,128 S.Ct. 2783. We first applied Heller in United States v. Chester, 628 F.3d 673 (4th Cir.2010), where we adopted — as had been adopted by two other circuits, United States v. Marzzarella, 614 F.3d 85 (3d Cir.2010), and United States v. Skoien, 587 F.3d 803 (7th Cir.2009), rev’d 614 F.3d 638 (7th Cir.2010) (en banc) — a two-step approach for evaluating a statute under the Second Amendment. First, we inquire whether the statute in question “imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification.” 628 F.3d at 680. And second, if the statute burdens such protected conduct, we apply “an appropriate form of means-end scrutiny.” Id. Following this approach, we now proceed to evaluate Carter’s constitutional challenge to § 922(g)(3). Under the first step, we have three times deferred reaching any conclusion about the scope of the Second Amendment’s protection. In Chester, the government did not attempt to argue that domestic violence misdemeanants, who were prohibited by § 922(g)(9) from possessing a firearm, categorically fell outside the historical scope of the Second Amendment. Accordingly, we assumed, without deciding, that the misdemeanants there" }, { "docid": "18089170", "title": "", "text": "from Heller a “two-pronged approach to Second Amendment challenges” to firearm restrictions. 614 F.3d at 89. We first consider “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” Id. If not, the challenged law must stand. But if the law burdens protected conduct, the proper course is to “evaluate the law under some form of means-end scrutiny,” id. that form in Marzzarella being intermediate scrutiny, id. at 97. “If the law passes muster under [the] standard [applied], it is constitutional. If it fails, it is invalid.” Id. at 89. As to § 922(k), we held that the law withstood intermediate scrutiny “even if it burden[ed] protected conduct” by fitting reasonably with the important “law enforcement interest in enabling the tracing of weapons via their serial numbers.” Id. at 95, 98. (We also noted in a dictum that the law would survive strict scrutiny, were that the test, because the provision serves a compelling interest through the least-restrictive means. Id. at 99-lba.) Nearly every court of appeals has cited Marzzarella favorably. See, e.g., N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 254 n.49 (2d Cir. 2015); Chovan, 735 F.3d at 1136-37; Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194-96 (5th Cir. 2012); GeorgiaCarry.org, Inc., v. Georgia, 687 F.3d 1244, 1260 n.34 (11th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller, 670 F.3d at 1252-53; Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir. 2011); Chester, 628 F.3d at 680-83; Reese, 627 F.3d at 800-05. Indeed, it has escaped disparagement by any circuit court. A year after Marzzarella we decided Barton, which involved a felon convicted under the provision now before us— § 922(g)(1). Barton raised facial and as-applied Second Amendment challenges to the firearm ban. After dispensing with his facial challenge and confirming the availability of as-applied challenges under the Second Amendment, we ruled that “the common law right to keep and bear arms did not extend to those who" }, { "docid": "12792151", "title": "", "text": "United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (citing United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)); see also N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 254 (2d Cir. 2015); GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788 F.3d 1318, 1322 (11th Cir. 2015); United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); Nat'l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011) (“Hel ler II”); Ezell v. City of Chicago, 651 F.3d 684, 703-04 (7th Cir. 2011); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010). Pursuant to that two-part approach, we first ask “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” See Chester, 628 F.3d at 680 (internal quotation marks omitted). If the answer is no, “then the challenged law is valid.” Id. If, however, the challenged law imposes a burden on conduct protected by the Second Amendment, we next “apply[] an appropriate form of means-end scrutiny.” Id. Because “Heller left open the level of scrutiny applicable to review a law that burdens conduct protected under the Second Amendment, other than to indicate that rational-basis review would not apply in this context,” we must “select between strict scrutiny and intermediate scrutiny.” Id. at 682. In pinpointing the applicable standard of review, we may “look[ ] to the First Amendment as a guide.” Id. With respect to a claim made pursuant to the First or the Second Amendment, “the level of scrutiny we apply depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right.” Id. To satisfy strict scrutiny, the government must prove that the challenged law is “narrowly tailored to achieve a compelling governmental interest.” See Abrams v. Johnson, 521 U.S. 74, 82, 117 S.Ct. 1925, 138 L.Ed.2d 285" } ]

[ { "docid": "13524121", "title": "", "text": "F.3d 836 (6th Cir.1994). Although the opinion in Wilson Metal Casket Co. did not address the applicability of the single filing rule to a ease brought under the ADEA, the federal courts to address the issue have uniformly held that the rule is applicable in the ADEA context. Anson v. Univ. of Texas Health Science Ctr., 962 F.2d 539, 541 (5th Cir.1992); see also Anderson v. Montgomery Ward, 852 F.2d 1008, 1014-17 (7th Cir.1988) (discussing the similarities and differences between Title VII and ADEA lawsuits). We join those courts in holding that the single filing rule applies to ADEA cases. It is uncontroversial that the “single filing rule” is not limited to class actions but also can permit a plaintiff to join individual ADEA actions if the named plaintiff filed a timely administrative charge sufficient to permit “piggybacking” by the joining plaintiff. Tolliver, 918 F.2d at 1057. Controversy arises, though, over the test to use in determining whether an administrative charge will suffice to support piggybacking by a subsequent plaintiff. Holiday Inns asserts that “the Circuits uniformly hold that the single filing rule can be invoked only where a timely age discrimination charge notifies the employer and the EEOC that class-wide discrimination is alleged,” while McNeely says an administrative charge will support application of the single filing rule if it “arise[s] out of similar discriminatory treatment in the same time frame.” The reality is more complicated than either party admits. As the Second Circuit summarized in Tolliver, Courts have used different tests, either alone or in combination, for determining whether an administrative charge suffices to permit piggybacking by a subsequent plaintiff. The broadest test requires only that the claims of the administrative claimant and the subsequent plaintiff arise out of the same circumstances and occur within the same general time frame. That is the test we used in Snell [Snell v. Suffolk County, 782 F.2d 1094 (2d Cir.1986) (applying single filing rule in Title VII context) ] in permitting piggybacking by correctional officers alleging discrimination in a county jail. A somewhat narrower test requires that the administrative claim give notice" } ]

[ { "docid": "14191629", "title": "", "text": "scope of the administrative investigation which can reasonably be expected to grow out of the administrative charge of discrimination.”). There was no EEOC investigation in this case. Hoffman argues that any investigation of her claims would have invariably uncovered the alleged class-based pervasive hostile work environment. In this regard, Hoffman relies upon Hicks and its progeny which have held that the scope of an EEOC charge includes any claims that would arise from a reasonable investigation of the charges. If Hoffman’s argument were accepted, there would be a conflict between Lusardi and Hicks. Hoffman has failed to recognize the significant difference between an “individual” claim against an employer and a “class” claim against an employer. Hicks applies to the former, while Lusardi applies to the latter. Significantly, the Third Circuit recognized in Lusardi that its holding was important not only to ADEA class actions, but also to Title VII class actions. Moreover, Lusardi was decided after Hicks, yet the Third Circuit made no reference to Hicks in its opinion. Furthermore, the fact that a class member must “opt-into” an age discrimination class action, whereas a Title VII class member would be included automatically in a Rule 23(b)(3) class action and would have to “opt-out,” does not afford a sound basis for applying a more stringent administrative charge requirement in the ADEA context. Under both the ADEA and Title VTI, the filing of an administrative charge is a prerequisite to bringing an action in federal court. The filing of a charge with an equal employment administrative agency serves two important purposes: “First, it serves to notify the charged party of the alleged violation. Second, it gives the EEOC an opportunity for conciliation .... ” Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir.1989). Lusardi and Lockhart recognize the unfairness of subjecting an employer to a class action which was not to be anticipated from the administrative charge. The notice purpose underlies the filing of both ADEA and Title VII charges. It therefore follows that the same rule should be applied to class actions filed under each statute: the administrative" }, { "docid": "14191640", "title": "", "text": "her EEOC charge. Moreover, the court in Jenson was not bound by Lusardi and its progeny in making its determination. . In Lusardi, the Third Circuit did not distinguish between the ''opt-in” mechanism under the ADEA and the rules applicable to Title VII class actions. Indeed, the court stated that the question of whether a charge adequately placed an employer on notice of class-based discrimination was \"important not only to the administration of the ADEA, but also Title VII.” Lusardi, 855 F.2d at 1078. This dicta cuts against Hoffman's claim that the rule set forth in Lusardi was not intended to be applied to Title VII cases. . Only three circuits have considered whether an EEOC charge that fails to allege a class-based discrimination claim may be used to support a Title VII class action. See Paige v. California, 102 F.3d 1035, 1041 (9th Cir. 1996) (\"We have never considered, however, whether a charge not explicitly raising class claims could support a class action. Only two circuits have done so and have reached different results.”). As noted above, the Seventh Circuit has determined that an EEOC charge that fails to allege class-based discrimination may not form the basis of a Title VII class action. Schnellbaecher, 887 F.2d at 127-28. In Fellows v. Universal Restaurants, Inc., 701 F.2d 447 (5th Cir.), cert. denied, 464 U.S. 828, 104 S.Ct. 102, 78 L.Ed.2d 106 (1983), the plaintiff filed a pro se EEOC charge contending that she was paid less and eventually discharged because she was a woman. Id. at 451. The Fifth Circuit stated that \"[t]he scope of Ms. Fellows' judicial complaint could include class action allegations, since EEOC investigation of class discrimination against women could reasonably be expected to grow out of her allegations in her initial EEOC complaint.” Id. In distinguishing Fellows, the Seventh Circuit noted that Fellows’ attorney wrote a letter to the defendant shortly after the filing of the EEOC charge, which provided that if settlement in the EEOC conciliation process could not be obtained, then a class action lawsuit would be filed. Schnell-baecher, 887 F.2d at 128. The" }, { "docid": "819477", "title": "", "text": "engage in specified discriminatory practices against past, present and future employees “such as” the named plaintiff, and referred to this group as class. Lusardi, 855 F.2d at 1078. Kaplan’s allegation that ten of the fourteen employees terminated from the marketing department in which he worked were within the protected age group does not suffice to place defendants on notice of class claims in the face of his repeated references to his own performance, his own termination and the discrimination he personally suffered. Because plaintiffs failed to notify defendants of their potential class claims in their EEOC charges, the Court will deny plaintiffs’ request to pro ceed as a collective action on their age discrimination claims. Additionally, defendants contend that plaintiffs lack standing to assert even their own Title VII claims for race and national origin discrimination, as well as their claims arising out of employment events other than their terminations, on the ground that plaintiffs failed to raise them in their EEOC charges. In Sandom v. Travelers Mortgage Services, Inc., 752 F.Supp. 1240, 1246-47 (D.N.J.1990) (citations omitted), the Court stated: The parameters of the civil action in the district court are defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. Thus, a subsequent civil action may only encompass forms of discrimination similar or related to those filed in the EEOC charge. The EEOC need not actually have investigated the plaintiffs claim; an action may be pursued for claims which would have been within the scope of a reasonable EEOC investigation if it had occurred. Nixon v. Runyon, 856 F.Supp. 977, 987 (E.D.Pa.1994), citing Hicks v. ABT Assocs., Inc., 572 F.2d 960, 966-67 (3d Cir.1978), Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977). The Sandom Court dismissed a sexual harassment claim which had not been raised in the plaintiffs EEOC charge of sex discrimination, finding that the harassment claim would “most likely not have arisen out of a reasonable EEOC investigation of the filed" }, { "docid": "14191631", "title": "", "text": "charge must fairly apprise the employer of whether it is facing an individual claim or a class claim. Hoffman does not cite any case which holds that a different standard should be applied to Title VII actions than to ADEA cases. Moreover, Hoffman incorrectly contends that I relied solely upon ADEA cases in making my determination. I also relied upon Schnellbaecher, supra. In that case, two plaintiffs attempted to bring a Title VII class -action. The plaintiffs had filed pro se EEOC charges alleging that a less-qualified male had been' hired for a position for which they both had applied. Id. at 125. The charges alleged that they were told “that a woman is to make less than a man because a woman does not have to support a family.” I'd. The EEOC sent to the defendant a questionnaire which sought salary information as well as an explanation for any ' discrepancy between the pay of any male and. female salespersons. Id. at 126. On the day after this questionnaire was served on the defendant, the EEOC issued a right-to-sue letter. Id. The plaintiffs then filed a Title VII class-based discrimination action. The district court dismissed the class-based allegations in their complaint because the EEOC .charge contained no specific allegations of class-based discrimination. Id. at 127.' In affirming this determination, the Seventh Circuit stated: [We have] observed that “allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC’s investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge.” In other words, the reason behind the requirement that allegations not contained in an EEOC charge cannot be contained in the complaint is that the defendant must have notice of the charge, and the EEOC must have the opportunity to investigate and conciliate the charge, in order to attempt to obtain voluntary compliance with Title VII. Id. at 127 (citation omitted). The Seventh Circuit, citing the Third Circuit’s decision in Hicks, recognized the rule that" }, { "docid": "14191635", "title": "", "text": "the facts that may have been revealed in a hypothetical EEOC investigation takes Hicks too far and essentially abrogates Lusardi Lock-hart and Whalen, all of which emphasized the importance of fairly apprising the employer of the extent of potential liability. As explained in Kloos v. Carter-Day Co., 799 F.2d 397, 400 (8th Cir.1986), “[allowing class actions without administrative charges that fairly anticipate class claims would undermine the notice and conciliation purposes of the filing requirement.” The contention that Lusardi and its progeny are inapplicable because they involved ADEA claims, as opposed to Title VII claims, is without merit. As noted, Lusardi declared that its holding was important to Title VII class actions, as well as ADEA class actions. Moreover, the Seventh Circuit has applied similar reasoning to Title VII class action claims. In short, Hoffman has failed to demonstrate a clear error of law in the February 1, 1999 decision. Therefore, Hoffman’s motion for reconsideration will be denied. HI. CONCLUSION ■■ For the foregoing reasons, Hoffman’s motion for reconsideration will be denied. .Because the statute of limitations had been running on Connie Bailey's claims, Connie Bailey filed a separate complaint. Hoffman then moved to amend her complaint to include Bailey and to name as defendants the same entities and individuals named in Bailey's complaint. As noted by Hoffman: After Connie Bailey obtained her right-to-sue letter from the Equal Employment Opportunity Commission, she sought to be added as a plaintiff in Hoffman. If leave had been granted, all of Hoffman's and Bailey’s claims would have been stated jointly. Bailey reluctantly filed a separate action only because her 90-day deadline for filing an action after receipt of a right to sue letter was about to expire. However, from the time of the initial complaints in Bailey until the present, plaintiffs have intended the complaints in the two actions to be similar or identical, except in describing the experiences of each woman. (Pi's Supp. Br. for 3d Motion to Amend (Dkt. Entry 61) at 3-4.) Hoffman withdrew her motion to file a third amended complaint. (Dkt. Entry 87.) Bailey, however, has moved to" }, { "docid": "22950601", "title": "", "text": "discrimination, the unions also violated the duty to enforce the collective bargaining agreement. See Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81 (3d Cir.1982). The deliberate choice not to process grievances also violated § 703(c)(1) of Title VII because it discriminated against the victims who were entitled to representation. The district court’s finding of intentional discrimination properly supports the claims under § 1981 as well. We therefore find no error in the district court’s assessment of liability against the unions. IV. STATUTE OF LIMITATIONS AS TO THE TITLE VII CLAIMS AGAINST THE UNIONS Plaintiff Hicks filed charges against Lukens before the Pennsylvania Human Rights Commission on December 2, 1971. The unions were not named in that complaint. On January 28, 1972, however, Hicks along with named plaintiffs Goodman, Meeks, and Middleton filed broad charges of discrimination against Lukens, the International Union, and Local 1165 with the EEOC. The Commission deferred these charges to the Pennsylvania Human Relations Commission on February 16, 1972, and filed them on May 7, 1972. Local 2295 was first named in an amended charge filed by plaintiff Meeks on June 13, 1972. Because the statute allows the state agency sixty days to dispose of a claim, 42 U.S.C. § 2000e-5(c), the earliest that Hicks’ original charge could be considered filed with the EEOC was January 31, 1972. Based on that date, the district court found that the limitation period for Title VII claims against the unions began on April 6, 1971. That determination is correct only if the initial filing in the state Commission against Lukens is construed to include claims against the unions as well. In Ostapowicz v. Johnson Bronze Co., 541 F.2d 394 (3d Cir.1976), we held that the scope of a Title VII action is defined by the limits of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. That case, however, involved only one defendant, and we did not hold that the scope of the investigation could include unnamed parties. Glus v. G.C. Murphy Co., 629 F.2d 248 (3d Cir.1980), held that charges against" }, { "docid": "14191628", "title": "", "text": "individual discrimination action is “ ‘defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.’ ” Hicks v. ABT Assocs., Inc., 572 F.2d 960, 966 (3d Cir. 1978) (quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977)); see also Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir.1996) (finding that a district court has jurisdiction over additional claims if “the acts alleged in the subsequent Title VII suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom”); Ebert v. Office of Information Systems, No. 97-530, 1998 WL 324923, at *4 (D.Del. June 12, 1998); Lesko v. Clark Publisher Servs., 904 F.Supp. 415, 418 (M.D.Pa.1995) (“Courts have also held that a Title VII plaintiff can raise claims in the district court which are ‘like or related to’ allegations in the administrative complaint. Some courts have treated this doctrine as essentially coextensive with the scope of the administrative investigation which can reasonably be expected to grow out of the administrative charge of discrimination.”). There was no EEOC investigation in this case. Hoffman argues that any investigation of her claims would have invariably uncovered the alleged class-based pervasive hostile work environment. In this regard, Hoffman relies upon Hicks and its progeny which have held that the scope of an EEOC charge includes any claims that would arise from a reasonable investigation of the charges. If Hoffman’s argument were accepted, there would be a conflict between Lusardi and Hicks. Hoffman has failed to recognize the significant difference between an “individual” claim against an employer and a “class” claim against an employer. Hicks applies to the former, while Lusardi applies to the latter. Significantly, the Third Circuit recognized in Lusardi that its holding was important not only to ADEA class actions, but also to Title VII class actions. Moreover, Lusardi was decided after Hicks, yet the Third Circuit made no reference to Hicks in its opinion. Furthermore, the fact that a class" }, { "docid": "819471", "title": "", "text": "1993 reduction-in-force.” (Class Cert.Br. p. 9) Yet again, they appear to limit the class to those employees terminated in the December 13, 1993 RIF. (Class Cert.Reply Br. p. 7) Plaintiffs assert that common issues of fact include “the ages of the employees selected for termination by MECA, the employment-related policies of MECA, the employment-related practices of MECA and MECA's manner of selection of MECA employees for termination.” (Id. at pp. 9-10) The common issues of law, they contend, “relate to whether the common facts result in disparate impact or disparate treatment.” (Id. at p. 10) Defendants’ first line of attack on plaintiffs’ motion to proceed collectively is that the scope of the present action is limited by the Charges of Discrimination (“EEOC charges”) each named plaintiff filed with the EEOC pursuant to 29 C.F.R. §§ 1601 et seq. According to defendants, neither the proposed class representatives nor the other two named plaintiffs in this action raised class or group claims in their EEOC charges, nor did they claim that any of the defendants discriminated against them on any basis other than age, or that defendants’ conduct violated Title VII, or that defendants took any adverse employment action against them other than termination. If none of the named plaintiffs have filed an EEOC charge which alleged, or at least put defendants on notice of, class-wide discrimination charges, they may not proceed with their class claims before this Court. In Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 53 (3d Cir.1989), overruled on other grounds as recognized by Antol v. Perry, 82 F.3d 1291, 1301 (3d Cir.1996), the Court refused to allow joinder of new plaintiffs who had not filed timely EEOC charges where the named plaintiffs’ EEOC charges had not alleged class claims. See also Lusardi v. Lechner, 855 F.2d 1062, 1077-1078 (3d Cir. 1988) (emphasis added) (citations omitted) (adopting majority view that “individual filings are not a prerequisite to ‘opting into’ a class action, so long as a representative complaint was filed with the EEOC within the 180/300 day time limit ... [because] a representative complaint meets the purpose of" }, { "docid": "14191639", "title": "", "text": "brought. . In support of her motion for class certification, Hoffman relied heavily upon Jenson v. Eveleth Taconite Co., 139 F.R.D. 657 (D.Minn. 1991). In that case, the first EEOC charge was filed by Jensen pro se in 1984. Subsequent charges alleging class-based discrimination were filed in 1988. The defendant alleged that the class period should be 300 days prior to the 1988 class-based EEOC charge of discrimination, as opposed to 300 days prior to.the 1984 EEOC charge that alleged only individual discrimination. The court refused to limit the class in such a manner. Noting that because the 1984 charge was filed pro se it was entitled to be interpreted liberally and that an EEOC charge may be as broad as the EEOC investigation which could reasonably be expected to grow from the charge, the court found that the class period would run from the 1984 charge. The court failed to provide any detailed analysis of the 1984 charge. Significantly, I found that Jenson was distinguishable because Hoffman was represented by counsel when she filed her EEOC charge. Moreover, the court in Jenson was not bound by Lusardi and its progeny in making its determination. . In Lusardi, the Third Circuit did not distinguish between the ''opt-in” mechanism under the ADEA and the rules applicable to Title VII class actions. Indeed, the court stated that the question of whether a charge adequately placed an employer on notice of class-based discrimination was \"important not only to the administration of the ADEA, but also Title VII.” Lusardi, 855 F.2d at 1078. This dicta cuts against Hoffman's claim that the rule set forth in Lusardi was not intended to be applied to Title VII cases. . Only three circuits have considered whether an EEOC charge that fails to allege a class-based discrimination claim may be used to support a Title VII class action. See Paige v. California, 102 F.3d 1035, 1041 (9th Cir. 1996) (\"We have never considered, however, whether a charge not explicitly raising class claims could support a class action. Only two circuits have done so and have reached different results.”)." }, { "docid": "14191630", "title": "", "text": "member must “opt-into” an age discrimination class action, whereas a Title VII class member would be included automatically in a Rule 23(b)(3) class action and would have to “opt-out,” does not afford a sound basis for applying a more stringent administrative charge requirement in the ADEA context. Under both the ADEA and Title VTI, the filing of an administrative charge is a prerequisite to bringing an action in federal court. The filing of a charge with an equal employment administrative agency serves two important purposes: “First, it serves to notify the charged party of the alleged violation. Second, it gives the EEOC an opportunity for conciliation .... ” Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir.1989). Lusardi and Lockhart recognize the unfairness of subjecting an employer to a class action which was not to be anticipated from the administrative charge. The notice purpose underlies the filing of both ADEA and Title VII charges. It therefore follows that the same rule should be applied to class actions filed under each statute: the administrative charge must fairly apprise the employer of whether it is facing an individual claim or a class claim. Hoffman does not cite any case which holds that a different standard should be applied to Title VII actions than to ADEA cases. Moreover, Hoffman incorrectly contends that I relied solely upon ADEA cases in making my determination. I also relied upon Schnellbaecher, supra. In that case, two plaintiffs attempted to bring a Title VII class -action. The plaintiffs had filed pro se EEOC charges alleging that a less-qualified male had been' hired for a position for which they both had applied. Id. at 125. The charges alleged that they were told “that a woman is to make less than a man because a woman does not have to support a family.” I'd. The EEOC sent to the defendant a questionnaire which sought salary information as well as an explanation for any ' discrepancy between the pay of any male and. female salespersons. Id. at 126. On the day after this questionnaire was served on the defendant," }, { "docid": "15098404", "title": "", "text": "fairly indicates she was permissibly expanding the scope of her former complaint (and not just adding subsequent claims by other plaintiffs, as the state agency interpreted it), this Court should accept the amended charge. The lack of apparent prejudice on the part of the bank provides further support for expanding the scope of the civil action beyond that of the SDHR investigation. See, e.g., Fesel v. Mason Home of Delaware, Inc., 428 F.Supp. 573, 576-77 (D.Del.1977); Hicks, supra, 572 F.2d at 966. The bank was aware of the contents of Poggi’s May 1988 amendment shortly after it was filed. Moreover, the filing of plaintiff’s class action section 1981 suit clearly put defendant on notice of the class-wide nature of the allegations. Finally, the fact that the bank in July 1988 stipulated to have the SDHR suspend its investigation into both of Poggi’s charges due to the pendency of the federal action clearly indicates that neither party was interested in the sort of investigation and conciliation the filing process is intended to foster. Stewart v. United States I.N.S., 762 F.2d 193, 198 (2d Cir.1985). 2. Does the Amended Charge Support the Title VII Suit? The bank next asserts that, even if the Court accepts Poggi’s agency charge as amended, the amended complaint does not support all the claims subsequently made in the title VII suit. Title VII claims that have not been presented to or investigated by an administrative agency and that are not within the scope of the EEOC investigation which reasonably could be expected to grow out of the administrative charge are properly subject to dismissal for lack of subject matter jurisdiction. See, e.g., Grant v. Morgan Guaranty Trust Co. of New York, 548 F.Supp. 1189, 1191 (S.D.N.Y.1982). In this Circuit it is now established that district courts may assume jurisdiction over any claim “reasonably related” to a charge filed with the EEOC, including incidents occurring after the filing of the EEOC claim. Stewart v. United States I.N.S., 762 F.2d 193, 198 (2d Cir.1985); Almendral v. New York State Office of Mental Health, 743 F.2d 963, 967 (2d Cir.1984)." }, { "docid": "14191618", "title": "", "text": "in relation to the facts presented in Lusardi, Lockhart and Kresefky v. Panasonic Communications & Sys. Co., 169 F.R.D. 54, 59 (D.N.J.1996). After this review, I determined that Hoffman’s EEOC charge provided Ramada with notice of Hoffman’s individual claims of discriminatory treatment, .not that she intended to file a class claim for such discriminatory treatment. In 'Lusardi, the plaintiffs, four former Xerox employees, filed a claim for age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § '621 et seq.' In particular, one of the plaintiffs EEOC charges provided: Xerox has engaged and is continuing to engage in employment practices related to hiring, training, promotion, and termination of past, present and future employees which discriminates against persons such as myself over forty as a class particularly with respect to the implementation of a reduction in salaried work force. Lusardi, 855 F.2d at 1078 (emphasis added). Based upon this EEOC charge, the plaintiffs sought to maintain a class action. Id. The Third Circuit held that class members who have not exhausted administrative remedies may rely upon a representative’s timely charge if that charge provided notice of class discrimination. Id. at 1077. The court noted that none of the four EEOC charges were\" expressly filed “on behalf of those similarly situated.” Id. at 1078. The precise issue addressed by the court was whether a class action could be brought where the EEOC charge failed to assert explicitly a class claim. The court recognized that this question was “important not only to the administration of the ADEA, but also to Title VII.” Id. After reviewing the EEOC charge, with its specific allegation of class discrimination, the court determined that the plaintiffs could maintain a class action. In Lockhart, the court reaffirmed its holding in Lusardi that “plaintiffs who had not filed charges with the EEOC could opt into an ADEA class action suit only if the original complainant’s charge gave the employer notice of class-based discrimination.” Lockhart, 879 F.2d at 52-53 (emphasis added); see also Whalen, 56 F.3d at 506 (“In Lusardi, we held that an individual EEOC filing is" }, { "docid": "14191619", "title": "", "text": "may rely upon a representative’s timely charge if that charge provided notice of class discrimination. Id. at 1077. The court noted that none of the four EEOC charges were\" expressly filed “on behalf of those similarly situated.” Id. at 1078. The precise issue addressed by the court was whether a class action could be brought where the EEOC charge failed to assert explicitly a class claim. The court recognized that this question was “important not only to the administration of the ADEA, but also to Title VII.” Id. After reviewing the EEOC charge, with its specific allegation of class discrimination, the court determined that the plaintiffs could maintain a class action. In Lockhart, the court reaffirmed its holding in Lusardi that “plaintiffs who had not filed charges with the EEOC could opt into an ADEA class action suit only if the original complainant’s charge gave the employer notice of class-based discrimination.” Lockhart, 879 F.2d at 52-53 (emphasis added); see also Whalen, 56 F.3d at 506 (“In Lusardi, we held that an individual EEOC filing is not a prerequisite to opting into a § 16(b) action where the representative plaintiff has filed a timely charge with the EEOC that gives the employer notice that class-wide discrimination is alleged.”). Because the proposed class representative’s EEOC charge had contained only references to individual acts of age discrimination, without any reference to class-based age discrimination, the court found that the defendant had not been provided with notice of the alleged class-based discrimination before the EEOC. Id. at 53. Therefore, the class claim was not allowed. In my February 1, 1999 oral ruling, I considered both Lusardi and Lockhart: The Court of Appeals [in Lusardi ], with sound reason, found that that charge clearly notified Xerox that it allegedly discriminated against persons over 40-years-old, as a class, and accordingly found that the charge provided sufficient notice to the parties to encourage meaningful conciliation, the purpose of requiring it. And that, to me, is the' touchstone of all of these cases that talk about whether the allegation of the administrative complaint is sufficient to allow a" }, { "docid": "22109069", "title": "", "text": "that are like the discrimination described in the EEOC charges, as well as claims that may reasonably be expected to grow out of the allegations in the EEOC charge during a reasonable investigation by the EEOC. We can find no error in this charge, and conclude that it adequately stated the correct law. The starting point of ascertaining the permissible scope of a judicial complaint alleging employment discrimination is the administrative charge and investigation. See Griffin v. Carlin, 755 F.2d 1516, 1522 (11th Cir.1985). No action alleging a violation of Title VII may be brought unless the alleged discrimination has been made the subject of a timely-filed EEOC charge. See generally 42 U.S.C. § 2000e-5. EEOC regulations provide that charges should contain, among other things, “[a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.” 29 C.F.R. § 1601.12(a)(3). A “plaintiffs judicial complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Mulhall v. Advance Security, Inc., 19 F.3d 586, 589 n. 8 (11th Cir.1994) (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970)). Defendants contend that many of Plaintiffs’ Title VII claims were not related to the allegations of discrimination raised in their EEOC charges. We are not persuaded. We observe at the outset that in class actions brought under Title VII, which this case was before it was decerti-fied after the jury had returned its verdict, it is not necessary for all class members to have filed EEOC charges or to have received notices of the right to sue in order to be represented by the class. See Griffin v. Dugger, 823 F.2d 1476, 1492 (11th Cir.1987) (citing Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498-99 (5th Cir.1968)). As long as one named plaintiff timely files an EEOC charge, “the precondition to a Title VII action is met for all other named Plaintiffs and class members,” id. (citing Oatis, 398 F.2d at 498-99), and under the so-called “single-filing rule,” if one plaintiff, in a" }, { "docid": "14191632", "title": "", "text": "the EEOC issued a right-to-sue letter. Id. The plaintiffs then filed a Title VII class-based discrimination action. The district court dismissed the class-based allegations in their complaint because the EEOC .charge contained no specific allegations of class-based discrimination. Id. at 127.' In affirming this determination, the Seventh Circuit stated: [We have] observed that “allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC’s investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge.” In other words, the reason behind the requirement that allegations not contained in an EEOC charge cannot be contained in the complaint is that the defendant must have notice of the charge, and the EEOC must have the opportunity to investigate and conciliate the charge, in order to attempt to obtain voluntary compliance with Title VII. Id. at 127 (citation omitted). The Seventh Circuit, citing the Third Circuit’s decision in Hicks, recognized the rule that the scope of an EEOC charge includes those claims which would have arisen from a reasonable EEOC investigation. Id. Although the “reasonable investigation” standard assists in defining the scope of the charge, the court emphasized that “it is primarily the charge to which we look in determining whether the scope requirement is satisfied.” Id, The court determined that neither the EEOC charge nor the EEOC investigation placed the defendant on notice of class-based allegations of discrimination. Id. at 127-28. In this case, I found that Hoffman’s EEOC charge encompassed only Hoffman’s individual claims. Moreover, Hoffman’s charge was not filed pro se, but had been filed by an attorney acting on her behalf. Although there were allegations concerning a hostile work environment, Hoffman’s counsel conceded during oral argument that a hostile work environment claim is not by definition a class-based allegation. (Tr. Feb. 1, 1999 Oral Arg. (Dkt. Entry 107) at 17.) Furthermore, the mere fact that Hoffman indicated that another employee had been discriminated against is insufficient,to place. Ramada on notice of class-based discrimination. See" }, { "docid": "14191626", "title": "", "text": "In this case, the complaint does not come — does not fall within the parameters of those that have been regarded as adequate to provide notice. It certainly is not of the type of claim that was made in the Lusardi case, where there was a mention of a class basis for the claim and employment practices, things of that nature. So it is certainly distinguishable from Lusardi. While it is a little more than was found in Lockhart, I think it is more close to the decision of the District of New Jersey, in the Kresefky case than it is to the decision of Judge Rosen-baum, in the Jenson case. And again, as I said, I think the test is, What kind of conciliation would come from the claim being made and the claim being made in that case — in this case, in the Hoffman case, was clearly an individual case. (Tr. Oral Arg. (Dkt. 'Entry 107) at 54-55.) Hoffman contends that reliance upon Lusardi, Lockhart and Kresefky was improper as those cases involved attempts to assert a class action under the ADEA, not a Title VII class action. Hoffman contends that an individual allegation of discrimination would not necessarily place an employer on notice of a potential class claim under the ADEA because the ADEA requires an “opt-in mechanism.” (Pi’s Supp. Br. (Dkt. Entry 89) at 4.) Hoffman contends that this “opt-in mechanism” requires that an employer be notified during the conciliation process of any potential class-based claims. (Id.) Thus, Hoffman argues that an EEOC charge asserting claims of individual discrimination under the ADEA “would not necessarily tell the employer who else might be ‘similarly situated’ or who else could ‘opt-in’ to the case.” (Id.) Hoffman asserts that under the ease law applicable to Title VII claims, her EEOC charge provided Ramada with adequate notice of her class-based discrimination claim. (Id.) Specifically, Hoffman argues that her class-based discrimination claim was within the “scope” of her EEOC charge of a hostile work environment. Regardless of the extent to which the EEOC investigates a claim, the scope of an" }, { "docid": "14191627", "title": "", "text": "involved attempts to assert a class action under the ADEA, not a Title VII class action. Hoffman contends that an individual allegation of discrimination would not necessarily place an employer on notice of a potential class claim under the ADEA because the ADEA requires an “opt-in mechanism.” (Pi’s Supp. Br. (Dkt. Entry 89) at 4.) Hoffman contends that this “opt-in mechanism” requires that an employer be notified during the conciliation process of any potential class-based claims. (Id.) Thus, Hoffman argues that an EEOC charge asserting claims of individual discrimination under the ADEA “would not necessarily tell the employer who else might be ‘similarly situated’ or who else could ‘opt-in’ to the case.” (Id.) Hoffman asserts that under the ease law applicable to Title VII claims, her EEOC charge provided Ramada with adequate notice of her class-based discrimination claim. (Id.) Specifically, Hoffman argues that her class-based discrimination claim was within the “scope” of her EEOC charge of a hostile work environment. Regardless of the extent to which the EEOC investigates a claim, the scope of an individual discrimination action is “ ‘defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.’ ” Hicks v. ABT Assocs., Inc., 572 F.2d 960, 966 (3d Cir. 1978) (quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977)); see also Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir.1996) (finding that a district court has jurisdiction over additional claims if “the acts alleged in the subsequent Title VII suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom”); Ebert v. Office of Information Systems, No. 97-530, 1998 WL 324923, at *4 (D.Del. June 12, 1998); Lesko v. Clark Publisher Servs., 904 F.Supp. 415, 418 (M.D.Pa.1995) (“Courts have also held that a Title VII plaintiff can raise claims in the district court which are ‘like or related to’ allegations in the administrative complaint. Some courts have treated this doctrine as essentially coextensive with the" }, { "docid": "9601264", "title": "", "text": "Gamble we pointed out that the underlying policies of the Title VII Equal Employment Opportunity Act are not served by limiting judicial relief to technical niceties of the language used by an often unlettered or unsophisticated employee in filing his or her initial grievance with the EEOC. In Gamble, quoting with approval from a district court opinion, we stated [T]he Civil Rights Act is designed to protect those who are least able to protect themselves. Complainants to the EEOC are seldom [represented by] lawyers. To compel the charging party to specifically articulate in a charge filed with the Commission the full panoply of discrimination which he may have suffered may cause the very persons Title VII was designed to protect to lose that protection because they are ignorant of or unable to thoroughly describe the discriminatory practices to which they are subjected. 514 F.2d at 689. Sanchez and Gamble, then, are authority for holding that a cause of action for Title VII employment discrimination may be based, not only upon the specific complaints made by the employee’s initial EEOC charge, but also upon any kind of discrimination like or related to the charge’s allegations, limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination. Other circuits apply a similar test. Hicks v. ABT Associates, Inc., 572 F.2d 960, 966 (3d Cir.1978); McBride v. Delta Airlines, Inc., 551 F.2d 113, 115 (6th Cir.) vacated on other grounds, sub nom. Delta Airlines, Inc. v. McBride, 434 U.S. 916, 98 S.Ct. 387, 54 L.Ed.2d 273 (1977). EEOC Complaint as to Individual Discrimination: Basis tor Class Action? The defendant Universal would distinguish Sanchez and Gamble, insofar as applying to the present facts, because Gamble’s initial EEOC charge included class complaints (although not all of those additionally allowed to be sued upon) and because, it is suggested (it is not clear from the opinion), Sanchez by actual EEOC investigation subsequent to the initial charge extended its investigation of the individual’s charge to include class discrimination. As we appreciate Universal’s argument, it does" }, { "docid": "1281846", "title": "", "text": "that the filing of a class action raising the same issues as the present action would have tolled the statute of limitations for the purposes of this action. See American Pipe and Construction Co. v. Utah, 414 U.S. 538,94 S.Ct. 756, 38 L.Ed.2d 713 (1974). However, the plaintiffs are not relying on the class action as the tolling mechanism, since by the time the Love suit was filed in 1969, the Title VII claims of the present class members were already tolled by Croker’s EEOC charges. Rather, the plaintiffs contend that the Title VII claims were tolled on February 4,1967, when Love filed his charges with the EEOC. I have found no cases dealing with the tolling effect of EEOC charges filed prior to those of the representative plaintiffs. The plaintiffs’ position seems logical, since it is inconsistent to rule that Love’s EEOC charges tolled the statute of limitations for his class action, but did not toll the statute of limitations for other purposes. On the other hand, given the protracted nature of most EEOC proceedings, acceptance of the plaintiffs’ position might have the practical effect of eliminating a statute of limitations under Title VII, at least for large corporations, since filing of discrimination charges by a different employee every few years would keep the statute tolled perpetually. However, I need not resolve this difficult issue because the plaintiffs’ tolling argument is defective on another ground. While the plaintiffs have submitted to the Court a copy of the complaint in the Love case, they have not provided the Court with a copy of Love’s charges filed with the EEOC. Whether Love’s administrative charges operated to toll other Title VII claims depends primarily on the nature of those charges. Just as the scope of a Title VII suit is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination, Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970), so the tolling effect of an EEOC charge must be limited. Although Love’s court complaint contains some general allegations" }, { "docid": "14191634", "title": "", "text": "Maclin v. Northern Telecom, Inc., No. 95-7485, 1996 WL 495558, at *3 (N.D.Ill. Aug. 28, 1996). Hoffman argues that a reasonable EEOC investigation would have uncovered the class-based discriminátion. Unlike the circumstances presented when considering the EEOC charge of an individual employee, Hicks is difficult to apply when an individual discrimination claim is to be transmuted into a class action.' As stated in Schnellbaecher, “it is primarily the charge” that must provide the notice to the employer of the scope of its potential liability, not the results of a hypothetical investigation. Ramada was clearly on notice that Hoffman believed that she had been discriminated against in her employment. Ramada would be provided with the opportunity at conciliation on Hoffman’s claims disclosed by a reasonable investigation through the EEOC administrative proceedings. Ramada’s notice of Hoffman’s individual claims, however, fails to rise to the level of notice of a class-based discrimination claim. Hoffman’s EEOC charge, drafted and submitted by counsel, contains no reference to a class-based discrimination claim. To premise notice of a class-based discrimination claim upon the facts that may have been revealed in a hypothetical EEOC investigation takes Hicks too far and essentially abrogates Lusardi Lock-hart and Whalen, all of which emphasized the importance of fairly apprising the employer of the extent of potential liability. As explained in Kloos v. Carter-Day Co., 799 F.2d 397, 400 (8th Cir.1986), “[allowing class actions without administrative charges that fairly anticipate class claims would undermine the notice and conciliation purposes of the filing requirement.” The contention that Lusardi and its progeny are inapplicable because they involved ADEA claims, as opposed to Title VII claims, is without merit. As noted, Lusardi declared that its holding was important to Title VII class actions, as well as ADEA class actions. Moreover, the Seventh Circuit has applied similar reasoning to Title VII class action claims. In short, Hoffman has failed to demonstrate a clear error of law in the February 1, 1999 decision. Therefore, Hoffman’s motion for reconsideration will be denied. HI. CONCLUSION ■■ For the foregoing reasons, Hoffman’s motion for reconsideration will be denied. .Because the statute" } ]

[ { "docid": "22267419", "title": "", "text": "insistent in its demand for some form of union security during its negotiations with the respondent, the preponderance of the credible evidence does not support the respondent’s position that the Union had, in effect, presented an ultimatum that no contract would be consummated which did not afford union security. As has already been indicated, union security was only one of several matters, aside from the wage question, upon which agreement had not yet been reached. If, as the respondent contends, it had left no doubt as to its position on the issue of union security in ihe conferences of October 17 and 18, and it was convinced that the Union was adamant on this issue, it seems unlikely that the parties would have conferred on November 7 and 8, and again on December 19, when the Union submitted a written wage proposal. “It is clear, therefore, and the undersigned finds, that, although the parties had reached a temporary impasse on December 19 on some issues, principally wages, union security, and check-off, there is no substantial basis for concluding that the Union had abandoned negotiations at this time. • Moreover, even if the parties had reached an impasse in their negotiations, this obviously could not affect the Union’s status as majority representative. The principle that 'a bargaining relationship once rightly established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed,’, is well-established. Equally clear is the proposition that the granting of a unilateral wage increase or other concession by an employer to his employees while the designated union is attempting to bargain concerning the same subject matter, constitutes a violation of the employer’s duty to bargain with the union. It is not a question; contrary to the respondent’s argument) of giving the Union credit for a wage increase which it did not obtain, but rather of the conduct of the respondent in granting the increase in derogation of the Union’s status as statutory representative, by depriving the Union of its right to bargain with respect to such increase." } ]

[ { "docid": "4350797", "title": "", "text": "the parties gave the appearance of being deadlocked on the jurisdiction-unit issue. The union felt that unless the employees were assured the exclusive right to perform unit work, the other terms of the collective bargaining agreement, including the wage scale, “wouldn’t mean a thing.” Trial Examiner’s Decision, Appendix, at 20. By the ninth and final pre-strike meeting between the parties, the company agreed to include the existing jurisdiction-unit clause as long as it was limited to “hot metal employees,” a limited concession in view of the fact that the newspaper was changing almost exclusively to a cold type process. The union rejected this offer. Finally, the company said that it would agree to the continuation of the existing jurisdiction-unit clause if a proviso were added to the effect that anyone could perform the work. The union likewise rejected this proposal on the ground that such a proviso was internally inconsistent With any jurisdiction clause and would completely nullify it. On April 16 the com pany reverted to its original position and demanded that the union agree to eliminate altogether the jurisdiction-unit clause appearing in the previous contract. On various occasions when the contract negotiations were becoming snarled on the jurisdiction-unit issue, the union suggested that the parties move on to consider wages and other matters. Publisher Waters, however, resisted these union efforts to break the deadlock on the jurisdiction-unit issue and maintained that there was no use in discussing “wages or anything else” until the parties first came to agreement on the jurisdiction-unit issue. See Trial Examiner’s Decision, Appendix, at 19. On Máreh 23, Publisher Waters responded to the union’s efforts to discuss wages with the statement that “wages would be a matter solely between him and the individual employee concerned and that he (Waters) alone would decide whether the employee should receive an increase * * Trial Examiner’s Decision, Appendix, at 26. On the evening of March 31, the union’s negotiating team reported to the membership that the company had “made a complete farce out of our negotiations” ; that in consequence no agreement had been reached; that they" }, { "docid": "3523467", "title": "", "text": "involved here is but a continuation of the rule formerly condemned both by the Board and this court. We again sustain the Finding and Order of the Board based upon the condemned practice. This brings us to the unilateral wage changes in the bargaining unit found to be a Section 8(a) (5) and (1) violation. Respondent suggests that a part of the wage change was required by the federally established minimum wage and prompted a good faith wage increase for all bargaining unit employees. This argument seems plausible on its face. But the Board thought, not without justification, that the wage changes instituted as they were during negotiations on that very subject, were suspect of an 8(a) (5) violation. And when considered with the fact that the wage increases were inequitably distributed among the employees in the bargaining unit without regard to merit, a clear violation was shown. Unilateral changes in wages and working conditions during negotiations concerning the same subject matter are clear manifestations of a lack of good faith bargaining and violate Section 8(a) (5). And this is so, even though the employer may have desired to reach an overall agreement. N.L.R.B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230; N.L.R.B. v. United Nuclear Corporation, 381 F.2d 972 (10th Cir.). Unilateral action in matters of this kind can be justified only after the parties have bargained in fact to an impasse. N.L.R.B. v. United Nuclear Corporation, supra. The most then that can be said for respondent’s position is that the unilateral wage changes were instituted after the point of impasse had been reached. Respondent insists that they were so instituted. The Board found to the contrary. And we quite agree. The wage changes were instituted during purported negotiations concerning that very subject. And if respondent was not bargaining in fact, it was not bargaining in good faith. And the violation is clearly manifest. The Board found that respondent contracted bargaining unit work to a third party from April to June, 1967, without notice to or bargaining with the union concerning the work in violation of" }, { "docid": "9359728", "title": "", "text": "the Company that it intended to strike. Recently the Supreme Court in N. L. R. B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962) held that a unilateral wage increase granted to workers during the course of negotiations but before the existence of an impasse and without consultation with the Union constituted a violation of the Company’s duty to bargain in good faith, even in the absence of a Board finding of overall bad faith in the conduct of the negotiations. The Court there stated in a footnote: “Of course, there is no resemblance between this situation and one wherein an employer, after notice and consultation, ‘unilaterally’ institutes a wage increase identical with one which the union has rejected as too low.” See National Labor Relation Board v. Bradley Washfountain Co., 7 Cir., 192 F.2d 144, 150-152; Labor Board v. Landis Tool Co., 3 Cir., 193 F.2d 279. N. L. R. B. v. Katz, supra, at p. 745, n. 12, 82 S.Ct. at p. 1113. That is exactly the case here. The wage increase granted was the same 10% increase offered to the Union in the course of negotiations and the Union was notified of the Company’s intention to put it into effect immediately. The footnote and the cases-apparently cited with approval therein make clear that there is to be no inference from the Company’s unilateral wage increase here. As the Supreme Court on another occasion has stated: “We do not here have a unilateral grant of an increase in pay made by an employer after the same proposal has been made by the employer in the course of collective bargaining but has been left unaccepted or even rejected in those negotiations. Such a grant might well carry no disparagement of the collective bargaining proceedings. Instead of being regarded as an unfair labor practice, it might be welcomed by the bargaining representative, without prejudice to the rest of the negotiations.” N. L. R. B. v. Crompton-Highland Mills, Inc., 337 U.S. 217, 224, 69 S.Ct. 960, 93 L.Ed. 1320 (1949). Nor are the cases cited by the" }, { "docid": "12167663", "title": "", "text": "the consummation of any agreement impossible through its adamant refusal to consider or grant any wage increase or “fringe benefits” demanded by the union. National, however, while conceding that it has consistently, though justifiably, refused to submit to the union’s equally stubborn insistence upon a wage increase and other monetary demands, vigorously protests the validity of the Trial Examiner’s conclusion that, by such refusal, it has refused to bargain in good faith, as well as the Board’s finding that it “approached the conference table with a mind hermetically sealed against reaching agreement.” It insists that the testimony as to its attitude throughout bargaining negotiations, viewed fairly and objectively, reveals that it complied with both the letter and spirit of Section 8(a) (5) by making written proposals, counter-proposals, and numerous concessions to union demands, particularly as to seniority, grievance procedure, holiday and reporting pay, etc., but that the impasse in negotiations which precipitated the union’s economic strike on August 16th was caused solely by the union’s unyielding insistence upon a wage increase, which good faith bargaining could not compel National to grant, particularly in view of the undisputed fact that it could not obtain a commensurate increase on the price of its products because of OPS ceiling prices then in effect. We think the findings of respondent National’s refusal to bargain in good faith may not be sustained upon this record. Though admittedly there were contributing irritations, we think the major portion of the testimony, including that of a union negotiator, reveals substantially nothing more than a bona fide impasse and economic strike resulting principally from respondent National’s refusal to grant any wage increase and the union’s refusal to accept anything less. True, the Board found that “National’s failure to accept * * * the Union’s proposal of a contingent wage increase” to some extent objectively revealed that the ceiling price on National’s products “was not the true reason for its unyielding position on wages, and that in advancing that reason Na tional was not dealing with the Union in good faith.” However, it seems to us the Board’s inference in" }, { "docid": "11377674", "title": "", "text": "and eventually offered an increase to less than that embodied in the amendment to the federal wage and hour law, then being debated in Congress. [The statement that the Company admitted its minimum rate was substantially lower than comparable rates is strongly contested by the Company. The proposed increase was a minimum of 90 cents per hour, which was the minimum actually enacted months later]. “8. Notwithstanding substantial concessions by the Union in the course of the negotiations, the Company characterized the Union’s second proposal as ‘about the same’ as its first one, and the Union’s third proposal as ‘not substantially different’. Such a denial of the realities of the Union’s efforts to compromise differences hardly comports with a good faith desire to bargain. “9. Granting little beyond such bare requirements as a provision against discrimination, the .Company took the attitude, expressed by its chief negotiator, that ‘we are giving the contract, and that is something.’ This attitude, we submit falls far short of what this Court has described as ‘a duty * * * to enter into discussion with an open and fair mind, and a sincere purpose to find a basis of agreement touching wages and hours and conditions of employment, and if found to embody it in a contract as specific as possible * * * ’ Globe Cotton Mills v. N.L.R.B. [5 Cir.], 103 F.2d 91, 94.” . The omitted part is a parenthetical reference to a tenth item that occurred after the strike had collapsed and is not germane to this discussion. . We assume by this is meant “all nine of them together with the unilateral increase of wages” heretofore eliminated by us. . Although it is here assumed that no net substantial concessions were made, the company vigorously asserts it made some of substance during the negotiations. . The terms oí the management functions clause there before the Court was: “The right to select and hire, to promote to a better position, to discharge, demote or discipline for cause, and to maintain disciplino and efficiency of employees and to determine the schedules of" }, { "docid": "23430480", "title": "", "text": "LINDLEY, Circuit Judge. The National Labor Relations Board seeks to have enforced its order entered against respondent. The controversy between the parties had its origin in a complaint issued by the Board in pursuance of charges filed by the International Association of Machinists hereinafter termed the Union. The complaint charged respondent with unfair labor practice in that respondent had refused to bargain with the bargaining agent of its employees by unilaterally granting wage increases on June 30 and October 5, 1948 and by granting certain vacation pay benefits “without consulting or giving notice to the Union” and by refusing to negotiate in regard to Union security on October 21 and thereafter. It further charged that after a strike began on October 19, 1948, respondent refused to negotiate concerning the union shop issue, tried to persuade em ployees to abandon the strike and refused, after March 28, 1949, to recognize the Union and to reinstate strikers. Events Prior to the Strike. From 1937 to the fall of 1948 the Union and respondent enjoyed an unbroken collective bargaining relationship under union shop contracts. On January 19, 1948, the Union requested reopening the wage clause in the contract due to terminate the following October, as it was permitted to do thereunder. Negotiations on wages and proposed revisions of the agreement began on June IS and continued at varying intervals until October 18, when a negotiating meeting broke up in “mutual ill-feeling.” The next morning the employees struck and left the plant, remaining out until April 1949, when they sought reinstatement. The employer refused the request upon the ground, except in the cases of two individuals, that their positions were already filled. The other two were strikers who, respondent insisted, engaged in conduct on the picket line which disqualified them as desirable employees. During the early course of the negotiations the Union requested an increase in wages of 160 per hour; the company offered an increase of 100. This was not accepted by the Union. However, on June 30, the company notified its employees that, though the Union had not accepted the offer, it" }, { "docid": "9359727", "title": "", "text": "se violation of 8(a) (5): “Union representatives were at liberty to discuss with Bahrs any and all proposals and counterproposals and thus secure clarification of the issues, an important element in reaching agreement. Bahrs could, and did, make recommendations to the Company, and thereby conveyed to it an áppraisal of the situation and the Union’s demands.” Lloyd A. Fry Roofing Co. v. N. L. R. B., 216 F.2d 273, 276 (9th Cir., 1954), modified 220 F.2d 432 (9th Cir., 1955). (d) ; Unilateral acts in changing wages and work loads of the fork lift driver and loomfixers. The majority characterizes this element of the Board’s case as insubstantial and insignificant, and to be given no weight in the ultimate determination. At most it raises a question of interpretation of the then existing collective bargaining agreement. (e) Unilateral wage increase. The majority places great reliance on the unilateral wage increase granted to the workers, effective on either May 7th or 11th, after the parties had reached an impasse in negotiations and after the Union had informed the Company that it intended to strike. Recently the Supreme Court in N. L. R. B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962) held that a unilateral wage increase granted to workers during the course of negotiations but before the existence of an impasse and without consultation with the Union constituted a violation of the Company’s duty to bargain in good faith, even in the absence of a Board finding of overall bad faith in the conduct of the negotiations. The Court there stated in a footnote: “Of course, there is no resemblance between this situation and one wherein an employer, after notice and consultation, ‘unilaterally’ institutes a wage increase identical with one which the union has rejected as too low.” See National Labor Relation Board v. Bradley Washfountain Co., 7 Cir., 192 F.2d 144, 150-152; Labor Board v. Landis Tool Co., 3 Cir., 193 F.2d 279. N. L. R. B. v. Katz, supra, at p. 745, n. 12, 82 S.Ct. at p. 1113. That is exactly the case here." }, { "docid": "502987", "title": "", "text": "today really comes to this: a unilateral, i. e. a voluntary, increase of wages and other benefits cannot be granted, even after consultation with the union, until the union assents; until then the award constitutes a refusal to bargain. My point is that after notice, consultation or negotiation the increase does not have to await agreement by the union. The Court’s opinion itself, I think, proves these prerequisites were observed. If, nevertheless, bargaining must follow, as the Court holds, the immediate query is: bargaining on what? With an increase assured, obviously the only issue remaining is the defeat or shrinkage of the raise. Had the parties engaged in this fantastic, negative pursuit, it would have been a hypocritical farce. Imagine bargaining to an impasse on the union’s disapproval of the increase. Picture the union thumping the table against the benefits, and the utter sham of the union’s contention is exposed. How long it may thus postpone the employee benefits is not disclosed. The union also argues, as paraphrased by the Court, that the merit system offered by the company “left the question of wages solely to the discretion of the company for a period of about four years and neither the union nor the employees would have recourse to what the company did in the matter of wages”. Unless the union agreed to it, how wages could be fixed exclusively and incontestably by the company is inexplicable. Concededly, the merit system always remained open to bargaining. Truth is, as the Board’s examiner stated — and all of these aerial arguments of the union confirm — the union is only seeking to maintain its prestige. This is made quite evident by the following incidents. First, there is this colloquy in the hearing before the examiner: “Trial Examiner: You told him you didn’t want him to increase the employee’s wages ? “The Witness: [Williams]: Yes sir, a general increase.” Dominance of union self-interest is also manifested in the Board’s explanation in its brief that “Williams also objected to the proposed periodic increases because the plan precluded the Union from playing a part" }, { "docid": "22152691", "title": "", "text": "since no agreement had been reached on even the most minor matters, both sides seemed to feel that the negotiations were at an impasse. Nevertheless, there were seven further meetings. On or about November 10 the Union submitted a final proposed contract which was complete except for a wage clause. On November 22 the Company, in turn, submitted its first and only proposed “contract”, to which we shall make further reference subsequently. Neither of these documents served to bring the parties any closer to an agreement. On December 4 respondent announced to its employees that a Christmas bonus would be paid to them “in recognition of their loyalty during the past year”, with the expression of hope “that we shall be able to continue the payment for many years to come.” On December S respondent posted a notice stating: “Based on certain decisions of the National Labor Relations Board, the Management is now permitted to put into effect immediately the 10(5 an hour increase previously offered to the factory employees in the National Labor Relations Board bargaining unit.” This notice the Board regarded as another aspect of respondent’s “lack of good faith in the bargaining negotiations with the Union.” The Board also went on to add: “[We have] frequently had occasion to point out that the unilateral granting of a wage increase during the course of negotiations with the legally constituted bargaining representative * * * is a violation of the Act. Such action necessarily has the effect of undermining the representative status and prestige of the bargaining agent.” While it was recognized that such a unilaterally announced wage increase might legally be made effective once the parties had reached, as a result of good faith bargaining, an impasse in the bargaining negotiations, it was the Board’s view that the responsibility, for the impasse here must be attributed to respondent’s lack of good faith in the prior negotiations with the Union. It further found that “Respondent emphasized this bad faith by announcing the wage increase in such a way that the Union could not and did not in any way" }, { "docid": "12167664", "title": "", "text": "could not compel National to grant, particularly in view of the undisputed fact that it could not obtain a commensurate increase on the price of its products because of OPS ceiling prices then in effect. We think the findings of respondent National’s refusal to bargain in good faith may not be sustained upon this record. Though admittedly there were contributing irritations, we think the major portion of the testimony, including that of a union negotiator, reveals substantially nothing more than a bona fide impasse and economic strike resulting principally from respondent National’s refusal to grant any wage increase and the union’s refusal to accept anything less. True, the Board found that “National’s failure to accept * * * the Union’s proposal of a contingent wage increase” to some extent objectively revealed that the ceiling price on National’s products “was not the true reason for its unyielding position on wages, and that in advancing that reason Na tional was not dealing with the Union in good faith.” However, it seems to us the Board’s inference in this respect is without substantial support, for no purely contingent wage increase, as such, appears to have been definitely agreed to by the union, though there is some testimony revealing that the union negotiator, Baker, did suggest that if National would grant an immediate wage increase embodying only a portion of the union’s additional 25^ an hour demand, it would agree to make the remainder contingent upon National’s obtaining price relief. In any event, National was not bound at its peril to grant a wage increase. The mere fact that a bona fide impasse in negotiations was reached is no convincing evidence of National’s unlawful refusal to bargain, for Section 8(a) (5) does not require an employer’s involuntary concession on any issue, or retreat from any bargaining position taken in good faith upon penalty of being held guilty of an unfair labor practice. N. L. R. B. v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027, affirming American National Ins. Co. v. N. L. R. B. 5 Cir., 187 F.2d" }, { "docid": "15402675", "title": "", "text": "PER CURIAM: The National Labor Relations Board (Board hereinafter) petitions for enforcement of its order issued against the respondent on August 7, 1967. We conclude that there is substantial evidence in the record as a whole to support the Board’s finding of failure to bargain in good faith, in violation of the provisions of Section 8(a) (5) and (1) of the National Labor Relations Act. Negotiations between the union and the respondent commenced in December of 1965, were interrupted by the death of respondent’s attorney in June of 1966, resumed in August and ceased the following October when the mediator, on being advised that the respondent would “go no further”, concluded that further meetings would be futile. The respondent made no further contact with the union and soon after initiated a wage increase. The record indicates that prior to the death of the respondent’s attorney the parties had agreed upon numerous provisions of the contract. The negotiations to this point had proceeded on the basis of a one-year contract. When negotiations resumed in August, the respondent’s new attorney submitted a contract proposal containing several features previously agreed upon by the parties, but also containing a new proposal that the agreement be of three years duration. The union representative indicated that a three-year agreement might be satisfactory but that other terms of the proposed contract would have to be renegotiated accordingly. It was at this point that the bargaining sessions ceased and that the unilateral wage increase was instituted by the respondent. On this basis the Board, affirming the Trial Examiner, found that the respondent violated the provisions of Section 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain in good faith and by instituting a general wage increase without bargaining to impasse with the union. The good faith standard of collective bargaining does not obligate a party to yield to any demands, but does impose a duty to negotiate with an open and fair mind and a sincere purpose to find a basis of agreement. See N.L.R.B. v. Herman Sausage Co., 5 Cir. (1960), 275" }, { "docid": "23322003", "title": "", "text": "the basis of such increases, or the names of those receiving betterments in the wage scale and the amounts of the increased wages received by them. Aluminum Ore Co. v. National Labor Relations Board, 7 Cir., 131 F.2d 485, 486, 487, 147 A.L.R. 1, is closely in point. There, the complaint was that the employer had taken unilateral action as to certain wage increases, and had withheld from the union “information as to pay rates which was necessary and basic to collective bargaining.” There, as here, the relationship between the company and the union as recognized bargaining agent of its employees had been at all times serene and friendly. The employer and the union, from time to time both before and after the complaint ' was filed, had entered into collective bargaining agreements. Ultimately, the company insisted that any increase in wages should be determined by consideration of the individual members of several separate groups included in the union. Quite reasonably and with honest belief in the justification of its position, the company argued that in view of its past record of increases, a flat horizontal increase to all members of the union in the same proportion or amounts would work inequities, as the wages of some of the men had been raised comparatively recently and those of others had not. The union insisted that its members be treated as a whole. While the negotiations were continuing, an apparent impasse was reached; but the union receded from its earlier position and announced its willingness to bargain upon the basis of consideration of the respective groups. The company declared, however, that it would determine for itself what the wages and rates of pay should be, as it had done for many years; that it was making presently certain increases of which it had advised the union [as was not done by respondent in the instant case]; and that such increases would stand unless and until there should be objections by any individual member of the union, in which event the company would permit any aggrieved person to present his complaint, either" }, { "docid": "22267418", "title": "", "text": "the respective departments listing the various wage increases. The letter was received by Douty the next day. While the negotiating committee was in Pickford’s office, copies of the notices announcing the wage increases were being posted on the bulletin boards in the respective departments. “It will be seen from the foregoing that neither the Union nor the negotiating committee was consulted from December 19, the date of the last conference, to January 1, 1946, the date of the granting of the wage increase. Nor was the committee consulted on the latter date. The respondent merely presented it with a fait accompli, without affording the Union an opportunity to negotiate, with respect to the amount of the increase, the employees to whom the increase would be applicable, the effective date of the increase or any of the factors normally envisaged in the collective bargaining process. “It cannot be disputed, nor does the respondent deny, that the granting of the wage increase at that time, constituted unilateral action. ... “While it is evident that the Union was insistent in its demand for some form of union security during its negotiations with the respondent, the preponderance of the credible evidence does not support the respondent’s position that the Union had, in effect, presented an ultimatum that no contract would be consummated which did not afford union security. As has already been indicated, union security was only one of several matters, aside from the wage question, upon which agreement had not yet been reached. If, as the respondent contends, it had left no doubt as to its position on the issue of union security in ihe conferences of October 17 and 18, and it was convinced that the Union was adamant on this issue, it seems unlikely that the parties would have conferred on November 7 and 8, and again on December 19, when the Union submitted a written wage proposal. “It is clear, therefore, and the undersigned finds, that, although the parties had reached a temporary impasse on December 19 on some issues, principally wages, union security, and check-off, there is no substantial" }, { "docid": "17080054", "title": "", "text": "future benefits must flow and which may dry up if it is not obliged. * * *” 375 U.S. at 409, 84 S.Ct. at 460 (footnote omitted). Similarly, it is a violation of § 8 (a) (5) for an employer unilaterally to grant an increase in benefits following employee designation of a union since the company is under an obligation to bargain collectively. NLRB v. Katz, 1962, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed. 2d 230; NLRB v. Crompton-Highland Mills, Inc., 1949, 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320. In holding that the employer’s unilateral grant of a wage increase during the bargaining period was a violation of the duty to bargain in good faith the Supreme Court in Crompton-Highland Mills, Inc., supra, said: “[T]he respondent, during the course of negotiations with the Union, refused to accede to the Union’s wage demands and it was not until their last conference on December 19, 1945, that the respondent made its first and only counterproposal of approximately 1 to iy2 cents an hour raise, which the Union rejected. Thereafter, the respondent made no further effort to settle the wage dispute but, instead, on January 1, 1946 only 12 days later, granted its employees a substantially larger increase than that previously offered to the Union, without consulting the Union or affording it an opportunity to negotiate with respect thereto. In our opinion, such action taken as [so] soon after the Union was attempting through the bargaining process to reach an agreement with the respondent, among other things, on wages, clearly shows that the respondent was not acting in good faith during the negotiations, and is manifestly inconsistent with the principle of collective bargaining.” 337 U.S. at 221-222, 69 S.Ct. at 962 (emphasis in original). Plainly, therefore, it may be an unfair labor practice for an employer unilaterally to give an increase in wages or other benefits both during and after an election campaign. During the campaign such action may be an attempt to influence employees in their choice of a bargaining agent, a violation of § 8(a) (1); during contract" }, { "docid": "22152683", "title": "", "text": "first meeting. By letter of August 9 the Union requested respondent to furnish it with wage rates and classifications and the age and length of service of all employees in the bargaining unit, “In order to enable the United Steelworkers of America to bargain intelligently” with the Company. Although the Union made several further requests for this data, the Company did not supply it in full until some time in October. Commenting upon this, the Board observed that “the Respondent’s delay in supplying the requested data may be viewed legitimately as a significant part of its entire course of conduct in determining whether or not the Respondent has exercised good faith in its bargaining negotiations with the Union.” On September 15 the first meeting took place as scheduled. Apparently the Union wanted to begin the discussions on a broad base, exploring potential areas of agreement and disagreement. The Company, however, insisted that the Union submit a written list of its contract proposals, which the Union immediately did. Subsequently there were twelve further meetings between the parties running from the beginning of October through early in February, 1951. The first five of these conferences were devoted to a discussion of the suggested contract submitted by the Union. The principal Union proposals were (1) a substantial wage increase; (2) some form of union security, either a union shop or a maintenance of membership clause as an alternative; (3) a checkoff provision; (4) a grievance procedure with arbitration as the ultimate resort; (5) six paid holidays annually; (6) a seniority provision, and (7) some form of insurance and pensions. With respect to the matter of wages, the Company offered a general wage increase of ten cents per hour, with the express condition that if the offer were accepted there would be no further negotiations on this subject. The Union, having originally requested fifteen cents, or maybe more, was unwilling to accept the offer on these terms; however, it repeatedly stated that it would regard all the various economic benefits as a single “package”, and hence might be able to agree to the ten-cent" }, { "docid": "14738239", "title": "", "text": "party to take advantage of a shift in economic strength in a bona fide attempt to obtain agreement on original proposals seen as furthering its best interest. Here, after the strike, it was not illegal for Atlas to use its dominant bargaining position in seeking contract terms most favorable to it. The courts and the board have recognized that an employer’s successful weathering of a strike changes the bargaining parties’ positions. In N.L.R.B. v. Alva Allen Industries, Inc., 369 F.2d 310, 318 (8th Cir. 1966), the court found no bad faith bargaining where the parties had reached agreement on about 80% of the issues, were apart on wages and union security when the employees struck, and negotiations continued but the employer remained adamant on union security, because “it is only natural that the Company, sensing its strong position, will bargain with increasing toughness and will be less inclined to make concession to the Union.” Similarly, in O’Malley Lumber Co., 234 N.L.R.B. 1171, 1179 (1978), the board said: “Where an employer’s economic power increases through the successful weathering of a strike, it is not unlawful for an employer to use its new-found strength to secure contract terms that it deems beneficial”. We hold that the board’s finding of bad faith bargaining by Atlas under Section 8(a)(5) is not supported by substantial evidence in the record as a whole, and accordingly deny enforcement of that portion of the board’s order. Unilateral Changes The board found that Atlas violated Section 8(a)(5) by unilaterally instituting changes in wages and other terms of employment without bargaining to impasse. That finding, however, rested on the board’s unsupported finding of bad faith bargaining. Having bargained in good faith to impasse before instituting unilateral changes, Atlas was entitled to make those changes consistent with its last proposals during bargaining. United Fire Proof Warehouse Co. v. N.L.R.B., 356 F.2d 494, 497 (7th Cir. 1966). Enforcement of the portion of the order relating to unilateral changes must therefore be denied. Subcontracting Information The courts have held certain types of information, for example, wage data on unit employees, so intrinsic to" }, { "docid": "22709099", "title": "", "text": "increase system which was instituted unilaterally was considerably more generous than that which had shortly theretofore been offered to and rejected by the union. Such action conclusively manifested bad faith in the negotiations, Labor Board v. Crompton-Highland Mills, 337 U. S. 217, and so would have violated § 8 (a) (5) even on the Court of Appeals’ interpretation, though no additional evidence of bad faith appeared. An employer is not required to' lead with his best offer; he is free to bargain. But even after an impasse is reached he has no license to grant wage increases greater than any he has ever offered the union at the bargaining table, for such action is necessarily inconsistent with a sincere desire to conclude an agreement with the union. The respondents’ third unilateral action related to merit increases, which are also a subject of mandatory bargaining. Labor Board v. Allison & Co., 165 F. 2d 766. The matter of merit increases had been raised at three of the conferences during 1956 but no final understanding had been reached. In January 1957, the company, without notice to the union, granted merit increases to 20 employees out of the approximately 50 in the unit, the increases ranging between $2 and $10. This action too must be viewed as tantamount to an outright refusal to negotiate on that subject, and therefore as a violation of § 8 (a)(5), unless the fact that the January raises were in line with the company’s long-standing practice of granting quarterly or semiannual merit reviews — in effect, were a mere continuation of the status quo — differentiates them from the wage increases and the changes in the sick-leave plan. We do not think it does. Whatever might be the case as to so-called “merit raises” which are in fact simply automatic increases to which the employer has already committed himself, the raises here in question were in no sense automatic, but were informed by a large measure of discretion. There simply is no way in such case for a union to know whether or not there has been a" }, { "docid": "22709098", "title": "", "text": "be led to adopt a protective vagueness- on the issue of sick leave, which also would inhibit the useful discussion contemplated by Congress in imposing the specific obligation to bargain collectively. Other considerations appear from consideration of the respondents’ unilateral action in increasing wages. At the April 4, 1957, meeting the employers offered, and the union rejected, a three-year contract with an imme diate across-the-board increase of $7.50 per week, to be followed at the end of the first year and again at the end of the second by further increases of $5 for employees earning less than $90 at those times. Shortly thereafter, without having advised or consulted with the union, the company announced a new system of automatic wage increases whereby there would be an increase of $5 every three months up to $74.99 per week; an increase of $5 every six months between $75 and $90 per week; and a merit review every six months for employees earning over $90 per week. It is clear at a glance that the automatic wage increase system which was instituted unilaterally was considerably more generous than that which had shortly theretofore been offered to and rejected by the union. Such action conclusively manifested bad faith in the negotiations, Labor Board v. Crompton-Highland Mills, 337 U. S. 217, and so would have violated § 8 (a) (5) even on the Court of Appeals’ interpretation, though no additional evidence of bad faith appeared. An employer is not required to' lead with his best offer; he is free to bargain. But even after an impasse is reached he has no license to grant wage increases greater than any he has ever offered the union at the bargaining table, for such action is necessarily inconsistent with a sincere desire to conclude an agreement with the union. The respondents’ third unilateral action related to merit increases, which are also a subject of mandatory bargaining. Labor Board v. Allison & Co., 165 F. 2d 766. The matter of merit increases had been raised at three of the conferences during 1956 but no final understanding had been" }, { "docid": "22152692", "title": "", "text": "Board bargaining unit.” This notice the Board regarded as another aspect of respondent’s “lack of good faith in the bargaining negotiations with the Union.” The Board also went on to add: “[We have] frequently had occasion to point out that the unilateral granting of a wage increase during the course of negotiations with the legally constituted bargaining representative * * * is a violation of the Act. Such action necessarily has the effect of undermining the representative status and prestige of the bargaining agent.” While it was recognized that such a unilaterally announced wage increase might legally be made effective once the parties had reached, as a result of good faith bargaining, an impasse in the bargaining negotiations, it was the Board’s view that the responsibility, for the impasse here must be attributed to respondent’s lack of good faith in the prior negotiations with the Union. It further found that “Respondent emphasized this bad faith by announcing the wage increase in such a way that the Union could not and did not in any way share the credit for it.” In the meantime the Union was becoming increasingly disturbed over what it called “the Company’s bad faith” and the consequently decreasing likelihood of ever arriving at an agreement. On or about November 14 the Union reported to its membership that the Company was strongly against all the “basic provisions” suggested by the Union and that it appeared “that the Company is just stalling.” Shortly thereafter the employees authorized a strike. At the December 27 meeting the Union advised the Company that there would be a strike at the plant effective January 2 “because they were not bargaining in good faith with the union”. This strike was called, and was still in progress at the time of the hearing before the trial examiner. Subsequently the federal and the Massachusetts conciliation services — which had come to play an active part in the negotiations — made several further, but unsuccessful, efforts to get the parties together. The Company told the conciliators that the parties were still bargaining and that it thought more" }, { "docid": "9359726", "title": "", "text": "se violation of Section 8(a) (5), it is a factor to be considered in the light of all the other circumstances. The negotiators here were limited in their power to come to an agreement with respect to wages and the check-off proposals. However, they were authorized to negotiate certain other provisions in dispute and did compromise some of these issues at a bargaining conference on June 1, 1959. This is not the kind of case in which the negotiators were without any authority to vary the Company’s proposals, and those with sufficient authority were out of reach. On the contrary, the Company’s negotiators were in constant touch with the Company’s president, Horblit, apparently calling him after every bargaining session. See McLean-Arkansas Lumber Co., 109 N.L.R.B. 1022, 1038 (1954). In addition, at the suggestion of Constangy, one of the Company’s negotiators, Bothelo, the Union’s representative, traveled from Georgia to Boston to meet with Mr. Horblit. As the Court of Appeals for the Ninth Circuit has said in holding that lack of authority is not a per se violation of 8(a) (5): “Union representatives were at liberty to discuss with Bahrs any and all proposals and counterproposals and thus secure clarification of the issues, an important element in reaching agreement. Bahrs could, and did, make recommendations to the Company, and thereby conveyed to it an áppraisal of the situation and the Union’s demands.” Lloyd A. Fry Roofing Co. v. N. L. R. B., 216 F.2d 273, 276 (9th Cir., 1954), modified 220 F.2d 432 (9th Cir., 1955). (d) ; Unilateral acts in changing wages and work loads of the fork lift driver and loomfixers. The majority characterizes this element of the Board’s case as insubstantial and insignificant, and to be given no weight in the ultimate determination. At most it raises a question of interpretation of the then existing collective bargaining agreement. (e) Unilateral wage increase. The majority places great reliance on the unilateral wage increase granted to the workers, effective on either May 7th or 11th, after the parties had reached an impasse in negotiations and after the Union had informed" } ]

[ { "docid": "22058360", "title": "", "text": "life,” and that “the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.” Id. at 15, 96 S.Ct. at 2892. It reasoned that although the Act imposed new liability for disabilities developed prior to its enactment, its operation was “justified as a rational measure to spread the costs of the employees’ disabilities to those who have profited from the fruits of their labor.” Id. at 18, 96 S.Ct. at 2893. The reasoning of Turner Elkhorn applies with great force to the retroactivity contentions advanced here. While the generator defendants profited from inexpensive waste disposal methods that may have been technically “legal” prior to CERCLA’s enactment, it was certainly foreseeable at the time that improper disposal could cause enormous damage to the environment. CERCLA operates remedially to spread the costs of responding to improper waste disposal among all parties that played a role in creating the hazardous conditions. Where those conditions are indivisible, joint and several liability is logical, and it works to ensure complete cost recovery. We do not think these consequences are “particularly harsh and oppressive,” United States Trust Co. v. New Jersey, 431 U.S. 1, 17 n. 13, 97 S.Ct. 1505, 1515 n. 13, 52 L.Ed.2d 92 (1977) (retrospective civil liability not unconstitutional unless it is particularly harsh and oppressive), and we agree with the Eighth Circuit that retroactive application of CERCLA does not violate due process. United States v. Northeastern Pharmaceutical & Chemical Co., Inc., 810 F.2d 726, 734 (8th Cir.1986), cert. denied, — U.S. -, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987). Nor does the imposition of strict, joint and several liability convert CERCLA into a bill of attainder or an ex post facto law. United States v. Conservation Chemical Co., 619 F.Supp. 162, 214 (W.D.Mo.1985); United States v. Tyson, 25 Env’t.Rep.Cas. (BNA) 1897 (E.D.Pa.1986) [available on WESTLAW, 1986 WL 9250]. The infliction of punishment, either legislatively or retrospectively, is a sine qua non of legislation that runs afoul of these constitutional prohibitions. See Nixon v. Administrator of General Services, 433 U.S." } ]

[ { "docid": "16077709", "title": "", "text": "1071 (D.N.J.1981), aff'd, 688 F.2d 204 (3d Cir.1982); United States v. Diamond Shamrock Corp., 12 Envtl.L.Rep. 20819, 20822, 1981 WL 137997 (N.D.Ohio 1981). As one court explained, “To hold that remedial environmental statutes could or should not apply to conduct engaged in antecedent to the enactment of such statutes, when the effects of such conduct create a present environmental threat, would constitute an irrational judicial foreclosure of legislative attempts to rectify pre-existing and currently existing environmental abuses.” Diamond Shamrock, 12 Envtl.L.Rep. at 20822. CERCLA adopted the definition of “disposal” • set out in RCRA. 42 U.S.C. § 9601(29). The CERCLA statute also uses the term “release,” which is defined as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment....” 42 U.S.C. § 9601(22). As with RCRA, several courts have found that the application of CERCLA to waste disposal that occurred prior to the statute’s enactment was not retroactive because liability stemmed from the present and continuing effects of the past conduct, not from the past conduct itself. Amland Prop. Corp. v. Aluminum Co. of America, 711 F.Supp. 784, 791 n. 6 (D.N.J.1989); United States v. South Carolina Recycling & Disposal, Inc., 653 F.Supp. 984, 996-97 (D.S.C.1984), aff'd in part sub nom., United States v. Monsanto Co., 858 F.2d 160 (4th Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989). Courts have made a parallel analysis with regard to at least one state hazardous waste statute. Pennsylvania has a state Hazardous Sites Cleanup Act which is quite similar to Rhode Island’s HWMA. 35 Pa.Cons.Stat. Ann. § 6020.702(a) (“A person who is responsible for a release or threatened release of a hazardous substance from a site as specified in section 701 is strictly liable for the following response costs and damages which result from the release or threatened release.... ”). The Pennsylvania statutory definition of “release” includes leaking and discharging. 35 Pa.Cons.Stat.Arm. § 6020.103. Courts have applied this statute to hazardous materials which had been disposed of prior to the statute’s enactment but which continued to leak hazardous waste after" }, { "docid": "16077705", "title": "", "text": "at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of-”). Where the language of a state law parallels that of a federal law, courts often follow precedent which interprets the federal law. See Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1156-67 (1st Cir.1989). Courts have overwhelmingly held that CERCLA applies retroactively, so that parties may be hable for hazardous waste disposal that occurred prior to CERCLA’s enactment. See, e.g., O’Neil v. Picillo, 883 F.2d 176, 183 n. 12 (1st Cir.1989), cert. denied sub nom., American Cyanamid Co. v. O’Neil, 493 U.S. 1071, 110 S.Ct. 1115, 107 L.Ed.2d 1022 (1990); United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726, 732-34 (8th Cir.1986) (citing additional cases), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987). As IPRRA contains the same language that, in CERCLA, has been interpreted to apply retroactively, logically IPRRA must apply retroactively as well. Hazardous Waste Management Act Second, I must address whether HWMA apples retroactively. The liability portion of thé HWMA states: Any person who shah violate the provisions of this chapter through the transportation, storage, or disposal of hazardous wastes in a manner or location not authorized by this chapter or the rules and regulations promulgated pursuant hereto, or who shall have caused the unauthorized transportation, storage, or disposal of hazardous wastes shall be absolutely hable for the cost of containment, cleanup, restoration, and removal of the hazardous wastes, and for all damages, losses, or injuries, including environmental, which result directly or indirectly from the discharge. R.I.Gen.Laws § 23-19.1-22(a). The question is whether the legislature intended the phrase “shah have caused” to include parties who caused unauthorized disposal prior to the statute’s enactment. Although the verb was written in the past tense, this alone is not enough to reveal the legislature’s intention. See, e.g., Taylor, 908 F.Supp. at 104. However, in its recent drafting of IPRRA, the Rhode Island legislature shed considerable fight on its original intention in HWMA IPRRA’s liability section explicitly states: “the state" }, { "docid": "8462921", "title": "", "text": "cleanup of coal gas waste on plaintiffs’ property. The court also ordered NEES and its subsidiary New England Power Service Co. (“NEP-SCO”) to pay for the cleanup of oil gas waste on Boston Gas’ property. This appeal followed. DISCUSSION Under CERCLA, four parties may be responsible for the costs of an environmental cleanup. These are: the owner or operator of a contaminated vessel or facility; the owner and operator of a facility at the time it became contaminated; any person who arranges for the transport or disposal of hazardous wastes; and any person who accepts hazardous wastes for the purposes of transport or disposal. 42 U.S.C. § 9607(a). Courts have interpreted this statute to include successor corporations in a merger situation, e.g., Anspec Co. v. Johnson Controls, Inc., 922 F.2d 1240, 1245 (6th Cir.1991); Louisiana-Pacific Corp. v. Asarco, Inc., 909 F.2d 1260, 1262-63 (9th Cir.1990), and parent corporations when the parent can be considered an operator, United States v. Kayser-Roth Corp., 910 F.2d 24, 26 (1st Cir.1990), cert. denied, 498 U.S. 1804, 111 S.Ct. 957, 112 L.Ed.2d 1045 (1991), or an owner, United States v. Kayser-Roth Corp., 724 F.Supp. 15, 23 (D.R.I.1989). The list of responsible parties reflects CERCLA’s “essential purpose” of making “those responsible for problems caused by the disposal of chemical poisons bear the costs and responsibility for remedying the harmful conditions they created.” Dedham, Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 (1st Cir.1986). CERC-LA thus makes such parties liable to the government or to other private parties for the costs of a cleanup. Id. If § 9607(a) imposes liability on a party, then that party cannot escape liability by means of a contract with another party.- 42 U.S.C. § 9607(e)(1) provides that “[n]o ... agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a release or threat of release under this section; to any other person the liability imposed under this section.” That is, the government or a private party can pursue any responsible party" }, { "docid": "18439258", "title": "", "text": "and chemical processes are at their pernicious work, carrying destructive forces into the future. The decision was made in CERCLA to clean up these inactive hazardous waste sites. The next question was who should pay for the cleanup. Congress assigned to the categories of persons listed in § 107(a) the liability for all costs incurred in cleaning up hazardous waste sites. This liability scheme was enacted to assure “that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their actions.” (Senate Report at 13.) “[S]ociety should not bear the costs of protecting the public from hazards produced in the past by a generator, transporter, consumer, or dumpsite owner or operator who has profited or otherwise benefited from commerce involving these substances and now wishes to be insulated from any continuing responsibilities for the present hazards to society that have been created.” Senate Report at 98. See State of Ohio ex rel. Brown v. Georgeoff, 562 F.Supp. 1300, 1312 (N.D.Ohio 1983) (citing additional legislative history and concluding that “there is little doubt that Congress intended for those individuals who were responsible for creating the hazards from these wastes to bear the cost of clean up.”) Courts have faced two separate, though related, issues regarding the retroactive application of CERCLA. The first issue is whether responsible parties are liable under CERCLA for acts committed before enactment of the statute. The second issue is the one here presented—whether responsible parties are liable for government response costs incurred before CERCLA’s enactment. Relying on CERCLA’s overriding scheme and purpose, courts have had no difficulty in imposing liability on responsible parties for acts committed before enactment. United States v. South Carolina Recycling and Disposal, Inc., 20 E.R.C. 1753 (D.S.C. February 23, 1984); United States v. Conservation Chemical Co., 589 F.Supp. 59 (W.D.Mo.1984); United States v. Northeastern Pharmaceutical and Chemical Co., 579 F.Supp. 823; United States v. A & F Materials Company, Inc., 578 F.Supp. 1249 (S.D.Ill.1984); United States v. Price, 577 F.Supp. 1103 (D.N.J.1983); State of Ohio ex rel. Brown v. Georgeoff, 562 F.Supp. 1300; United States v. Outboard" }, { "docid": "16460665", "title": "", "text": "In considering this question, we must address, among other things, the “pollution exclusion” provisions of the insurance policies, which preclude coverage for pollution-related claims unless the release of pollutants was “sudden and accidental.” Based on recent developments in Massachusetts environmental insurance law, we vacate in part the grant of summary judgment. We also conclude that New Jersey law applies to claims under policies issued to a New Jersey corporation later acquired by Millipore, and that summary judgment was properly entered in favor of one of Milli-pore’s insurers, Travelers Indemnity Company, because Millipore failed to produce evidence of an occurrence within the Travelers policy period. Finally, we hold that Millipore was entitled to summary judgment on the insurers’ counterclaims for reimbursement for defense costs paid to Millipore. I. The insurance coverage issues involved in this case are best understood in context. CERCLA, which was enacted in 1980, is the primary federal statutory scheme regulating hazardous waste cleanups. Some states have enacted their own regimes as well. CERCLA imposes liability for the costs of cleaning up hazardous waste sites and for the loss of natural resources due to pollution on three categories of potentially responsible parties (“PRPs”): past and present owners and operators of hazardous waste sites, some companies that transported waste to these sites, and companies that generated waste disposed of at these sites. 42 U.S.C. § 9607(a). Suit may be brought against a PRP by the federal government, a state, or a private party who bore cleanup costs. Jerry, Understanding Insurance Law § 65, at 459-60 (2d ed.1996). See generally Ostrager & Newman, Insurance Coverage Disputes, §§ 10.01, 10.02 (8th ed.1995). CERCLA creates novel forms of liability for environmental harm. It is, in general, a strict liability regime. St. Paul Fire & Marine Ins. Co. v. Warwick Dyeing Corp., 26 F.3d 1195, 1197-98 (1st Cir.1994). The CERCLA cost allocation scheme may operate retroactively as well: a PRP may be held responsible for actions taken before CERCLA was enacted and before the PRP was aware that its actions might lead to environmental liability. Jerry, supra, § 65, at 459-60. CERCLA allows" }, { "docid": "20266036", "title": "", "text": "housed at the Moynihan Federal Courthouse at 500 Pearl Street, a \"temporary” location of now some five years. . In the late 1930s or early 1940s, the Hooker Chemical Company began dumping toxic waste in an abandoned canal near Niagara Falls. Michael H. Brown, Love Canal and the Poisoning of America, The Atlantic Monthly, Dec. 1979, at 33. In 1953, the canal was filled and sold to the city to provide land for a new elementary school and playground. Id. Families moved into the area, unaware that the large field behind their homes was teeming with toxic waste. Id. Despite evidence of contamination, it took until 1978 for New York State and the federal government to investigate the pervasive health problems affecting the residents and the deterioration of buildings around the Love Canal. S.Rep. No. 96-848, at 8-10 (1980). Ultimately, it was determined that thousands of tons of toxic waste contaminated the area around Niagara Falls, creating an \"environmental ghetto[]” that then-President Carter declared a federal emergency. Id. .Under CERCLA, a potentially responsible party (PRP) is defined as: (1) the owner and operator of a 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 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 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). . ''Removal” under CERCLA means: CT]he cleanup or removal of released hazardous substances from the environment, such actions as may be necessary taken in the" }, { "docid": "4254627", "title": "", "text": "property, or attorney’s fees. Plaintiff does not oppose this contention. RSA 147-B: 10 permits the recovery of specified “response costs” which are defined as costs relating to containment, 147-B:10 11(a), cleaning, 147-B:10 11(b), and removal, 147-B:10 11(c), of hazardous waste. No other costs are allowed under this statute. Plaintiff is therefore not entitled to consequential costs or attorney’s fees under authority of RSA 147-B:10. (3) Microdot also argues that RSA Ch. 147-B cannot be applied retroactively to hold it liable for damages caused by hazardous wastes discharged before the statute was enacted. For the reasons that follow, the Court cannot agree. First, it is clear that the New Hampshire Legislature intended RSA Ch. 147-B to apply retroactively. That legislative intent is made manifest in the first section of the statute. I. The general court hereby finds that as a result of past hazardous waste dumping activities, the potential for spills of hazardous materials and the present lack of proper hazardous waste treatment, storage or disposal facilities within the state, the problem of managing hazardous waste and the movement of hazardous materials in the state has become a matter of great concern. The general court further finds that the public health and safety and the environment are seriously threatened due to hazardous wastes which have been previously discharged or disposed of in an environmentally unsound manner and by the possibility of future improper disposal or spills of hazardous wastes. II. The general court hereby declares that the purpose of chapter 147-B is to provide for the proper, adequate and safe cleanup of sites within New Hampshire where hazardous wastes or materials have been improperly discharged, disposed of or spilled. It is the intent of this chapter to provide for financial capability and procedures which will expedite the cleanup of hazardous wastes and materials and encourage private organizations to assist in that effort. N.H. RSA 147-B:1 (emphasis added). Compare United States v. Northeastern Pharmaceutical, 810 F.2d 726, 732-33 (8th Cir.1986) (“it is manifestly clear that Congress intended CERCLA to have retroactive effect”). Microdot takes the position that RSA Ch. 147-B cannot be" }, { "docid": "16077704", "title": "", "text": "or operated by another party or entity and containing such hazardous materials; and (d) any person who accepts or accepted any hazardous materials for transport to disposal or treatment facilities or sites selected by such person, from which there is a release or a threatened release of a hazardous material which causes the incurrence of response costs. R.I.Gen.Laws § 23-19.14-6 (emphasis added). The plain language of the statute indicates that parties who owned the property when hazardous materials were disposed on it are hable. In addition, IPRRA’s legislative findings explicitly mention many previously contaminated sites in Rhode Island which have remained abandoned and un-remediated. R.I.Gen.Laws § 23-19.14-1. The purpose of the statute was to clean up and reuse such sites. R.I.Gen.Laws § 23-19.14—l(i). Thus, the legislative intent in passing IPRRA included addressing contamination that had occurred in the past. Moreover, the definition of responsible parties in IPRRA is almost identical to the definition in the liability section of the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). 42 U.S.C. § 9607(a)(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-”). Where the language of a state law parallels that of a federal law, courts often follow precedent which interprets the federal law. See Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1156-67 (1st Cir.1989). Courts have overwhelmingly held that CERCLA applies retroactively, so that parties may be hable for hazardous waste disposal that occurred prior to CERCLA’s enactment. See, e.g., O’Neil v. Picillo, 883 F.2d 176, 183 n. 12 (1st Cir.1989), cert. denied sub nom., American Cyanamid Co. v. O’Neil, 493 U.S. 1071, 110 S.Ct. 1115, 107 L.Ed.2d 1022 (1990); United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726, 732-34 (8th Cir.1986) (citing additional cases), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987). As IPRRA contains the same language that, in CERCLA, has been interpreted to apply retroactively, logically IPRRA must apply retroactively as well. Hazardous Waste Management Act Second, I must address whether" }, { "docid": "18439260", "title": "", "text": "Marine Corp., 556 F.Supp. 54 (N.D.Ill.1982); United States v. Reilly Tar & Chemical Corp., 546 F.Supp. 1100 (D.Minn.1982); United States v. Wade, 546 F.Supp. 785 (E.D.Pa.1982) (off-site generators of wastes disposed of before CERCLA’s enactment liable under § 107 but not under § 106). In my view, the first issue is the more difficult issue of the two. Waste generators have argued that it violates due process to hold them liable under § 107(a) for acts committed before CERCLA’s enactment. This fairness argument is not frivolous—if they had known at the time they disposed of the wastes that they would one day be liable for the resulting environmental damage, some of them may have acted quite differently. Indeed it may have been significantly less expensive for them to have properly disposed of the wastes initially instead of cleaning up the disposal sites after the fact. Courts which have addressed these arguments have held that retroactive application of § 107(a) to pre-CERCLA conduct does not offend due process. United States v. South Carolina Recycling and Disposal, Inc., 20 E.R.C. at 1761-62; United States v. Northeastern Pharmaceutical and Chemical Co., 579 F.Supp. at 840-41. I agree with their reasoning and conclusion. The issue here raised, whether Shell may be held liable for government response costs incurred before CERCLA’s enactment, does not raise the due process issues just discussed. In what way could Shell have acted to reduce its liability in 1975 when the Army commenced cleanup at the Arsenal if it had known that CERCLA would be enacted in 1980? Once it is accepted that Shell may be liable for its preCERCLA acts, it is irrelevant, from a due process perspective, whether the government commenced cleanup before or after the Act became law on December 11, 1980. There are no serious due process concerns in holding responsible parties liable for preCERCLA response costs. I conclude that the unavoidably retroactive nature of CERCLA, and Congress’ decision in CERCLA to impose the cost of cleaning up hazardous waste sites on the responsible parties rather than on taxpayers, strongly indicate Congressional intent to hold responsible" }, { "docid": "3512401", "title": "", "text": "407 F.3d 317, 325 (5th Cir.2004)). B. CERCLA Liability Congress enacted CERCLA in 1980 in response to environmental and health dangers posed by property contamination from hazardous substances. See United States v. Bestfoods, 524 U.S. 51, 55, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998) (citing Exxon Corp. v. Hunt, 475 U.S. 355, 106 S.Ct. 1103, 89 L.Ed.2d 364 (1986)). The statute was amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499, 100 Stat. 1613. CERCLA’s “broad, remedial purpose is to facilitate the prompt cleanup of hazardous waste sites and to shift the cost of environmental response from the taxpayers to the parties who benefitted from the wastes that caused the harm.” OHM Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574, 1578 (5th Cir.1997) (citing Matter of Bell Petroleum Servs., Inc., 3 F.3d 889, 894 (5th Cir.1993)). Section 107(a)(4) states that “covered persons” are liable for costs incurred by the federal or state government or Indian tribes in responding to the contamination and for response costs incurred by “any other person.” 42 U.S.C. § 9607(a)(4)(A)-(B). Two contribution provisions, sections 113(f)(1) and 113(f)(3)(B), were added later, as part of SARA. Because CERCLA imposes strict liability, plaintiffs generally do not need to prove that the defendant caused the contamination, only that the defendant is a “covered person.” OHM Remediation Servs., 116 F.3d at 1578 (citing United States v. Alcan Aluminum Corp., 990 F.2d 711, 721 (2d Cir.1993)). If the harm is indivisible, liability is joint and several. Id. at 1579 (citing Bell Petroleum, 3 F.3d at 903). Section 107(a) identifies four categories of “covered persons” who may be liable for cleanup costs associated with the release or threatened release of hazardous substances. See 42 U.S.C. § 9607(a). “Covered persons” are: (1) owners and operators of facilities at which hazardous substances are located; (2) past owners and operators of such facilities at the time that disposal of hazardous substances occurred; (3) persons who arranged for disposal or treatment of hazardous substances; and (4) certain transporters of hazardous substances. See 42 U.S.C. § 9607(a)(l)-(4). “Covered persons” are also referred" }, { "docid": "2047563", "title": "", "text": "ORDER BRETT, District Judge. This matter comes before the Court on the Motion for Summary Judgment and in the Alternative Motion for Partial Summary Judgment of the Defendant, Reid Supply Company, Inc. For the reasons set forth below, the Motion for Summary Judgment is denied. The Alternative Motion for Partial Summary Judgment is granted. Plaintiff Sand Springs Home (the “Home”) herein seeks recovery of money against the named Defendants for certain “response costs” incurred by the Plaintiff pursuant to an administrative order issued by the United States Environmental Protection Agency (“EPA”) pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9601, et seq. “Response costs” are costs imposed on a party under CERCLA for cleanup of a hazardous waste dump site. CERCLA defines such costs as: “(A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan; (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; and (C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release.” A national contingency plan is a plan devised by the President for removal of oil and hazardous substances from the environment. Plaintiff is the owner of certain real property located in Tulsa County, Oklahoma, which was leased to various parties who used the site for the operation of a facility for storage, treatment, disposal or recycling of chemical wastes and by-products. In March 1984, Plaintiff was served with an administrative order by the United States Environmental Protection Agency requiring certain specified cleanup activities at the site, including, among other things, proper cleanup, removal, and disposal of a quantity of chemical wastes then stored in drums and tanks at the site, which the EPA had found presented an emergency situation involving “an imminent and substantial endangerment to the public health or welfare and environment by releases or threatened releases of hazardous substances as defined in § 101(14)" }, { "docid": "6586869", "title": "", "text": "enacted the Comprehensive Environmental Response, Compensation, and Liability Act to provide for the clean up of hazardous waste from polluted sites throughout the United States. Pub.L. No. 96-510, 94 Stat. 2767 (codified at 42 U.S.C. §§ 9601-9675 (1995)); United Technologies Corp. v. United States E.P.A., 821 F.2d 714, 717 (D.C.Cir.1987). Congress amended CERCLA with the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499,100 Stat. 1613, 1615 (codified as amended in scattered sections of 42 U.S.C.). The legislation, as amended, provides, first, a mechanism for clean up of sites polluted with hazardous waste and, second, a mechanism by which a governmental entity or private party may recover the cost of clean up from all parties responsible for the pollution of the site. 42 U.S.C. § 9607; 42 U.S.C. § 9613(f); Walls v. Waste Resource Corp., 823 F.2d 977, 980-81 (6th Cir.1987). The cost of cleaning a site permanently is called the “response cost.” Under CERCLA four classes of “covered persons” may be liable for response costs: (1) the owner and operator of a 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" }, { "docid": "13082887", "title": "", "text": "facts, it is distinguishable from the instant case. First, Congress intended CERCLA to function retroactively. CERCLA’s chief liability provision uses the past tense. See 42 U.S.C. § 9607(a)(2) (applicable to those who “owned” or “operated” a facility at .the time a hazardous substance was disposed). Moreover, CERCLA reaches conduct that occurred prior to its passage because it authorizes government and private parties to clean up abandoned waste sites and then seek recovery of the costs from responsible parties. See Northeastern Pharm. and Chem. Co., Inc., 810 F.2d at 733. Second, Congress acted rationally by spreading the cost of cleaning hazardous waste sites to those who were responsible for creating the sites. Cleaning abandoned and inactive hazardous waste disposal sites is a legitimate legislative purpose which is furthered by imposing liability for response costs upon those parties who created and profited from those sites. See id. at 733-34. Here, apportioning liability to APU fulfills Congress’ goal of spreading costs to responsible parties; APU’s predecessor corporation benefitted from the use of the box, as well as its presumably inexpensive method of abandonment. Although APU contends that its Lability in this case is disproportional because there is no indication that its predecessors had experience with environmental regulation, the Supreme Court has expressly upheld the imposition of retroactive liability despite its departure from past regulatory regimes. See Usery, 428 U.S. at 16, 96 S.Ct. 2882. Finally, we note that in 1973, when the land was transferred to the City, APU’s predecessor corporation explicitly retained liability for any claims related to the property. Under these circumstances, retroactive application of CERCLA to APU does not violate due process. 3. APU also argues that its liability in this case constitutes a violation of the Fifth Amendment Takings Clause, which prohibits taking private property for public use, without just compensation. The aim of the Takings Clause is to prevent the government “from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d" }, { "docid": "23218756", "title": "", "text": "F.2d at 1318. In evaluating a summary judgment motion, the burden of establishing the absence of a material dispute of fact is on the moving party; the court must view all evidence in the light most favorable to the non-movant and resolve all reasonable doubts about the facts in favor of the non-movant. Id.; WBS-TV v. Lee, 842 F.2d 1266, 1269 (11th Cir.1988); Warrior Tombigbee Transportation Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir.1983); see Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). DISCUSSION The Comprehensive Environmental Response Compensation and Liability Act was enacted by Congress in response to the environmental and public health hazards caused by the improper disposal of hazardous wastes. United States v. Maryland Bank & Trust Co., 632 F.Supp. 573, 576 (D.Md.1986); S.Rep. No. 848, 96th Cong., 2d Sess. 2 (1980), U.S.Code Cong. & Admin. News 1980, p. 6119. The essential policy underlying CERCLA is to place the ultimate responsibility for cleaning up hazardous waste on “those responsible for problems caused by the disposal of chemical poison.” Allis Chalmers, 893 F.2d at 1316; United States v. Aceto Agricultural Chemicals Corp., 872 F.2d 1373, 1377 (8th Cir.1989); Dedham Water Co. v. Cumberland Farms Dairy, 805 F.2d 1074, 1081 (1st Cir.1986). Accordingly, CERCLA authorizes the federal government to clean up hazardous waste dump sites and recover the cost of the effort from certain categories of responsible parties. Maryland Bank & Trust Co., 632 F.Supp. at 576. The parties liable for costs incurred by the government in responding to an environmental hazard are: 1) the present owners and operators of a facility where haz ardous wastes were released or are in danger of being released; 2) the owners or operators of a facility at the time the hazardous wastes were disposed; 3) the person or entity that arranged for the treatment or disposal of substances at the facility; and 4) the person or entity that transported the substances to the facility. Allis Chalmers, 893 F.2d at 1317; 42 U.S.C. § 9607(a) (1982 & West Supp.1988). The government contends" }, { "docid": "18439259", "title": "", "text": "is little doubt that Congress intended for those individuals who were responsible for creating the hazards from these wastes to bear the cost of clean up.”) Courts have faced two separate, though related, issues regarding the retroactive application of CERCLA. The first issue is whether responsible parties are liable under CERCLA for acts committed before enactment of the statute. The second issue is the one here presented—whether responsible parties are liable for government response costs incurred before CERCLA’s enactment. Relying on CERCLA’s overriding scheme and purpose, courts have had no difficulty in imposing liability on responsible parties for acts committed before enactment. United States v. South Carolina Recycling and Disposal, Inc., 20 E.R.C. 1753 (D.S.C. February 23, 1984); United States v. Conservation Chemical Co., 589 F.Supp. 59 (W.D.Mo.1984); United States v. Northeastern Pharmaceutical and Chemical Co., 579 F.Supp. 823; United States v. A & F Materials Company, Inc., 578 F.Supp. 1249 (S.D.Ill.1984); United States v. Price, 577 F.Supp. 1103 (D.N.J.1983); State of Ohio ex rel. Brown v. Georgeoff, 562 F.Supp. 1300; United States v. Outboard Marine Corp., 556 F.Supp. 54 (N.D.Ill.1982); United States v. Reilly Tar & Chemical Corp., 546 F.Supp. 1100 (D.Minn.1982); United States v. Wade, 546 F.Supp. 785 (E.D.Pa.1982) (off-site generators of wastes disposed of before CERCLA’s enactment liable under § 107 but not under § 106). In my view, the first issue is the more difficult issue of the two. Waste generators have argued that it violates due process to hold them liable under § 107(a) for acts committed before CERCLA’s enactment. This fairness argument is not frivolous—if they had known at the time they disposed of the wastes that they would one day be liable for the resulting environmental damage, some of them may have acted quite differently. Indeed it may have been significantly less expensive for them to have properly disposed of the wastes initially instead of cleaning up the disposal sites after the fact. Courts which have addressed these arguments have held that retroactive application of § 107(a) to pre-CERCLA conduct does not offend due process. United States v. South Carolina Recycling and Disposal," }, { "docid": "22579000", "title": "", "text": "other hazardous substances. CERCLA is a broad, remedial statute enacted by Congress in order to ensure “that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their actions.” Gen. Elec. Co. v. AAMCO Transmissions, Inc., 962 F.2d 281, 285 (2d Cir.1992) (quoting S.Rep. No. 96-848, at 13 (1980)). Under CERCLA, the Environmental Protection Agency (“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 responsible parties to undertake their own private cleanup efforts. Gen. Elec. Co., 962 F.2d at 285; 42 U.S.C. § 9606(a). There are several aspects of CERCLA of immediate relevance here: • “CERCLA is a strict liability-statute, one of the purposes of which is to shift the cost of cleaning up environmental harm from the taxpayers to the parties who benefited from the disposal of the wastes that caused the harm.” In re Bell Petroleum Servs., 3 F.3d 889, 897 (5th Cir.1993); see also United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1378 (8th Cir.1989). • CERCLA by its terms has unlimited retroactivity. Indeed, every court of appeals to consider the question has concluded that Congress intended CERCLA to apply retroactively. See, e.g., Northeastern Pharm., 810 F.2d at 732; Monsanto, 858 F.2d at 174. • While the statute does cap those costs that may be imposed on current and former owners and other potentially responsible parties, those caps are quite high. See 42 U.S.C. § 9607(c). For example, the liability for the release of a hazardous substance from a facility is “the total of all costs of response plus $50,000,000 for any damages .... ” § 9607(c)(1)(D). • Costs may be imposed on any current or former property owner or other potentially responsible party. See Monsanto, 858 F.2d at 167. Under CERCLA’s liability provision, responsible parties include those who arrange for the treatment of hazardous substances. A party may be liable under CERCLA for the arrangement for treatment of any “hazardous substances owned or" }, { "docid": "495513", "title": "", "text": "sites. Among other things, CERCLA provides a cause of action to recover “response costs” incurred in remedying an environmental hazard, 42 U.S.C. § 9607, and allows those liable for response costs to seek contribution from other liable parties, id. § 9613(f). A plaintiff must meet four elements to establish CERCLA liability: (1) that hazardous substances were disposed of at a “facility”; (2) that there has been a “release” or “threatened release” of hazardous substances from the facility into the environment; (3) that the release or threatened release has required or will require the expenditure of “response costs”; and (4) that the defendant falls within one of four categories of responsible parties. Id. § 9607(a); see United States v. Alcan Aluminum Corp., 964 F.2d 252, 258-59 (3d Cir.1992). If these requirements are met, responsible parties are liable for response costs regardless of their intent. See id. at 259 (“CERCLA imposes strict liability on responsible parties.”). The parties agree that the first three requirements are met. Their dispute con- eerns whether Dowel is a responsible party. CERCLA makes four classes of people liable for response costs or contribution: the current owner or operator of a facility, 42 U.S.C. § 9607(a)(1); any person who owned or operated the facility “at the time of disposal” of a hazardous substance, id. § 9607(a)(2); any person who arranged for disposal or treatment, or arranged for transport for disposal or treatment of hazardous substances at the facility, id. § 9607(a)(3); and any person who accepts or accepted hazardous substances for transport to sites selected by such person, id. § 9607(a)(4). HMAT contends that Dowel is liable as a person who owned or operated the facility “at the time of disposal” of a hazardous substance. CERCLA defines “disposal” by incorporating the definition used by the Resource Conservation and Recovery Act (RCRA). See id. § 9601(29) (“The terms ‘disposal’, ‘hazardous waste’, and ‘treatment’ shall have the meaning provided in section 1004 of the Solid Waste Disposal Act.”). Under RCRA, The term “disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste" }, { "docid": "23264352", "title": "", "text": "enacted CERCLA to address the “serious environmental and health risks posed by industrial pollution,” and CERCLA “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, — U.S. -, 129 S.Ct. 1870, 1874, 173 L.Ed.2d 812 (2009) (citation omitted). To accomplish this, CERCLA imposes strict liability for environmental contamination upon four broad classes of potentially responsible parties: (1) the owner and operator of a 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 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 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). This appeal concerns only the third category — whether Eby “arranged for disposal” of methanol, which the parties agree is a “hazardous substance.” CERCLA does not specifically define what it means to “arrang[e] for” the disposal of a hazardous substance. Accordingly, we must interpret that phrase according to its ordinary meaning. Burlington, 129 S.Ct. at 1879 (citation omitted). In Burlington, the Supreme Court addressed this very question with respect to a chemical supplier that had used common carriers to ship hazardous substances to its customers. See id. at 1875. During these shipments, leaks and spills of the chemicals often occurred, which the supplier knew about. See id. Because the supplier arranged the deliveries and knew that chemical" }, { "docid": "18439257", "title": "", "text": "Cong., 2d Sess. (1980) (hereafter “Senate Report”).) After recounting a number of environmental disasters, including Love Canal, the report concluded: “There is limited authority to solve these problems. Regulations promulgated in May under subtitle C of the Solid Waste Disposal Act [RCRA], which impose tough new standards for operating toxic waste disposal facilities, are expected to greatly upgrade the Nation’s active toxic waste disposal sites. But the regulations do not address those situations where an owner is unknown or is unable to pay the cleanup costs, nor do they address the clean up of spills, illegal dumping, or releases generally.” (Emphasis added.) Senate Report at 10-11. Thus, while pre-CERCLA law could prevent further pollution from the contemporary generation and disposal of hazardous wastes, it could not effectively abate the ongoing environmental deterioration resulting from wastes which had been dumped in the past. CERCLA was enacted to address these problems. It is by its very nature backward looking. Many of the human acts that have caused the pollution already had taken place before its enactment; physical and chemical processes are at their pernicious work, carrying destructive forces into the future. The decision was made in CERCLA to clean up these inactive hazardous waste sites. The next question was who should pay for the cleanup. Congress assigned to the categories of persons listed in § 107(a) the liability for all costs incurred in cleaning up hazardous waste sites. This liability scheme was enacted to assure “that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their actions.” (Senate Report at 13.) “[S]ociety should not bear the costs of protecting the public from hazards produced in the past by a generator, transporter, consumer, or dumpsite owner or operator who has profited or otherwise benefited from commerce involving these substances and now wishes to be insulated from any continuing responsibilities for the present hazards to society that have been created.” Senate Report at 98. See State of Ohio ex rel. Brown v. Georgeoff, 562 F.Supp. 1300, 1312 (N.D.Ohio 1983) (citing additional legislative history and concluding that “there" }, { "docid": "16077706", "title": "", "text": "HWMA apples retroactively. The liability portion of thé HWMA states: Any person who shah violate the provisions of this chapter through the transportation, storage, or disposal of hazardous wastes in a manner or location not authorized by this chapter or the rules and regulations promulgated pursuant hereto, or who shall have caused the unauthorized transportation, storage, or disposal of hazardous wastes shall be absolutely hable for the cost of containment, cleanup, restoration, and removal of the hazardous wastes, and for all damages, losses, or injuries, including environmental, which result directly or indirectly from the discharge. R.I.Gen.Laws § 23-19.1-22(a). The question is whether the legislature intended the phrase “shah have caused” to include parties who caused unauthorized disposal prior to the statute’s enactment. Although the verb was written in the past tense, this alone is not enough to reveal the legislature’s intention. See, e.g., Taylor, 908 F.Supp. at 104. However, in its recent drafting of IPRRA, the Rhode Island legislature shed considerable fight on its original intention in HWMA IPRRA’s liability section explicitly states: “the state of Rhode Island reaffirms the applicable provisions of chapter 23-19.1 [HWMA] ... and defines the following parties as responsible parties-” R.I.Gen. Laws § 23-19.14-6 (emphasis added). The explanation of IPRRA published by the Legislative Council states that, “This act [IPRRA] ... clarifies the environmental liability associated with spills and releases of hazardous materials.” R.I.S. 612, Ch. 95-187 (1995) (emphasis added). Clearly, the legislature intended the liability section of IPRRA to explain portions of HWMA that may have been unclear. Since IPRRA explicitly refers to previous owners as responsible parties, as discussed above, HWMA must also have been intended to cover past disposal and thus may be applied retroactively. Even if the Rhode Island legislature had not made clear its intent that HWMA apply retroactively, Defendants in this case may still be hable for unauthorized disposal of hazardous waste under HWMA HWMA defines disposal as “the discharge, deposit, injection, dumping, spilling, leaking, aban-doming, or placing of any hazardous waste in, on, into or onto any land, other surface, or budding, or into any water, stormwater system," } ]

[ { "docid": "22144673", "title": "", "text": "be descriptive, the applicant may proceed under § 1052(f) to assert that its mark, though descriptive, has acquired what is known as a secondary meaning and, if the applicant proves secondary meaning, it can secure registra tion. If the Patent and Trademark Office finds the mark suggestive on the other hand, it will grant registration without requiring proof of secondary meaning. The significance of registration without proof of secondary meaning in this case, as it is in any similar case, is that the Patent and Trademark Office has “concluded” that the mark or figure was not “ ‘merely descriptive’ ‘but suggestive’ ” and this “essential fact [i.e., the action of the Patent and Trademark Office] must be considered prima facie correct by a court in considering the validity of a trademark, or the prima facie evidence rule would be rendered ineffective,” Union Carbide Corp., 531 F.2d at 378; McGregor Doniger, Inc. Drizzle, Inc., 599 F.2d 1126, 1133 (2nd Cir.1979), since registration under those circumstances constitutes not only a determination by the Patent and Trademark Office that the term or word is suggestive but also operates to provide “prima facie evidence of the registrant’s right to use the mark,” Soweco v. Shell Oil Co., 617 F.2d at 1184, “endow[ing] it with a strong presumption of validity,” Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250, 1254 (9th Cir.1982). The presumption which registration thus gives the mark, though, does not preclude one charged with infringement from “collaterally attackpng] in an infringement action, either by way of an affirmative defense or by way of a counterclaim seeking cancellation of the registration,” if the mark has not become incontestable under § 1065(2), 15 U.S.C. § 1115(a), 15 U.S.C.; 1 Gilson, Trade Mark Protection and Practice, § 4.04, p. 4-33 (1984 ed.); Keebler Co. v. Rovira Biscuit Corp., 624 F.2d 366, 373 (1st Cir.1980). Registration, and the presumption it creates, however, as we have already observed, do, for purposes of suit, “shift the burden of proof from the plaintiff, who in a common law infringement action would have [had] to establish his right to exclusive use," } ]

[ { "docid": "7421406", "title": "", "text": "claim. Id. The plaintiffs proved at trial that' Microsoft possesses a dominant, persistent, and increasing share of the relevant market. Microsoft’s share of the worldwide market for Intel-compatible PC operating systems currently exceeds ninety-five percent, and the firm’s share would stand well above eighty percent even if the Mac OS were included in the market. Id. ¶ 35. The plaintiffs also proved that the applications barrier to entry protects Microsoft’s dominant market share. Id. ¶¶ 36-52. This barrier ensures that no Intel-compatible PC operating system other than Windows can attract significant consumer demand, and the barrier would operate to the same effect even if Microsoft held its prices substantially above the competitive level for a protracted period of time. Id. Together, the proof of dominant market share and the existence of a substantial barrier to effective entry create the presumption that Microsoft enjoys monopoly power. See United States v. AT & T Co., 524 F.Supp. 1336, 1347-48 (D.D.C. 1981) (“a persuasive showing ... that defendants have monopoly power through various barriers to entry, ... in combination with the evidence of market shares, suffice[s] at least to meet the government’s initial burden, and the burden is then appropriately placed upon defendants to rebut the existence and significance of barriers to entry”), quoted with approval in Southern Pac. Communications Co. v. AT & T Co., 740 F.2d 980, 1001-02 (D.C.Cir.1984). At trial, Microsoft attempted to rebut the presumption of monopoly power with evidence of both putative constraints on its ability to exercise such power and behavior of its own that is supposedly inconsistent with the possession of monopoly power. None of the purported constraints, however, actually deprive Microsoft of “the ability (1) to price substantially above the competitive level and (2) to persist in doing so for a significant period without erosion by new entry or expansion.” IIA Phillip E. Areeda, Herbert Hovenkamp & John L. Solow, Antitrust Law ¶ 501, at 86 (1995) (emphasis in original); see Findings ¶¶ 57-GO. Furthermore, neither Microsoft’s efforts at technical innovation nor its pricing behavior is inconsistent with the possession of monopoly power. Id. ¶¶" }, { "docid": "18071971", "title": "", "text": "was not complete until May 26, 1998. See Pl.'s Amend. Compl., Ex. A, Registration of Pl.’s \"Everlina Laurice” trademark. For the purposes of evaluating Defendants’ motion for summary judgment, the Court will construe all dates in the light most favorable to Plaintiff, and therefore will proceed under the assumption that Plaintiff's trademark was registered on January 9, 1997. In any case, the exact date that Plaintiff’s \"Everlina Laurice” mark was registered is not material to the disposition of this case. .It is unclear from Plaintiff’s complaint and the exhibits that Plaintiff has filed on what date this occurred. . Plaintiff did not argue that she needed discovery in order to reply to the motion for summary judgment. See Fed.R.Civ.P. 56(d). In fact, she filed a counterclaim, which the Court construes as a cross motion for summary judgment, based on the facts of record. See PL's Counterclaim, ECF No. 87. . Plaintiff appears to be suggesting in her response an alternative infringement theory by claiming that Defendants’ use of the domain name \"www.lauriceco.com” constitutes an infringement with Plaintiff’s trademark of \"Laurice.” PL's Resp. Mot. Summ. J., Ex. W, ECF No. 86-6. Plaintiff does not put forth any evidence or suggest that Defendant is using this domain name to market perfume. However, Plaintiff has provided a print out from \"register.com” that suggests that the domain name is owned by Defendant Laurice & Co., and that this ownership impedes Plaintiff's use of the \"Laurice” mark. See id., Ex. W3, ECF No. 86-6. . Defendants assert that they are entitled to summary judgment pursuant to Rule 56 because the undisputed factual record shows that \"Laurice & Co.” has only been utilized as a trade or business name, not a trademark, and thus negates the likelihood of confusion element required in Plaintiff’s various trademark infringement and unfair competition claims. See Defs.’ Mem. in Support of Mot. Summ. J., 6-8, ECF No. 83-1. The court agrees that the use of \"Laurice & Co.” as a trade name rather than a trademark is a relevant consideration when evaluating likelihood of confusion, but rejects the suggestion that such" }, { "docid": "10159881", "title": "", "text": "marks, and citation omitted). E. This Court’s “Prima Facie” Framework Does Not Comport With Supreme Court Precedent Although this court highlighted the dangers associated with the prima facie framework in Cyclobenzaprine, we have not diligently instructed trial courts to abandon the framework altogether. The time to do so has come. One commentator has stated that “Cyclobenzaprine was unrealistic” if it intended to ban district courts from making prima facie findings of obviousness pri- or to consideration of objective indicia. Chisum § 5.05.1 am not the first member of this court to state that such a ban is necessary. See Galderma Labs., L.P. v. Tolmar, Inc., 737 F.3d 731, 748 (Fed. Cir. 2013) (Newman, J., dissenting) (“[T]he proper analysis of obviousness under 35 U.S.C. § 103 requires that all evidence relevant to obviousness or nonobviousness be considered, and be considered collectively, without resort to presumptions of prima facie obviousness or burden-shifting”) (quotation marks omitted); Wm. Wrigley Jr. Co. v. Cadbury Adams USA LLC, 683 F.3d 1356, 1367 (Fed. Cir. 2012) (Newman, J., dissenting) (“The district court, holding that a prima facie case of obviousness was established on the prior art alone, shifted the burden of proof to the patentee to rebut the asserted, but improper, prima facie case with the evidence of commercial success and copying. This is a distortion of the burden of proof, which never leaves the challenger”). Objective indicia of non-obviousness must be considered from the outset, and the burden of proof should never leave the challenger. The purpose of our patent system is the promotion of the progress of science and useful arts. U.S. Const, art. 1, § 8, cl. 8. This purpose is undermined by premature findings of obviousness and over-invalidation of innovative patents. Novo Nordisk, 719 F.3d at 1365 (Newman, J., dissenting). The prima facie approach to obviousness jumbles the proper order of operations. “Prima facie” refers to evidence that is “[sjufficient to establish a fact.or raise a presumption unless disproved or rebutted.” Prima Facie, Black’s Law Dictionary (10th ed. 2014). Whether a party has made a prima facie case is a legal determination. See" }, { "docid": "664778", "title": "", "text": "must find that their use of BIGFOOT for track belt was not a token use. Token use is sporadic, casual, or transitory use not part of an ongoing program to commercially exploit the trademark. The number of sales is not conclusive, but there must be a bona fide attempt to establish a trade or a market in the trademarked product. ABANDONMENT No. 12 To find that Goodyear had the right of expansion from its use of BIGFOOT on snowmobile track to a trademark use of BIGFOOT for automobile tires, you must consider abandonment. The owner of a trademark may be considered to have abandoned his right to exclusive use of that trademark if he discontinues its use with an intent not to resume it. REGISTRATION No. 13 During the course of this trial there have been several witnesses who have mentioned applications for registration of trademarks with the United States Patent Office. There is in evidence exhibit 2437 which is a document showing that BIGFOOT was registered as a Goodyear trademark for snowmobile track on October 15, 1974. The legal effect of such registration is to create a presumption that the company owning the registration established a valid trademark for a product at the time of its first use with the product and that it has been and is in continuous use with that product. The date of first use of BIGFOOT by Goodyear for snowmobile track is shown on exhibit 2437 as October 22, 1973 and Goodyear filed the application for that registration on December 12, 1973. So, from this exhibit, it is presumed that Goodyear established BIGFOOT as a trademark for snowmobile track on October 22, 1973 and that it has continuously used this trademark for snowmobile track since that time and has the exclusive right to do so. This presumption can be rebutted by the evidence to the contrary and the jury is free to find that a registered trademark is not a valid trademark. Thus, from the evidence presented to you at this trial, you could find that Goodyear did not have a valid trademark for" }, { "docid": "3763961", "title": "", "text": "secrecy.” 12 Pa. Cons.Stat. Ann. § 5302 (2013). To the extent information is disclosed to the public, it does not constitute a trade secret. See generally Fishkin, 563 F.Supp.2d at 582. As Synthes expressly concedes that the Emerge Business Plan was disclosed, not only in Emerge’s business plans, drafts of the private placement memorandum, and investor PowerPoint presentations, but also in its public relations campaign and press releases, (Pis.’ Mem. Supp. Mot. Summ. J. 48), the Court does not find that the Emerge Business Plan constitutes a trade secret that falls within the ambit of the NDA. Second, as to Emerge’s name, logos, and slogans, the Court likewise finds that they are not “inventions” or “innovations” within the scope of the NDA for two reasons. Although the name and logo are trademarked, trademark law is concerned with “secnrfing] to the owner of the mark the goodwill of his business and ... protecting] the ability of consumers to distinguish among competing producers.” Park ’N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 198, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985). It is not designed for the same purpose as patent law, which “seeks to foster and reward invention” and to “promote[] disclosure of inventions to stimulate further innovation and ... permit the public to practice the invention once the patent expires.” Aronson v. Quick Point Pencil Co., 440 U.S. 257, 262, 99 S.Ct. 1096, 59 L.Ed.2d 296 (1979). Moreover, and perhaps more importantly, the Emerge name, logos, and slogans áre neither (a) along the lines of businesses, work or investigations of Synthes; (b) the result of any work Marotta did for Synthes; or (c) products made through the use of Synthes time, facilities or material. (Pis.’ Appx. 52.) Accordingly, under the plain terms of the NDA, these items are not assignable to Synthes. Third, Synthes offers no argument — let alone a plausible argument — as to how Emerge’s products of cannulated screws, drill bits, and guide wires constitute “inventions” or “technical or business innovations.” As Synthes and Emerge agree, Emerge’s products resulted from the reverse engineering of" }, { "docid": "9286794", "title": "", "text": "patent examination was-and still is-an imperfect way to separate the good patents from the bad. Resource constraints in the initial examination period inevitably result in erroneously granted patents. As a result of these problems, there was a perception that the public lacked confidence in the patent system, which in turn contributed to judicial skepticism about the USPTO's work. See S. Rep. No. 96-617, at 3, 14 (1980). Indeed, \"judicial opinions and commentaries from the time\" evince \"a fundamental lack of trust in the competency of the PTO to discover sources of relevant prior art and apply them properly under the statutory standards, particularly in the context of a confidential ex parte examination process.\" Mark D. Janis, Rethinking Reexamination: Toward A Viable Administrative Revocation System for U.S. Patent Law , 11 Harv. J.L. & Tech. 1, 9-10 (1997). This lack of confidence led to an undermining of the presumption of patent validity, as \"many courts treated the presumption of validity as coextensive with the presumption of administrative correctness.\" Id. at 12. Some kind of reexamination procedure was therefore desirable, particularly as to issues of anticipation and obviousness where prior art has always played a central role. \"After reexamination,\" the Commissioner testified, \"the presumptive validity of the patent as it leaves the reexamination process will be enhanced. The court will have greater confidence that the patent claims are of exactly the right scope and that any unpatentable original claims have been canceled.\" Industrial Innovation and Patent and Copyright Law Amendments: Hearing on H.R. 6033, H.R. 6934, H.R. 3806, and H.R. 2414 Before the Subcomm. on Courts, Civil Liberties & the Admin. of Justice of the H. Comm. on the Judiciary , 96th Cong. 580-81 (1981) (statement of Sidney A Diamond, Commissioner of Patents and Trademarks). Reexamination would allow the USPTO to cure its own errors, thereby improving patent quality, bolstering the presumption of patent validity, and restoring the public's and the judiciary's confidence in the USPTO. In 1980, Congress enacted the Reexamination Act and created ex parte reexamination, the first post-issuance proceeding to review patent validity. See Act of Dec. 12, 1980," }, { "docid": "6584956", "title": "", "text": "would be at cross-purposes with antitrust law.” United States v. Microsoft Corp., 147 F.3d 935, 948 (D.C.Cir.1998). To weigh the benefits of an improved product design against the resulting injuries to competitors is not just unwise, it is unadministrable. There are no criteria that courts can use to calculate the “right” amount of innovation, which would maximize social gains and minimize competitive injury. A seemingly minor technological improvement today can lead to much greater advances in the future. The balancing test proposed by plaintiffs would therefore require courts to weigh as-yet-unknown benefits against current competitive injuries. Our precedents and the precedents we have relied upon strongly counsel against such a test. See CalComp, 613 F.2d at 744; Foremost, 703 F.2d at 545-46; Berkey Photo, 603 F.2d at 286-87. Although one federal court of appeals has nominally included a balancing component in its test, it has not yet attempted to apply it. See United States v. Microsoft Corp., 253 F.3d 34, 59, 66-67 (D.C.Cir.2001) (including balancing as the last step of its test but not applying that step, either because the defendant had provided no justification for its product change or because the plaintiff had not rebutted the justification provided). Absent some form of coercive conduct by the monopolist, the ultimate worth of a genuine product improvement can be adequately judged only by the market itself. Berkey Photo, 603 F.2d at 287. B. Undisputed Evidence that OxiMax Was an Improvement In this case, it is undisputed that by placing a digital memory chip in the sensor and moving the calibration coefficients from the monitor to the sensor, Tyco made its new OxiMax system incompatible with generic sensors and harmed generic sensor manufacturers. We must therefore decide whether there remains a genuine issue that the OxiMax sensor design provided some new benefit to consumers and thus constituted an improvement. First, the United States Patent and Trademark Office found the OxiMax sensor design to be sufficiently innovative over the prior art to deserve a patent, and there is no allegation, much less proof, that the patent is invalid. Although, as the district court" }, { "docid": "2798466", "title": "", "text": "Boehringer’s inequitable conduct during its presentation of the ’563 and ’778 Patents to the USPO invalidates the ’563 Patent. Specifically, Schering argues that Boehringer’s failure to direct the Patent Office’s attention to the relevant prior art and provide the Patent Office with the pleadings, briefs and opinions of this Court from the’778 litigation amounted to inequitable conduct which invalidates the ’563 Patent. Scher-ing also argues that Boehringer’s inequitable conduct before the USPO in its prosecution of the ’778 Patent taints the ’563 patent rendering it unenforceable. Third, Schering argues that the ’563 Patent violates the written description requirement for a patent as articulated in 35 U.S.C. § 112 (hereinafter “section 112”) because, in part, the specification is limited to virus ATCC-YR2322 and does not support Boehringer’s broad generic claim. With respect to Boehringer’s showing of irreparable harm, Schering argues that Boehringer is not entitled to a presumption of irreparable harm because it has not made a strong showing of patent validity. Schering also argues that even if Boeh-ringer were entitled to this presumption, the presumption is more than adequately rebutted by Schering’s ability to compensate Boehringer in the event a finding of infringement is made. Schering also argues that as a matter of law this Court should reject Boehringer’s argument that its loss of market share and its reduction in research expenditures is irreparable harm. Finally, with respect to the last two factors under the relevant test for a preliminary injunction, Schering argues that the balance of hardships militates against an injunction and that the public interest does not favor an injunction. In response to Schering’s obviousness challenge, Boehringer argues that the pri- or art relied upon by Schering “relates only to ‘simian cells’ generally, with MA-104 cells receiving only parenthetical treatment,” PL Rep. Br. at p. 1, whereas the non-obvious innovation within Claim 3 is the growing of PRRS on M-104 cells, specifically. Id. Boehringer goes on to argue that the prior success growing viruses on MA-104 cells is restricted to the four examples shown by Schering which fails to satisfy the test set forth in section 103(a) and" }, { "docid": "20332370", "title": "", "text": "There are two inquiries here. As a threshold matter, REI must demonstrate “first use” of “Northeast” in conjunction with its trade shows. If REI can show first use, it then bears the burden of demonstrating that its mark is a valid service mark entitled to protection. i. First Use It is a “well-established principle that trademark rights are acquired and maintained through use of a particular mark.” ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 146 (2d Cir.2007). To claim any right in a particular mark, therefore, the party asserting the right must be “the first to use [the] mark to identify his goods or services in a given market.” Id. at 147; Hawaii-Pac. Apparel Grp., Inc. v. Cleveland Browns Football Co., 418 F.Supp.2d 501, 506 (S.D.N.Y.2006) (“It is therefore only the senior user of a mark that can bring a claim for trademark infringement ....” (citing Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 150 (2d Cir.1997))); see also Sengoku Works Ltd. v. RMC Int’l, Ltd., 96 F.3d 1217, 1219 (9th Cir.1996) (“It is axiomatic in trademark law that the standard test of ownership is priority of use.”). Defendants argue that REI cannot demonstrate first use of the “Northeast” mark in relation to automotive themed trade shows. (Defs.’ Mem. 9; Reply Mem. of Law in Further Supp. of Defs.’ Mot. for Summ. J. (“Defs.’ Reply”) 6-7; Defs.’ Surreply 3-4.) REI claims to have first used “Northeast” in relation to its trade shows in 1983 (McCarey Affirmation ¶¶ 3-4). However, the advertising flyers which REI has provided to demonstrate use of “Northeast” between 1983 and 1988 do not identify REI as the promoter or organizer of the trade shows. (PL’s Exs. A-D.) REI claims that its use of “Northeast” from 1983 to 1988 was through a “related company,” and thus that it can claim first use of “Northeast.” (Pl.’s 56.1 Counter-Statement ¶ 51; Pl.’s Sur-reply 5.) To rebut this point, Defendants have provided evidence demonstrating that AASP used the term “Northeast” to refer to its automotive trade show as early as 1985. (Defs.’ Ex. 146.) “[T]he Lanham Act" }, { "docid": "15816454", "title": "", "text": "1114(1) & False Designation of Origin or Sponsorship, 15 U.S.C. § 1125(a) In its second and third claims, plaintiff alleges trademark infringement and false origin based upon defendants’ use of their registered marks. These two provisions of the Lanham Act operate together to provide protections against the copying of registered and unregistered marks. The analysis under both statutes is almost identical. Brookfield Communications, Inc. v. West Coast Entm’t, 174 F.3d 1036, 1046 n. 8 (9th Cir.1999). Accordingly, they will be evaluated together. To demonstrate a violation under either provision, the plaintiff must point to a protectable interest in the mark and the likelihood of confusion. Id. i. Existence of Valid Protectable Trademark It appears that plaintiff owns a valid protectable trademark interest since plaintiff registered the marks with the Principal Register in the Patent and Trademark Office. See 15 U.S.C. §§ 1057(b); 1115(a) (specifying that such registration constitutes prima facie evidence of the validity of the registered mark and plaintiffs exclusive right to use the mark specified in the registration). Plaintiff has provided the certificates of registration for the symbol HUMMER, the Hummer Grill (comprising the vehicle’s nose and grill), and verification of the pending applications for registration of the trademarks for HI (used with original model) and H2 (relating to a newest version of the vehicle). (See Compl. (# 2) Exs. A & B.) Defendants do not rebut this presumption in their opposition. (Def.’s Resp. & Opp’n (#’s 17/18), at 4-5.) ii. Likelihood of Confusion The predominant concern is the likelihood of confusion between the competing products. The inquiry in this regard asks “whether the similarity of the marks is likely to confuse customers about the source of the products.” Brookfield Communications, Inc., 174 F.3d at 1053. The following factors are considered in determining whether a likelihood of confusion exists between related goods: (1) strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to be exercised by the purchaser; (7) defendant’s intent in selecting the" }, { "docid": "19130418", "title": "", "text": "clear dividing line between the consumer base for Verduras 8 and Frutas 8 products as opposed to V8 products, these two factors weigh in favor of Plaintiffs. C. Strength of Plaintiffs’ Mark Defendants do not dispute that “V8” is a very well-known and strong mark. However, Defendants do argue that “V8 Splash” is a less strong mark because its brand awareness on an unaided basis is less than ten percent and that “splash” is a descriptive term as applied to beverages. See Defs.’ Mem. in Opp’n at 19. However, as Plaintiffs point out, “splash” is not to be considered in isolation and its combination with the well-known “V8” mark make “V8 Splash” a strong mark deserving of broad protection. At oral argument, Defendants’ counsel argued that “V8” is a descriptive term such as “orange juice” or “grapefruit juice.” Defendants’ counsel asserted that “V8” has become simply a descriptive term for vegetable juice. The court disagrees. The evidence indicates that “V8” is a very strong mark and is not descriptive. See Saunders Decl. at Ex. A for patent and trademark registrations on “V8” held by Plaintiffs. It is precisely the strength of V8’s mark that enabled Plaintiffs to make a significant entry into the blended fruit juice market with ‘V8 Splash.” Such an obviously strong mark deserves broad protection. Defendants’ counsel also argued that its own use of “Verduras 8” was descriptive rather than used as a trademark. Referring to the “who are you/what are you” test developed in Filipino Yellow Pages v. Asian Journal Publications, 198 F.3d 1143, 1147 (9th Cir.1999), Defendants’ counsel stated that Verduras 8 was descriptive because it provided consumers with information as to what the product was rather than its maker or origin. The court finds that “Verduras 8” is not being used as a descriptive term but, rather, as a trademark. If “Verduras 8” were being used as a descriptor, it would be unnecessary to boldly print the phrase “blend of vegetable juices” on the opposite side of the can. In addition, the use of coloring and lettering and its central placement serves to highlight" }, { "docid": "3763960", "title": "", "text": "property protection. Moreover, nothing in the record suggests that the Emerge Business Plan could become assignable intellectual property. In an effort to avoid this conclusion, Synthes recites a litany of representations made by Emerge employees describing the Emerge business plan as the “first of its kind,” “unique,” “innovative,” and “game-changing,” to assert that the Emerge business plan is a “business innovation” subject to the NDA. It goes on to argue that the Defendants worked tirelessly to maintain the secrecy of their business plan, suggesting it had qualities of a trade secret. These very representations- that Emerge made to its customers and potential customers, however, deprive the Emerge Business Plan from being a trade secret. Under Pennsylvania law, a “trade secret” is “[information ... that (1) [derives independent economic value, actual or potential from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use [and] (2) [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” 12 Pa. Cons.Stat. Ann. § 5302 (2013). To the extent information is disclosed to the public, it does not constitute a trade secret. See generally Fishkin, 563 F.Supp.2d at 582. As Synthes expressly concedes that the Emerge Business Plan was disclosed, not only in Emerge’s business plans, drafts of the private placement memorandum, and investor PowerPoint presentations, but also in its public relations campaign and press releases, (Pis.’ Mem. Supp. Mot. Summ. J. 48), the Court does not find that the Emerge Business Plan constitutes a trade secret that falls within the ambit of the NDA. Second, as to Emerge’s name, logos, and slogans, the Court likewise finds that they are not “inventions” or “innovations” within the scope of the NDA for two reasons. Although the name and logo are trademarked, trademark law is concerned with “secnrfing] to the owner of the mark the goodwill of his business and ... protecting] the ability of consumers to distinguish among competing producers.” Park ’N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 198," }, { "docid": "15976333", "title": "", "text": "as a matter of law. Every element of the patent is old in the art. Thus, the patented combination of these elements — a driveable-flexible marker — must yield an unusual or surprising result to be upheld. We find it impossible to maintain that, in light of the teaching of the German patent, it would not have occurred to an inventor familiar with and skilled in the pertinent art to construct the Humphrey marker of reinforced fiberglass. Similarly, it is an obvious innovation, in view of the teachings of Trelleborg and Humphrey, to remove the longitudinal rib and accentuate the curve of the Rose-Schmanski “T” marker. Either innovation would yield a driveable-flexible marker virtually identical to the Schmanski marker. This evidence of obviousness is sufficiently strong to overcome the presumption of validity properly accorded to Claims 1, 12, 13, 17, and 18. The Schmanski patent is neither an unusual nor surprising advance in the art, and we accordingly hold it invalid because of obviousness. The verdict of patent infringement is hereby reversed. II Appellant claims that there is insufficient evidence to support the jury verdict that appellant is liable for violations of sections 32 and 43(a) of the Lanham Trademark Act, 15 U.S.C. §§ 1114, 1125(a). In issue here are the names or marks under which appellant and appellee market their respective highway markers. The question that we must decide is whether the marks create a likelihood of confusion such that “consumers viewing [one] mark would probably assume that the product it represents is associated with the source of a different product or service identified by [the other] mark.” Alpha Industries, Inc. v. Alpha Steel Tube & Shapes, Inc., 616 F.2d 440, 443 (9th Cir. 1980) (quoting Scott Paper Co. v. Scott’s Liquid Gold, Inc., 589 F.2d 1225, 1229 (3d Cir. 1978); accord Jockey Club, Inc. v. Jockey Club of Las Vegas, Inc., 595 F.2d 1167, 1168 (9th Cir. 1979) (quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 314 F.2d 149, 151-52 (9th Cir. 1963)). Though itself a question of law, this determination is based on six factual inquiries: (1)" }, { "docid": "19488021", "title": "", "text": "goods.\" Innovation Ventures, LLC v. N.V.E., Inc. , 694 F.3d 723, 730 (6th Cir. 2012) (quotation omitted). Think \"Old Spice\" products, which require a consumer to imagine how \"old spices\" smell. All three types of marks share this attribute: \"[T]heir intrinsic nature serves to identify a particular source of a product.\" Two Pesos , 505 U.S. at 768, 112 S.Ct. 2753. We can illustrate these concepts by reference to trademarks with respect to places and events-the context of today's case. As a general rule, the Lanham Act makes it difficult to trademark a geographic name, such as Manhattan, New York or Tawas, Michigan. The Act also makes it difficult to trademark purely descriptive terms, such as \"Boston Beer.\" Boston Beer Co. Ltd. P'ship v. Slesar Bros. Brewing Co. , 9 F.3d 175, 181 (1st Cir. 1993) ; see also 15 U.S.C. § 1052(e)(2) (prohibiting the registration of \"primarily geographically descriptive\" marks). But exceptions exist. A geographic name may acquire a secondary meaning among consumers that ties the name to a product. 2 McCarthy § 14:1. Think of \"Poland Spring\" bottled water, which in part comes from a spring in Poland, Maine but today refers to a single company's bottled water. Events that occur in a specific place, such as a festival, differ. A festival might feature just the name of the area that hosts it, say a concert in Woodstock, New York in 1969, making it more difficult to trademark. But a festival also can bear an arbitrary, fanciful, or suggestive name. Think of the \"Sundance Film Festival.\" When that happens, the festival's name earns trademark protection as an inherently distinctive mark. An entity may register a mark with the U.S. Patent and Trademark Office. Once registered, a mark becomes presumptively valid, see Wal-Mart , 529 U.S. at 209, 120 S.Ct. 1339, placing the burden of proof and production on anyone challenging the mark, see Fuji Kogyo Co. v. Pac. Bay Int'l, Inc. , 461 F.3d 675, 683 (6th Cir. 2006). The Trading Post has not rebutted that presumption. No matter how you slice it, the term \"Perchville\" is inherently" }, { "docid": "23120856", "title": "", "text": "Thomas claims that CLASSIC CAR WASH is merely a descriptive term, and thus warrants little or no protection. The District Court agreed with this argument calling the term CLASSIC \"an inherently weak mark.\" However, both Thomas and the District Court fail to take account of the decisions of the United States Patent and Trademark Office, which in both 1975, and 1983, determined that CLASSIC and CLASSIC CAR WASH were strong enough marks to deserve protection under the Lan-ham Act. The fact that these marks have been registered on the Principal Register of the United States Patent and Trademark Office constitutes \"prima facie evidence\" of the registrant's exclusive rights to use the mark on the goods or services specified in the registration. 15 U.S.C. § 1115(a). This means that the Patent and Trademark Office, on two separate occasions, considered these terms and found them to be sufficiently strong to be registered. Therefore, unless defendant can introduce evidence to rebut the presumption of the marks' validity, we will accept the conclusion of the agency which is entrusted with the duty of administering the Lanham Act, and which is undoubtedly expert in these matters. In attempting to meet this burden, Thomas argues that the mark CLASSIC CAR WASH is merely descriptive. A merely descriptive mark can only be protected if the owner can show that the term had developed a \"second zneaning\"-that the public identifies the trademark with a particular \"source\" rather than the product. J. McCarthy, § 11:5, supra. A mark is descriptive if it describes: the intended purpose, function or use of the goods; the size of the goods; the class of users of the goods; a desirable characteristic of the goods; or the end effect upon the user. Id. It seems clear that the term CLASSIC in CCWI's mark is designed to make the consumer think of the classic cars of the past, and not that they will somehow receive a classic wash at CCWI. The design of the mark, which includes a picture of a classic automobile, also supports this interpretation. The mark cannot be said to describe the" }, { "docid": "22251215", "title": "", "text": "may presumptively be attributed to the patented invention only where “ ‘the marketed product embodies the claimed features, and is coextensive with them.’ ” Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299, 1311-12 (Fed.Cir.2006) (quoting Brown & Williamson Tobacco Corp. v. Philip Morris Inc., 229 F.3d 1120, 1130 (Fed.Cir.2000)). Muniauction claims, for example, that legally appropriate praise in the form of an “Innovations in American Government” award to the City of Pittsburgh for its use of the Muniauction system tends to rebut any prima facie showing of obviousness. The press coverage of the award in the record, however, focuses on the availability of maturity-by-maturity bidding in the Muniauction system, as compared to the conventional all-or-none bidding. Although both auction types are disclosed in the written description of the '099 patent, see '099 patent col. 5 ll. 23-65, col. 13 ll. 31-33, claims 1 and 31 include conventional all-or-none bidding, as well as maturity-by-maturity bidding. Thus, the 1999 award lacks the required nexus with the scope of the claims. In addition, the same press coverage of the Innovations in American Government award also demonstrates that the source of much of the skepticism was the large investment banks who were advantaged by the existing all- or-none bidding system. This type of market-force skepticism also lacks the requisite nexus to the claimed invention. Finally, as to any remaining secondary considerations, the evidence is simply inadequate to overcome a final conclusion that independent claims 1 and 31 are obvious as a matter of law. Cf. Leapfrog, 485 F.3d at 1162 (“given the strength of the prima facie obviousness showing, the evidence on secondary considerations was inadequate to overcome a final conclusion that claim 25 would have been obvious”). In addition to independent claims 1 and 31, Mr. O’Neill also testified that elements of certain asserted dependent claims were also performed when an electronic bid was submitted using the Parity® system. In particular, O’Neill testified that Parity® met the limitations of claims 9, 14, 36, and 56. Accordingly, these claims are also obvious under our analysis of independent claims 1 and 31. Because we" }, { "docid": "2792221", "title": "", "text": "1326); see Rooths, 802 F.Supp.2d at 60 (“[t]he burden shifts to the defendant to rebut the plaintiff’s showing of ... reasonable hourly rates.”). In its cross-motion for summary judgment, however, the defendant attempts to place the burden on the plaintiff to justify the presumptively reasonable rates. See Def.’s Mem. Supp. Cross-Mot. Summ. J., (“Def.’s Mem.”) at 6, ECF No. 10-1. Spe cifically, the defendant erroneously argues that “[i]t is Plaintiffs burden to demonstrate that this due process hearing was sufficiently complex to merit the Laffey rate.” Id. This position is simply incorrect as a matter of law. In Covington, the D.C. Circuit made clear that the burden is not on the plaintiff but on the defendant, once the three parts of the SOCM test are met, to come forward with specific evidence as to why the presumptively reasonable rate should not apply. See Covington, 57 F.3d at 1109. In applying this standard, the defendant’s “evidence” is woefully inadequate. The defendant essentially makes one argument as to why the Laffey matrix rates should not apply in this matter: that the instant case “was not a complex matter” deserving of full Laffey rates. Def.’s Mem. at 7. While complexity is one of the factors that may be considered as part of the reasonableness of an attorney’s overall fee, see Thomas, 908 F.Supp.2d at 246-47,-it is not, in and of itself, sufficient to overcome the presumption that the claimed Laffey rates are reasonable. Indeed, Supreme Court precedent is clear that “the novelty and complexity of a case ... ‘presumably [is] fully reflected in the number of billable hours recorded by counsel.’ ” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010) (quoting Pennsylvania v. Del. Valley Citizens Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (second alteration in original)). The Perdue court went on to note that “when a trial judge awards an enhancement on an impressionistic basis, a major purpose of the lodestar method — providing an objective and reviewable basis for fees — is undermined.”" }, { "docid": "15609768", "title": "", "text": "Such extraneous factors include additional unclaimed features and external factors, such as improvements in marketing. See, e.g., Ecolochem, Inc. v. S. Cal. Edison Co., 227 F.3d 1361, 1378 (Fed. Cir. 2000) (applying presumption even though commercial embodiment had unclaimed mobility feature); Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299, 1312 (Fed. Cir. 2006) (holding that evidence that commercial success was due to unclaimed or non-novel features of device “clearly rebuts the presumption that [the commercial product’s] success was due to the claimed and novel features”). However, a patent challenger cannot successfully rebut the presumption with argument alone — it must present evidence. Brown & Williamson, 229 F.3d at 1130 (citing Demaco, 851 F.2d at 1393). At trial, WBIP presented evidence that specific products (i.e., Westerbeke’s Safe-CO gen-sets and Kohler’s accused products) are embodiments of the invention as claimed in the asserted claims. See Cross-Appellant’s Br. 45-47 (citing J.A. 15,191— 92, 15,195-200, 15,821-22, 17,279, 17,283, 17,287, 17,291, 17,295, 17,299, 17,303, 17,-307, 17,253). And its proffered objective evidence relates to these specific products. As Kohler agrees, WBIP presented evidence on five types of objective evidence of non-obviousness, all of which are tied to the claimed gen-sets achieving safe carbon monoxide levels. This evidence was: 1) the long-felt need for reducing carbon monoxide poisonings from marine gen-sets, Cross-Appellant’s Br. 34-35 (citing J.A. 17,915, 17,742, 17,204, 15,371-72, 15,478, 15,500-01, 15,448-52, 15,996-97); 2) industry skepticism that gen-sets producing exhaust substantially free of carbon monoxide could be produced, id. at 39-40 (citing J.A. 17,213-15, 15,373-75, 15,489-90); 3) industry praise of Westerbeke’s Safe-CO gen-sets, including winning the National Marine Manufacturers Association Innovation Award in 2004, id. at 40-41 (citing J.A. 15,562-68, 17,915, 17,252, 17,254-55); 4) Kohler’s copying of Westerbeke’s Safe-CO gen-sets following a 2004 boat show, id. at 41-43 (citing J.A. 15,375-77, 17,784-88, 17,813); and 5) the commercial success of low-carbon monoxide gen-sets, including Kohler’s gen-sets, that incorporate the patented technology, id. at 43^15 (citing J.A. 17,899, 16,003, 15,592-601, 17,785, 17,-915, 17,780, 17,782, 15,493-94, 15,569-70, 17,892). This showing — that the specific products are embodiments of the claimed invention and that the proffered objective evidence relates" }, { "docid": "22413864", "title": "", "text": "suit will not rebut the presumption of irreparable harm if the plaintiff does not know how severe the infringement is. See Clifford Ross Co. v. Nelvana, Ltd., 710 F.Supp. 517, 521 (S.D.N.Y.1989), aff'd without opinion, 883 F.2d 1022 (2d Cir.1989); see also Playboy Enters. v. Chuckleberry Publishing, 486 F.Supp. 414, 434-35 (S.D.N.Y.1980) (noting that “parties should not be encouraged to sue before a practical need to do so has been clearly demonstrated”). Similarly, a delay caused by a plaintiffs good faith efforts to investigate an infringement does not rebut the presumption of irreparable harm. See King v. Innovation Books, 976 F.2d 824, 831 (2d Cir.1992) (author’s eight-month delay in filing claim did not rebut presumption of irreparable harm because he spent that time trying to obtain a copy of the infringing screenplay and movie). In Fisher-Price, the plaintiff heard a rumor that infringing dolls were being sold in toy stores. It notified its sales force to search for the competitor’s doll, but the search was fruitless for some five months, and it sought an injunction approximately six months after first hearing the rumor. We held that this did not constitute unreasonable delay and that, accordingly, Fisher-Price deserved the presumption of irreparable harm. 25 F.3d at 125. The cases in which we have found that a delay rebutted the presumption of irreparable harm are trademark and copyright cases in which the fair inference was drawn that the owner of the mark or right had concluded that there was no infringement but later brought an action because of the strength of the commercial competition. See Majorica, 762 F.2d at 8 (plaintiff aware of conduct for several years prior to motion for preliminary injunction and did not seek injunction until seven months after suit was filed); Citibank, 756 F.2d at 276 (plaintiff waited more than ten weeks after learning directly, and nine months after learning through the press, of defendant bank’s plans to open a branch in its territory). In these cases, it appeared indisputable that the trademark or copyright owners were well aware of their rights and had concluded that they were" }, { "docid": "6584957", "title": "", "text": "that step, either because the defendant had provided no justification for its product change or because the plaintiff had not rebutted the justification provided). Absent some form of coercive conduct by the monopolist, the ultimate worth of a genuine product improvement can be adequately judged only by the market itself. Berkey Photo, 603 F.2d at 287. B. Undisputed Evidence that OxiMax Was an Improvement In this case, it is undisputed that by placing a digital memory chip in the sensor and moving the calibration coefficients from the monitor to the sensor, Tyco made its new OxiMax system incompatible with generic sensors and harmed generic sensor manufacturers. We must therefore decide whether there remains a genuine issue that the OxiMax sensor design provided some new benefit to consumers and thus constituted an improvement. First, the United States Patent and Trademark Office found the OxiMax sensor design to be sufficiently innovative over the prior art to deserve a patent, and there is no allegation, much less proof, that the patent is invalid. Although, as the district court properly noted, there is not a per se rule barring Section 2 liability on patented product innovation, the existence of a patent on a new product design is some evidence that the change is an im provement over previous designs. After all, “the proper amount of gains to innovation are left to Congress, who has the authority to vary the terms of patent protections, the point in time from which the protections run, or the scope of patentable innovations.” IIIB Areeda & Hovenkamp ¶ 777d at 311. Second, it is undisputed that Tyco’s new sensor design allows it to introduce new types of sensors without requiring its customers to purchase new monitors or reprogram their installed base of monitors. This added flexibility promotes the introduction of new types of sensors, such as Max-Fast, and reduces costs for consumers of pulse oximetry equipment. It also allows new functions, such as sensor event reporting and sensor messaging, to be included in the sensors themselves. Plaintiffs have provided evidence that Max-Fast is no more accurate than previous forehead" } ]

[ { "docid": "9359834", "title": "", "text": "at the PCR hearing, his own recollections of Tranti-no’s demeanor preclude the assertion that the Equanil dosage adversely affected petitioner’s demeanor before the jury. 408 F.Supp. at 486. Relief with respect to Claim (C) was properly denied by the district court. 2. Trantino’s Claim (D) encounters a more serious obstacle with respect to the exhaustion requirement. It will be recalled that the portion of Claim (D) that the district court decided on the merits alleges: [t]hat petitioner was denied the effective assistance of his own psychiatrists by the state’s failure to inform them of the psychoactive drugs he was taking. 408 F.Supp. at 480. In searching out the constitutional “substance” of this claim, the district court correctly concluded that petitioner claims that his rights to a fair trial under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), were violated. The asserted violation is the failure of the state to inform defense counsel and defense psychiatrists of petitioner’s regimen of psychoactive drugs. Id. In reviewing the record of the prior state proceedings, the district court made the following findings concerning the exhaustion requirement: The issues sought to be raised in allegation (D) were not presented to the state courts before, on direct appeal [See, R-14, R-21; State v. Trantino, 44 N.J. 358, 209 A.2d 117 (1965)]; on petitioner’s Motion for a New Trial [See, R-34 at 50-55; R-24; State v. Trantino, 45 N.J. 37, 211 A.2d 193 (1966)]; or in petitioner’s Petition for Post-Conviction Relief [See, R-34 at 144-178; R-29; State v. Trantino, 60 N.J. 176, 287 A.2d 177 (1972)]. Id. (brackets in original). Nothing in the district court’s opinion indicates that the finding of “non-exhaustion” as to Claim (D) as a whole does not apply to each issue found within that claim. Like the Fifth and Sixth Amendment claim, see note 15 supra, the Brady claim has not been raised in — let alone “fairly presented to” — the state courts. Not surprisingly, the failure by Trantino to exhaust Claim (D) was not lost upon the State. We learn from the district court opinion that" } ]

[ { "docid": "18446221", "title": "", "text": "401-403 [21 S.Ct. 210, 45 L.Ed. 249] (1900).” The state court record reveals that on September 27, 1973 the petitioner moved in the Delaware Superior Court for a new trial based on newly discovered evidence pursuant to Rule 33, Superior Court Criminal Rules. The particularized grounds of his motion were that from the time of the shooting on August 1, 1970 until January 1973 the whereabouts of Pierce were unknown but that he thereafter became available and willing to testify that the petitioner had acted in self-defense. Petitioner argued that Pierce’s testimony amounted to “newly discovered evidence” since he had exercised due diligence to locate Pierce without success prior to trial and that Pierce’s testimony, if presented, would likely cause the jury to come to a different verdict. The only mention of Pierce’s signed statement (of which petitioner claims he first became aware at the May 1, 1974 evidentiary hearing on his Rule 33 motion) was an argument that the statement confirmed the veracity of Pierce’s testimony given at the evidentiary hearing. No charge was made that the state wrongfully withheld the statement and no argument was advanced that petitioner’s constitutional rights had been violated. The focus of the entire proceedings was to obtain a new trial on the grounds that Pierce’s testimony constituted newly discovered evidence. Thus, it is clear that the substance of petitioner’s constitutional claim made here regarding Pierce’s statement was never fairly presented to the Superior Court. The Superior Court denied petitioner’s motion on the grounds that it was improbable that a different verdict would be rendered if a new trial were granted and Pierce testified at that trial. State v. Wilson, 233 Cr.A. ’70 (Del.Super., filed July 29, 1974). The petitioner appealed this ruling to the Supreme Court of Delaware. A letter brief from the public defender’s office was submitted to that court on the petitioner’s behalf. In that letter, while arguing that the Superior Court erred in holding Pierce’s testimony would probably not have altered the jury’s verdict, the public defender also contended that Pierce’s signed statement presented a Brady v. Maryland problem in" }, { "docid": "4088738", "title": "", "text": "respondent admitted that state remedies had been exhausted in the Return to the Petition for a Writ of Habeas Corpus, we do not find that the statutory requirement of exhaustion in 28 U.S.C. § 2254 can be waived by the State. United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1314, n. 1 (2d Cir.1975), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975); Davis v. Campbell, 608 F.2d 317, 320 (8th Cir.1979). The exhaustion issue is based upon the grounds that petitioner has repeatedly referred to two evidentiary matters in proceedings before this court which have never been presented to a court of the state of Connecticut for consideration in reviewing petitioner’s conviction. Specifically, respondent points to the failure of petitioner to raise upon appeal the potential testimony of two witnesses, Peter Schaffer and Rick Seraphin. Petitioner now alleges before this court that both persons were unavailable at trial as a direct result of his unduly lengthy pretrial incarceration. Respondent also argues that nowhere in his brief to the Connecticut Supreme Court did petitioner make reference to the State’s failure to provide in a timely fashion exculpatory statements of the witness, Jean Siretz. The United States Supreme Court in Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), mandated that to have exhausted State remedies a petitioner must have “fairly presented” to the State court the same claim that is the basis for his petition for habeas corpus. The Second Circuit has framed the issue raised by evidentiary omissions as whether additional facts “materially alter” the petitioner’s claim or “crucially affect” its determination such that petitioner must present this evidence to the State court before the federal court can entertain his petition. Anderson v. Casscles, 531 F.2d 682, 684 (2d Cir.1976). See also Twitty v. Smith, 614 F.2d 325, 327, n. 1, 331 (2d Cir.1979); United States ex rel. Cleveland v. Casscles, 479 F.2d 15, 20 (2d Cir.1973); United States ex rel. Carbone v. Manson, 447 F.Supp. 611, 618 (D.Conn.1978). In the instant case, the substance of petitioner’s argument" }, { "docid": "3995212", "title": "", "text": "of his jury instruction claim. In essence, petitioner sought another round of appellate review, and the Supreme Court of Florida properly declined to grant that unsanctioned opportunity. We therefore conclude that petitioner committed state procedural default and has foreclosed his right to federal review of his jury instruction claim, unless he can show cause for the default and actual prejudice resulting from the alleged constitutional violation. See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). B. The second and third components of petitioner’s mitigating evidence argument — his trial counsel incorrectly assumed that mitigating circumstances were limited to those listed in the statute and the trial court, in sentencing petitioner, considered only statutory mitigating evidence — were first raised after briefs were filed and oral argument was heard on direct appeal before the Supreme Court of Florida. Petitioner made those arguments for the first time more than a year and one-half after oral argument when he filed a supplemental brief, asking for a new sentencing hearing in order to present nonstatutory mitigating evidence. Ten days after petitioner filed his supplemental brief, the supreme court issued an opinion affirming petitioner’s conviction and sentence; the arguments made in petitioner’s supplemental brief were neither acknowledged nor addressed. We cannot presume that the supreme court’s silence indicates that it reached the merits of those arguments, because the Florida Appellate Rules made no provision for a “supplemental brief.” The rule in force during petitioner’s appeal provided for an appellant’s main brief, an appellee’s brief, and an appellant’s reply brief, but for no other briefs or appendices “except by special order of the appellate court.” Fla. App.Rules 3.7(d) (1962). Moreover, that rule states that “[s]uch assignments of error as are not argued in the briefs will be deemed abandoned and may not be argued orally.” Fla.App.Rules 3.7(i) (1962). In short, the Florida Appellate Rules made no provision for supplemental briefing of abandoned claims. In this case, petitioner wished to raise certain claims that he never addressed in his" }, { "docid": "11847533", "title": "", "text": "Digmon, 434 U.S. 332, 98 S.Ct. 597, 54 L.Ed.2d 582 (1978), clearly stated: “It is too obvious to merit extended discussion that whether the exhaustion requirement of 28 U.S.C. § 2254(b) has been satisfied cannot turn upon whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in petitioner’s brief in the state court, and, indeed, in this case, vigorously opposed in the State’s brief.” Id. at 333, 98 S.Ct. at 599. In this case, petitioner, Swanger, presented his claims to the state courts and gave them ample opportunities to consider them. That the state Superior Court, after a finding of waiver, chose not to reach the merits of two of petitioner’s claims does not mean that state remedies for those claims were not exhausted. Moreover, this is not a case in which the claims raised in the federal habeas corpus petition were similar, but not identical, to claims previously raised in state courts. See Santana v. Fenton, 685 F.2d 71, 74 (3d Cir.1982) (constitutional claim raised in federal court had not been “fairly presented” because, when argued to the state court, the claim was grounded exclusively on state law). Nor is this a case in which the claims raised in the petition were only indirectly presented to the state courts. See Moore v. Duckworth, 581 F.2d 639, 642-43 (7th Cir.1978), aff'd, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979) (“obligue” references to claims contained in a letter to state court did not constitute fair presentation of claims). Here the claims raised by Swanger in his petition for a writ of habeas corpus were identical to claims raised in, and briefed to, Pennsylvania’s Court of Common Pleas, Superior Court, and Supreme Court. As such, the claims were fairly presented to the state courts, with the result that available state remedies have been exhausted within the meaning of 28 U.S.C. § 2254(b)-(c). III. Procedural Default Petitioner contends that this court should conclude, not only that there has been exhaustion of state remedies, but also that, notwithstanding the Superior Court’s determination of waiver," }, { "docid": "10065865", "title": "", "text": "ON REQUEST FOR A CERTIFICATE OF PROBABLE CAUSE Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges. COFFIN, Chief Judge. Petitioner was arrested in Amherst, Massachusetts in October, 1971, and charged with drug offenses. In March, 1972, the Superior Court suppressed various controlled substances which had been seized during a search of the van in which petitioner had been riding when arrested. Upon the Commonwealth’s interlocutory appeal from this ruling, the Supreme Judicial Court reversed, holding that there was probable cause for the search and that there was justification for the failure to obtain a search warrant. Commonwealth v. Miller, 1974 Mass. Adv. Sh. 2139, 318 N.E.2d 909. Miller was thereupon tried and con victed; he began serving his sentence in February, 1975. His petition for bail pending appeal was denied. In August, 1975, petitioner brought his habeas corpus action in the district court, raising the same two claims — lack of probable cause and lack of justification for the failure to obtain a warrant — which had been directly presented to the Supreme Judicial Court. The parties appear to agree that these two specific claims have been properly exhausted, although the Commonwealth maintained below that the district court should nevertheless refuse to consider them until petitioner’s state court appeal, raising only trial issues, was concluded. In March, 1976, petitioner for the first time advanced a third claim in connection with the habeas proceeding. He argued that the Superior Court findings contradictory to the arresting officer’s testimony at the suppression hearing amounted to a finding of perjury on the officer’s part. This, he claimed, made suppression appropriate under the principles of United States v. Belculfine, 508 F.2d 58 (1st Cir.1974). Belculfine concerned government misstatements in search warrant affidavits, but petitioner argued that it applies a fortiori to testimony in support of warrantless searches, lest a disincentive to seeking warrants result. The district court correctly found that this issue had not been properly exhausted. A careful review of the briefs in the state courts makes clear that this argument— that suppression was required by the alleged perjury of the searching officer" }, { "docid": "17052279", "title": "", "text": "rel. Trantino v. Hatrack, 563 F.2d 86, 94 n. 17a (3d Cir.1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed.2d 524 (1978), wherein the exhaustion requirement was not met because the state courts \"had no opportunity—let alone a fair one” to decide petitioner’s Brady claim. In contrast to the Trantino decision, Landano clearly provided the state courts with an opportunity to decide his claim. This case is also distinguishable from Pitchess v. Davis, supra, 421 U.S. at 490, 95 S.Ct. at 1753, wherein the Supreme Court held that petitioner, after having previously obtained a conditional writ based on a Brady violation, had failed to exhaust with respect to the claim (that the underlying exculpatory material had been destroyed) which formed the basis for his application for an unconditional writ. In Pitchess, petitioner’s federal unexhausted claim was presented to the state court in a pretrial motion, the denial of which the petitioner sought to review prior to trial by means of unsuccessful extraordinary writs filed in state appellate courts. Id. at 484, 95 S.Ct. at 1750. Cf. Castille v. Peoples, 489 U.S.-, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) (raising new claim only to state’s highest court on discretionary review does not constitute fair presentation). In contrast to the Pitchess and Castille decisions, Landano raised his claim not in an extraordinary request for discretionary review but in consistent applications for post-conviction relief. Pitchess is further distinguishable from the present action in that the constitutional analysis regarding the destruction of evidence differs from the Brady analysis regarding the suppression of evidence. See Arizona v. Youngblood, — U.S.-, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Here, the court’s review of the newly asserted facts does not involve a different legal standard, as all of the facts considered by the court are facts relating to the suppression of exculpatory evidence in violation of Brady. . In light of the pattern of prosecutorial suppression of material, exculpatory evidence that has now been exposed after more than a decade, see infra" }, { "docid": "10065866", "title": "", "text": "Court. The parties appear to agree that these two specific claims have been properly exhausted, although the Commonwealth maintained below that the district court should nevertheless refuse to consider them until petitioner’s state court appeal, raising only trial issues, was concluded. In March, 1976, petitioner for the first time advanced a third claim in connection with the habeas proceeding. He argued that the Superior Court findings contradictory to the arresting officer’s testimony at the suppression hearing amounted to a finding of perjury on the officer’s part. This, he claimed, made suppression appropriate under the principles of United States v. Belculfine, 508 F.2d 58 (1st Cir.1974). Belculfine concerned government misstatements in search warrant affidavits, but petitioner argued that it applies a fortiori to testimony in support of warrantless searches, lest a disincentive to seeking warrants result. The district court correctly found that this issue had not been properly exhausted. A careful review of the briefs in the state courts makes clear that this argument— that suppression was required by the alleged perjury of the searching officer — was not raised in the interlocutory appeal proceeding. Petitioner protests that he presented all the facts necessary to support the claim, but this gains him nothing. Picard v. Connor, 404 U.S. 270, 277, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971), directly rejected an identical effort: “To be sure, respondent presented all the facts. Yet the constitutional claim [alleged to be] inherent in those facts was never brought to the attention of the state courts. The Supreme Judicial Court dealt with the arguments respondent offered; we cannot fault that court for failing also to consider sua sponte [the present constitutional ground].” There is no indication that petitioner will not be able to raise this issue in state court, either by injecting it into his pending appeal, or through state postconviction procedures. Confronted with a petitioner raising two exhausted claims and one claim which was not exhausted, the district court dismissed the entire petition, without prejudice. We think this was error. Although the propriety of dismissal under the circumstances was not briefed by the parties" }, { "docid": "17052278", "title": "", "text": "Cir.1988). . Since the court concludes infra at 644 that the exhaustion requirement has been met, Pitchess does not preclude the court from considering Landano’s Rule 60(b) application. . Rule 60(b) also requires that motions for relief under the rule be brought within a \"reasonable time\". What constitutes a \"reasonable time” under the rule is to be decided under the circumstances of each case. Delzona Corp. v. Sacks, 265 F.2d 157, 159 (3d Cir.1959). Given that the petitioner only recently became aware with any particularity of the exculpatory evidence set forth in the present application, the court concludes that the present motion was brought within a \"reasonable time” pursuant to Rule 60(b). . Patterson’s separate holding, that 28 U.S.C. Section 2254(d)’s presumption of factual correctness applies to mixed questions of law and fact was \"effectively overruled” by Miller v. Fen-ton, 474 U.S. 104, 108 n. 3, 106 S.Ct. 445, 448 n. 3, 88 L.Ed.2d 405 (1985). Carter v. Rafferty, 826 F.2d 1299, 1306 n. 2. . Thus, this case is distinguishable from United States ex rel. Trantino v. Hatrack, 563 F.2d 86, 94 n. 17a (3d Cir.1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed.2d 524 (1978), wherein the exhaustion requirement was not met because the state courts \"had no opportunity—let alone a fair one” to decide petitioner’s Brady claim. In contrast to the Trantino decision, Landano clearly provided the state courts with an opportunity to decide his claim. This case is also distinguishable from Pitchess v. Davis, supra, 421 U.S. at 490, 95 S.Ct. at 1753, wherein the Supreme Court held that petitioner, after having previously obtained a conditional writ based on a Brady violation, had failed to exhaust with respect to the claim (that the underlying exculpatory material had been destroyed) which formed the basis for his application for an unconditional writ. In Pitchess, petitioner’s federal unexhausted claim was presented to the state court in a pretrial motion, the denial of which the petitioner sought to review prior to trial by means of unsuccessful extraordinary writs filed in state appellate courts. Id. at 484, 95 S.Ct." }, { "docid": "9489882", "title": "", "text": "concerning the declaration against penal interest instruction to the New York Court of Appeals. See id. at 120 (finding that petitioner who raised one issue in his application for leave to appeal, without mentioning two other federal constitutional claims that were addressed in the attached Appellate Division brief, had not fairly presented the two other federal constitutional claims); see also Jordan v. Lefevre, 206 F.3d 196, 198-99 (2d Cir.2000) (“arguing one claim in his letter while attaching an appellate brief without explicitly alerting the state court to each claim raised does not fairly present such claims for purposes of the exhaustion requirement”). Thus, although unexhausted, this claim is now proeedurally barred because petitioner can no longer seek leave to appeal to the New York Court of Appeals. Petitioner makes neither a showing of cause and prejudice, nor a showing of actual innocence, and, as a result, this claim must be dismissed. Marshaling of the Evidence Petitioner’s final challenge to the jury charge is his claim that the trial judge unfairly marshaled the evidence in favor of the prosecution. Respondent argues that this claim is proeedurally barred because the New York State Supreme Court rejected it on an adequate and independent state ground. According to respondent, petitioner .initially raised this claim in a pro se motion to vacate his judgment of conviction pursuant to N.Y.Crim. Proc. Law § 440.10. I cannot agree that petitioner’s claim is proeedurally barred. The New York State Supreme Court denied petitioner’s Section 440.10 motion “for the reasons set forth in the answering affirmation of the District Attorney submitted in opposition.” However, the State opposed petitioner’s motion both on procedural grounds and on the merits, making the basis for the state court’s decision unclear. Absent a plain statement that the state court intended to rely upon state procedural grounds when it rejected petitioner’s claim, I am not precluded from addressing the merits. See Ortiz v. Keohane, CV-94-0124, 1995 WL 669904, *4 (E.D.N.Y. Nov.5, 1995) (state court that denied petitioner’s claim “for the reasons stated in the [P]eople’s responding papers” did not clearly and expressly base its decision" }, { "docid": "17328685", "title": "", "text": "find that at least two of the three ineffectiveness of counsel claims may not have been exhausted. We therefore will vacate the district court’s order insofar as it denies these claims on the merits and remand for further inquiry into the issue of exhaustion. A Rule 35 motion is the proper vehicle by which to bring ineffectiveness of counsel claims before the Delaware courts. See Collins v. State, 420 A.2d 170 (Del.1980); Casalvera v. State, 410 A.2d 1369 (Del. 1980). However, in the briefs to the Superior Court on the first Rule 35 motion, as well as on appeal from the denial of that motion to the Delaware Supreme Court, Reynolds framed his arguments solely in due process terms, referring both to the United States and Delaware Constitutions. Although the statement of the issue presented referred to counsel’s failure to request a mistrial, no reference was made in the brief to counsel’s failure to request a limiting instruction or to raise the issue on direct appeal. Nor was mention made in the brief of violations of Reynolds’s sixth amendment right to effective assistance of counsel. While discussing counsel’s performance at length, the Superior Court and the Supreme Court opinions focused only upon the Sykes cause and prejudice issue, and they never addressed ineffectiveness of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 205, 80 L.Ed.2d 674 (1984). The motives of Reynolds’s two trial attorneys, one of whom also represented him on direct appeal, were fully explored during the two hearings held in connection with the first Rule 35 motion. Thus, it is possible that all the evidence relevant to a determination whether counsel’s performance “fell below an objective standard of reasonableness,” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, has been adduced already. Neither state court made an explicit finding, however, regarding this issue. After the first round of Rule 35 proceedings, Reynolds filed a pro se Rule 35 motion in Delaware Superior Court alleging, inter alia, that his trial counsel was ineffective for failing to request a mistrial or limiting instruction. He did not, however, include" }, { "docid": "17476303", "title": "", "text": "claim of juror misconduct to the Supreme Court of Missouri, we think the circumstances are such that a collateral proceeding would be permitted by the state in order to comply with the requirements of Remmer v. United States, supra Although we normally will determine those issues which have been exhausted in the state courts, see Tyler v. Swenson, 483 F.2d 611, 614 (8th Cir. 1973), we think in the unusual circumstances of this case the state courts should be accorded an opportunity to conduct an evidentiary hearing under Rule 27.26, thus permitting a record to be made which can be reviewed under 28 U.S.C. § 2254(d), and avoiding piecemeal litigation of petitioner’s claims. See Tyler v. Swenson, supra, 440 F.2d at 624. Cf. Blunt v. Wolff, 501 F.2d 1138, 1141-42 (8th Cir. 1974). Prejudicial Delay In his petition, Eaton contends that the state magistrate postponed his preliminary hearing for 43 days during which time an important witness for the defense died. Only the fact of delay was raised by petitioner in his direct appeal to the Missouri Supreme Court, which held that he had “failed to demonstrate wherein he was prejudiced by the delay.” State v. Eaton, supra, 504 S.W.2d at 20. While the death of the ■witness and resulting prejudice to petitioner had been alleged in a motion for new trial, these allegations were not presented to the Missouri Supreme Court on direct appeal and it thus did not have before it for review the same issue which was presented to the District Court; nor was there a factual record from which the Missouri Supreme Court could have reviewed this claim on the merits. The requirement of exhaustion was therefore not satisfied. Withholding Favorable Evidence Petitioner’s claim that certain exculpatory fingerprint evidence was suppressed by the state during his trial was found by the Missouri Supreme Court to be not properly before it for appellate review “for the reason that it was not assigned as error in either of the two motions for new trial.” State v. Eaton, supra, 504 S.W.2d at 16. While Missouri Supreme Court Rule 27.26(b)(3)" }, { "docid": "23403198", "title": "", "text": "pro se supplemental brief for consideration. On this record, Holloway has met his burden of showing that he exhausted the Batson claim on direct appeal, as he placed the state court on notice of the factual and legal substance of his federal equal protection argument and raised the claim through the established system for review. Cf. Buehl v. Vaughn, 166 F.3d 163, 176 n. 8 (3d Cir.1999) (noting in a capital case that counseled petitioner exhausted claims by presenting them in a pro se brief to the Pennsylvania Supreme Court). The Commonwealth argues that we cannot rely on the testimony of Holloway’s direct appeal counsel because the District Court lacked authority under 28 U.S.C. § 2254(e)(2) to hold an evidentiary hearing. Appellees Br. at 55-57. This Court has held, however, that it is within a District Court’s authority to grant a hearing on a petitioner’s ability to establish cause to excuse a procedural default, and therefore § 2254(e)(2) is inapplicable to those hearings. Cristin v. Brennan, 281 F.3d 404, 412-13 (3d Cir.), cert. denied, 537 U.S. 897, 123 S.Ct. 195, 154 L.Ed.2d 166 (2002). Appellate counsel’s testimony regarding the direct appeal proceedings fell within the scope of the evidentiary hearing, which was conducted to determine whether there was any objective factor external to the defense that prevented counsel from pressing the Batson claim in the counseled direct appeal brief. Thus, the evidence adduced at the hearing is properly considered for purposes of the exhaustion analysis. Our conclusion that Holloway exhausted the Batson elaim by means of his pro se brief is fully supported by the Pennsylvania Supreme Court’s practice, at the time of Holloway’s appeal, of considering issues raised pro se even if counseled briefs were filed. In a capital case decided while Holloway’s direct appeal was pending, Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989), the Pennsylvania Supreme Court noted that appellate counsel neglected to raise an issue concerning the trial court’s failure to render an appropriate jury instruction. The appellant himself, however, raised a challenge on that basis in a pro se supplemental brief. Id. at" }, { "docid": "7928596", "title": "", "text": "leading to the conviction at issue. Recognizing that principles of federal-state comity must restrain unnecessary “[fjederal intrusions into state criminal trials,” Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982), the United States Supreme Court has held that the exhaustion requirement must be “rigorously enforced.” Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982); see also Santana v. Fenton, 685 F.2d 71, 77 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983). In order to exhaust state remedies, a petitioner must have raised in the state courts the factual and legal premises of the claims for relief he asserts in the federal proceeding. Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir.1986). “It is not enough that the petitioner presents to the state court the facts upon which a federal claim is based.” The claim must be substantially equivalent to that litigated in the state court. Both the legal theory and the facts supporting a federal claim must have been submitted to the state court. O’Halloran v. Ryan, 835 F.2d 506, 508 (3d Cir.1987) (citations omitted). In his habeas petition, plaintiff raises four specific complaints. First, petitioner claims the Superior Court erred by admitting evidence that the victim’s hymen was not intact. Second, petitioner claims the court improperly excluded evidence of the victim’s prior sexual activity. Third, petitioner challenges the court’s admission of the victim’s medical records. Fourth, petitioner alleges he was convicted on insufficient evidence. (D.I. 3, passim; D.I. 13) All four of petitioner’s grounds of complaint are predicated on alleged constitutional violations. When petitioner presented his appeal to the Delaware Supreme Court, however, he based his challenge to the Superior Court’s rulings on the admission or exclusion of the evidence referenced in the first three grounds solely on state evidentiary rules. (See D.I. 9 at Appellant’s Opening Brief) He has therefore not exhausted state remedies on these claims. Duncan v. Henry, — U.S.-,-, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995). Petitioner has an available state remedy, in Superior Court Rule" }, { "docid": "23490263", "title": "", "text": "participation in the murder scheme was to receive $1,000. Maree and Smith contacted Akins and lured him to the scene of the crime, ostensibly for the purpose of having Akins install a television antenna. On the arrival of Akins and his wife, Smith shot both of them with a shotgun at close range. For additional facts concerning Smith’s crime, trial, and conviction, see Smith v. State, 236 Ga. 12, 222 S.E.2d 308, cert. denied, 428 U.S. 910, 96 S.Ct. 3224, 49 L.Ed.2d 1219 (1976). . Before examining the merits of each of the issues raised by petitioner, we must address one contention argued throughout his brief. Smith asserts that the district court erroneously denied him a plenary hearing on the constitutional claims presented in his application for a writ of habeas corpus. First, we note that the district judge expressly stated that he would consider all evidence and authorities offered in support of petitioner’s motion for an evidentiary hearing in deciding the merits of the habeas corpus petition. The district judge also allowed the parties thirty days for filing any additional evidence or briefs. Record at 209. Although petitioner contends that at an oral hearing he would have presented new studies never considered by any court with respect to his claims, he does not explain why he was unable to submit these in documentary form to the magistrate during the thirty-day period granted. Furthermore, although Smith has not relied on 28 U.S.C. § 2254(d), we note that the district court’s refusal to hold an evidentiary hearing did not violate that section, which sets forth the circumstances under which a federal district court must hold a hearing on allegations in a habeas corpus petition. When ... it affirmatively appears from the petition that a petitioner is not entitled to the writ, an evidentiary hearing is unnecessary .... For example, if a petitioner’s habeas corpus allegations raise legal questions only, a district court’s refusal to hold an evidentiary hearing does not violate the directives of . . . Section 2254(d). Spinkellink v. Wainwright, 578 F.2d 582, 590 (5th Cir. 1978) (citations omitted)." }, { "docid": "11847532", "title": "", "text": "in the brief in support of his post-trial motions (see App. p. K-3). The trial court, in denying the post-trial motions, acknowledged that these two claims were raised. Moreover, the two claims were raised on appeal to the Superior Court. That the Superior Court stated in its opinion the reason it believed these claims had been waived demonstrates that the claims were presented to the Superior Court. Finally, petitioner presented these same two issues to the Pennsylvania Supreme Court in his petition for allowance of appeal (see App. p. L-10), which was ultimately denied. The magistrate apparently found significance in the fact that, although the two claims were briefed on appeal, the Superior Court did not discuss them in its opinion (see Supp.App. pp. 16, 18). Yet, discussion of a claim in an appellate court’s opinion is not necessary for exhaustion. Smith v. Digmon, 434 U.S. 332, 333, 98 S.Ct. 597, 598, 54 L.Ed.2d 582 (1978); United States ex rel. Geisler v. Walters, 510 F.2d 887, 892 (3d Cir.1975). The Supreme Court, in Smith v. Digmon, 434 U.S. 332, 98 S.Ct. 597, 54 L.Ed.2d 582 (1978), clearly stated: “It is too obvious to merit extended discussion that whether the exhaustion requirement of 28 U.S.C. § 2254(b) has been satisfied cannot turn upon whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in petitioner’s brief in the state court, and, indeed, in this case, vigorously opposed in the State’s brief.” Id. at 333, 98 S.Ct. at 599. In this case, petitioner, Swanger, presented his claims to the state courts and gave them ample opportunities to consider them. That the state Superior Court, after a finding of waiver, chose not to reach the merits of two of petitioner’s claims does not mean that state remedies for those claims were not exhausted. Moreover, this is not a case in which the claims raised in the federal habeas corpus petition were similar, but not identical, to claims previously raised in state courts. See Santana v. Fenton, 685 F.2d 71, 74 (3d Cir.1982) (constitutional claim raised in" }, { "docid": "732457", "title": "", "text": "motion to suppress his confessions was error. II. (A) Erroneous admission of unconstitutionally obtained evidence at trial was prejudicial. II. (B) The Court of Appeals reversibly erred where the evidence was seized under a search warrant which was based upon a misleading and recklessly inaccurate affidavit. III. The prosecution’s use of peremptory challenges to exclude blacks from the jury denied Petitioner an impartial trial by jury. Petitioner was granted leave to file a supplemental “reply” brief, People v. Boles, 413 Mich. 924 (1982), which re-stated in expanded form issues I and II of the first brief and added the following claim: There was no probable cause for Petitioner’s arrest and the confession was the result of the illegal arrest.' In addition, the “reply” brief alleged that: 1) Petitioner had not received a full and fair hearing on his Fourth Amendment claim, and 2) the Michigan Court of Appeals denied him due process by applying an erroneous legal standard to his Fourth Amendment claim. (Reply Brief, p. 28). The Michigan Supreme Court denied leave to appeal, stating: “the Court is not persuaded that the questions presented should be reviewed by this Court.” People v. Boles, 413 Mich. 924 (1982). Ill My review of the records of the state appellate proceedings summarized above leads to the following conclusions. A Petitioner has exhausted state court remedies as to five of the eight numbered claims in the petition. Issues 1 (coerced confession), 2 (unconstitutional search and seizure), 4 (violation of privilege against self-incrimination), and issue 7 (exclusion of blacks from jury) were all clearly presented to both the Michigan Supreme Court and Michigan Court of Appeals. While issue 3 (illegal arrest) was not raised as a separate issue in the Michigan Court of Appeals, that claim was presented to the Michigan Supreme Court in the supplemental brief which that court permitted him to file. I do not accept the view, advanced in Winegar v. Corrections Department, 435 F.Supp. 285, 289 (W.D.Mich.1978), that in order to satisfy the exhaustion of remedies requirement, a habeas petitioner challenging a Michigan conviction must always present his claim to" }, { "docid": "7928597", "title": "", "text": "have been submitted to the state court. O’Halloran v. Ryan, 835 F.2d 506, 508 (3d Cir.1987) (citations omitted). In his habeas petition, plaintiff raises four specific complaints. First, petitioner claims the Superior Court erred by admitting evidence that the victim’s hymen was not intact. Second, petitioner claims the court improperly excluded evidence of the victim’s prior sexual activity. Third, petitioner challenges the court’s admission of the victim’s medical records. Fourth, petitioner alleges he was convicted on insufficient evidence. (D.I. 3, passim; D.I. 13) All four of petitioner’s grounds of complaint are predicated on alleged constitutional violations. When petitioner presented his appeal to the Delaware Supreme Court, however, he based his challenge to the Superior Court’s rulings on the admission or exclusion of the evidence referenced in the first three grounds solely on state evidentiary rules. (See D.I. 9 at Appellant’s Opening Brief) He has therefore not exhausted state remedies on these claims. Duncan v. Henry, — U.S.-,-, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995). Petitioner has an available state remedy, in Superior Court Rule 61, which can be used to present his unexhausted claims to both the Delaware Superior and Supreme Courts. It appears that petitioner’s efforts to seek further state court review of his conviction will not necessarily be futile. Although petitioner’s motion for postconviction relief clearly would be time-barred by Rule 61(i)(l), and although failure to raise a claim in a previous postconviction motion bars consideration of the claim in a subsequent motion under Rule 61(i)(2), these “bars to relief ... shall not apply to ... a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.” Delaware Superior Court Ride 61(i)(5). In addition, a determination that the motion is barred by any provision of Rule 61(i) is appealable to the Delaware Supreme Court, at which time petitioner can present these claims to that court. See Reynolds v. Ellingsworth, 843 F.2d 712, 723-24 (3d Cir.), cert. denied, 488 U.S. 960, 109 S.Ct. 403, 102 L.Ed.2d" }, { "docid": "11847531", "title": "", "text": "by the Superior Court, need not be presented again to the state courts (this time under the PCHA) as a prerequisite to federal habeas corpus review (see Supp.App. p. 14). The magistrate erred, however, in concluding that state remedies for petitioner’s remaining two claims had not been exhausted because the merits of the claims were neither considered nor discussed by the Superior Court. The exhaustion requirement of 28 U.S.C. § 2254(b)-(c) has been judicially interpreted to mean that claims must have been presented to the state courts; they need not have been considered or discussed by those courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); United States ex rel. Geisler v. Walters, 510 F.2d 887, 892 (3d Cir.1975). As the Supreme Court stated in Picard v. Connor, \"... once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.” 404 U.S. at 275, 92 S.Ct. at 512. In the case at hand, petitioner’s two claims were presented to the trial court in the brief in support of his post-trial motions (see App. p. K-3). The trial court, in denying the post-trial motions, acknowledged that these two claims were raised. Moreover, the two claims were raised on appeal to the Superior Court. That the Superior Court stated in its opinion the reason it believed these claims had been waived demonstrates that the claims were presented to the Superior Court. Finally, petitioner presented these same two issues to the Pennsylvania Supreme Court in his petition for allowance of appeal (see App. p. L-10), which was ultimately denied. The magistrate apparently found significance in the fact that, although the two claims were briefed on appeal, the Superior Court did not discuss them in its opinion (see Supp.App. pp. 16, 18). Yet, discussion of a claim in an appellate court’s opinion is not necessary for exhaustion. Smith v. Digmon, 434 U.S. 332, 333, 98 S.Ct. 597, 598, 54 L.Ed.2d 582 (1978); United States ex rel. Geisler v. Walters, 510 F.2d 887, 892 (3d Cir.1975). The Supreme Court, in Smith v." }, { "docid": "22493333", "title": "", "text": "Beaudreaux's conviction was affirmed on direct appeal, and his first state habeas petition was denied. In 2013, Beaudreaux filed a second state habeas petition. He claimed, among other things, that his trial attorney was ineffective for failing to file a motion to suppress Esho's identification testimony. The California Court of Appeal summarily denied the petition, and the California Supreme Court denied review. Petitioner then filed a federal habeas petition, which the District Court denied. A divided panel of the Ninth Circuit reversed. The panel majority spent most of its opinion conducting a de novo analysis of the merits of the would-be suppression motion-relying in part on arguments and theories that Beaudreaux had not presented to the state court in his second state habeas petition. See App. to Pet. for Cert. 1a-7a; Record ER 153-ER 154. It first determined that counsel's failure to file the suppression motion constituted deficient performance. See App. to Pet. for Cert. 3a. The circumstances surrounding Esho's pretrial identification were \"unduly suggestive,\" according to the Ninth Circuit, because only Beaudreaux's picture was in both photo lineups. Id., at 4a. And, relying on Ninth Circuit precedent, the panel majority found that the preliminary hearing was unduly suggestive as well. Ibid. (quoting Johnson v. Sublett, 63 F.3d 926, 929 (C.A.9 1995) ). The panel majority next concluded that, under the totality of the circumstances, Esho's identification was not reliable enough to overcome the suggestiveness of the procedures. App. to Pet. for Cert. 5a. The panel majority then determined that counsel's failure to file the suppression motion prejudiced Beaudreaux, given the weakness of the State's case. Id., at 5a-6a. After conducting this de novo analysis of Beaudreaux's ineffectiveness claim, the panel majority asserted that the state court's denial of this claim was not just wrong, but objectively unreasonable under § 2254(d). See id., at 6a-7a. Judge Gould dissented. He argued that the state court could have reasonably concluded that Beaudreaux had failed to prove prejudice. Id., at 8a. The State of California petitioned for certiorari. II Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court" }, { "docid": "23233433", "title": "", "text": "was not raised and adjudicated in state court, the claim is not exhausted, and in any event, habeas relief on the basis of that claim is not compelled by any precedent existing at the time Green’s conviction and sentence became final. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); O’Dell v. Netherlands — U.S. -, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). V. Petitioner advances two claims as to why he was denied the effective assistance of counsel guaranteed by the Sixth Amendment and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both of these claims were raised and decided on the merits in state post-conviction relief proceedings, and therefore, under amended section 2254(d)(1), our role is simply to determine whether in either case the state court’s refusal to rule in Green’s favor constituted an unreasonable application of clearly established Supreme Court caselaw. In order to prevail upon either of his ineffective assistance of counsel claims under Strickland, Green must establish, first, that counsel’s performance was constitutionally deficient, and second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. 466 U.S. at 669, 104 S.Ct. at 2055-56. We conclude that in neither case did the state court unreasonably apply Strickland or any other applicable Supreme Court precedents. First, Green alleges that his counsel at the guilt-phase failed to investigate adequately the events surrounding his troubled childhood and failed to employ that information to prepare a diminished capacity defense for Green. Green further alleges that, if he had known about his colorable diminished capacity defense, then he would have gone to trial instead of pleading guilty, and would have been acquitted or convicted of a lesser offense. Petitioner thus claims that he was denied the effective assistance of counsel and that he is entitled to an evidentiary hearing. We disagree. Green has not demonstrated that his counsel’s representation fell below an objective standard of reasonableness. In his brief, Green contends that “trial counsel concede that despite the overwhelming available evidence, they never" } ]

[ { "docid": "11499327", "title": "", "text": "law fraud that do not implicate the mails (or the wires) do not constitute “racketeering activity” under the definition found within the RICO statute. Subsection 1961(1)(B). See New England Data Services, Inc. v. Becker, 829 F.2d 286, 291 (1st Cir.1987) (“In RICO, the plaintiff must go beyond a showing of fraud and state the time, place and content of the alleged mail and wire communication perpetrating that fraud.”). Our pivotal inquiry is thus limited to whether the alleged 95 fraudulent mailings are sufficient to set forth a pattern of racketeering activity. They formed such a pattern (a) if the mailings were related, and (b) if they amounted to, or posed a threat of, continued criminal activity. 2. Relatedness A plaintiff establishes that predicate acts are related by demonstrating that they “have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” H.J. Inc. v. Northwestern Bell Telephone Company, - U.S. -, 109 S.Ct. 2893, 2901, 106 L.Ed.2d 195 (1989) (quoting the Dangerous Special Offender Sentencing Act, 18 U.S.C. § 3575(e)). Here, the 95 fraudulent mailings alleged by Fleet are clearly related because they were all part of the same fraudulent scheme. See id. 109 S.Ct. at 2906 (plaintiffs satisfy the relatedness requirement because the “acts of bribery alleged are said to be related to a common purpose, to influence Commissioners in carrying out their duties in order to win approval of unfairly and unreasonably high rates for Northwestern Bell.”); Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262 (10th Cir.1989) (acts part of an alleged common scheme are related); George v. Blue Diamond Petroleum, 718 F.Supp. 539 (W.D.La.1989) (same). 3. Continued Criminal Activity The briefs and argument in the instant case suggest confusion as to H.J. ’s effect on the standard for determining whether predicate acts amount to, or pose a threat of, continued criminal activity. Prior to H.J., this court along with others had implicitly adopted (and the court below applied) a multi-factor, fact-intensive balancing test for determining whether a set of alleged predicate acts were continuous." } ]

[ { "docid": "22392562", "title": "", "text": "Since the complaint alleges numerous acts of mail fraud related to the common purpose of causing Kehr to default on its loans, the relatedness requirement is satisfied. But the amended complaint does not set forth acts that “amount to or pose the threat of continuing criminal activity.” Rather, as in Marshall-Silver and Banks, the allegations here involve a short-term attempt to force a single entity into bankruptcy, and contain no additional threat of continued criminal activity. Nor does this case involve a “long-term association that exists for criminal purposes.” See H.J. Inc., 492 U.S. at 243, 109 S.Ct. at 2902. We have established that the critical acts for purposes of the continuity analysis are the misrepresentations of Cohen and Noon. The same misrepresentations regarding the additional loan were repeated “numerous” times over an eight month period. H.J. Inc. holds that the actual or threatened duration of a scheme is an important factor in determining whether a defendant’s actions amount to long-term criminal activity. When mail fraud is alleged, the question of duration becomes more difficult. As we noted in Marshall-Silver, “[virtually every garden-variety fraud is accomplished through a series of wire or mail fraud acts that are ‘related’ by purpose and are spread over a period of at least several months.” 894 F.2d at 597. In this case, the length of the scheme as originally conceived was indeterminate, since it would depend on how long Kehr could survive without the promised $185,000 in additional working capital. The mailing of loan invoices could possibly have continued for seven years, the term of the longest loan. However, we do not place much emphasis on the fact that the mailings might have continued for years. As we have noted, a defendant’s deceptive actions are more im portant to the continuity analysis than otherwise innocent mailings. Thus, the relevant criminal conduct occurred during the initial eight month period, when the misrepresentations were made. We noted in Marshall-Silver that the duration of a scheme should not be afforded overriding significance “in the absence of a more significant societal threat.” Id. Since we found the scheme" }, { "docid": "11514191", "title": "", "text": "418 (3d Cir.1990). The injury occurred within an eight month period and there was no threat of “future misconduct by Wolk or Weiner.” Id. at 423. As to this closed-ended scheme, we held eight months was insufficient to show continuity. See Kehr Packages, Inc. v. Fidelcor, 926 F.2d 1406, 1418 (3d Cir.1991) (“eight-month period of fraudulent activity directed at a single entity does not constitute a pattern, absent a threat of future criminal acts”); Hindes v. Castle, 937 F.2d 868, 875 (3d Cir.1991) (eight month period failed to satisfy continuity). Contrasting Marshall-Silver, Banks, Kehr, and Hindes, we note that in H.J. Inc. the Court found that violations lasting six years were sufficient to show “substantial period of time” in a closed-ended scheme or, alternatively, to show regular way of doing business in an open-ended one. 492 U.S. at 250, 109 S.Ct. at 2906. In other circuits, only a period of years appears substantial. See Fleet Credit Corp. v. Sion, 893 F.2d 441, 447 (1st Cir.1990) (over four years); Walk v. Baltimore & Ohio R.R., 890 F.2d 688, 690 (4th Cir.1989) (ten years); Jacobson v. Cooper, 882 F.2d 717, 720 (2d Cir.1989) (unspecified “matter of years”); Dana Corp. v. Blue Cross & Blue Shield Mut. of N. Ohio, 900 F.2d 882, 887 (6th Cir.1990) (seventeen years). After H.J. Inc., we found continuity in two cases. Both were of the open-ended kind. That is, they involved a future threat of RICO violations. In Swistock v. Jones, we held that because plaintiffs alleged future violations as to “other potential transactions” plaintiff sufficiently raised the issue of whether fraud was the defendant’s regular way of doing business (though the predicate acts lasted only fourteen months). 884 F.2d 755 (3d Cir.1989). And in Banks, we found that some of the defendants, the Cohen brothers, used fraud as a regular way of doing business. 918 F.2d at 424. Thus as to the Cohen brothers, but not Wolk or Weiner, we found continuity. Plaintiffs identified the RICO violation as “fraudulent misrepresentations, threats and omissions ... [that resulted in plaintiffs selling] their property well below its true value.”" }, { "docid": "22392563", "title": "", "text": "As we noted in Marshall-Silver, “[virtually every garden-variety fraud is accomplished through a series of wire or mail fraud acts that are ‘related’ by purpose and are spread over a period of at least several months.” 894 F.2d at 597. In this case, the length of the scheme as originally conceived was indeterminate, since it would depend on how long Kehr could survive without the promised $185,000 in additional working capital. The mailing of loan invoices could possibly have continued for seven years, the term of the longest loan. However, we do not place much emphasis on the fact that the mailings might have continued for years. As we have noted, a defendant’s deceptive actions are more im portant to the continuity analysis than otherwise innocent mailings. Thus, the relevant criminal conduct occurred during the initial eight month period, when the misrepresentations were made. We noted in Marshall-Silver that the duration of a scheme should not be afforded overriding significance “in the absence of a more significant societal threat.” Id. Since we found the scheme in that case to be sufficiently short-term, we did not rely on this statement and need not embrace it at this time. But see United States Textiles, Inc. v. Anheuser-Busch Cos., 911 F.2d 1261, 1268-69 (7th Cir.1990) (adopting Marshall-Silver language). We do hold, however, that in determining the, duration of a scheme involving mail fraud, the relevant criminal conduct is the defendant’s deceptive or fraudulent activity, rather than otherwise innocent mailings that may continue for a long period of time. Cf. United States Textiles, 911 F.2d at 1268 (noting that each mail and wire fraud count “relates back” to initial extortions, and that duration of transaction at issue was “pure happenstance in light of the underlying concern which is the ‘continuity’ of the criminal activity”). We must apply a “natural and commonsense approach to RICO’s pattern element.” H.J. Inc., 492 U.S. at 237, 109 S.Ct. at 2899. Consequently, it should not be important that otherwise innocent mailings might continue long after the deceptive practices cease. If the term of the Kehr loans had been several" }, { "docid": "22392552", "title": "", "text": "(“the number of [mail or wire fraud] offenses is only tangentially related to the underlying fraud, and can be a matter of happenstance.”). In this case, the loan invoices sent to Kehr constitute the main basis for the mail fraud allegations. But the quantity of otherwise innocent invoices cannot by itself transform defendants’ alleged fraud into a RICO pattern. It should not be relevant, for example, that Fidelity sent invoices on a monthly basis, rather than quarterly or yearly. However, if a defendant committed numerous acts of deceit as part of multiple schemes or a single ongoing fraud, this fact would be relevant to the continuity question, although not necessarily dispositive. Moreover, it would be relevant if particular mailings, unlike those in this case, contained false or misleading statements or otherwise constituted separate deceptive acts. The importance of focusing in the continuity analysis on deceptive activity rather than otherwise innocent mailings is demonstrated by the holding in H.J. Inc. that continuity can be shown when “the predicate acts or offenses are part of an ongoing entity’s regular way of doing business.” 492 U.S. 229, 109 S.Ct. at 2902. In that case, separate bribes to different government officials sufficiently indicated that bribery was a regular way of doing business for the defendant. Id. 109 S.Ct. at 2906. Ip this case, if we were to focus only upon the mailings, we would necessarily conclude that sending invoices was a regular way of conducting Fidelity’s business. Such a holding would extend RICO’s scope to all allegations of mail fraud based upon two or more otherwise routine business mailings, a result we believe Congress did not intend. Rather, we must examine whether defendants’ underlying deceptive activities constitute a regular way of doing business. This question was not faced in H.J. Inc., since each bribe in that case independently constituted a criminal act, without reference to any underlying illegal scheme. At this time, we need not decide precisely which types or combinations of fraudulent actions will present the requisite continuity. But we note that the mailings in this case present a different situation from that" }, { "docid": "22392565", "title": "", "text": "decades rather than several years, it would not make the initial actions of Cohen and Noon any more deserving of RICO sanctions. Cf. Dana Corp. v. Blue Cross & Blue Shield, 900 F.2d 882, 887 (6th Cir.1990) (repeated fraudulent misrepresentations during seventeen year life of contract sufficient to state pattern). As in Marshall-Silver and Banks, an eight-month period of fraudulent activity directed at a single entity does not constitute a pattern, absent a threat of future criminal acts. This case, therefore, is unlike H.J. Inc., which involved six years of bribes directed at five members of a regulatory agency. The alleged bribes were numerous and varied, consisting of cash payments, job negotiations, and payments for meals and entertainment. See 492 U.S. at 233, 109 S.Ct. at 2897. Each separate bribe contributed to an ongoing scheme aimed at influencing future ratemaking decisions. This evidence led the Court to find sufficient indication that bribery was a regular way of doing business for the defendant. Besides the significant disparity in longevity between the schemes in H.J. Inc. and the present case, there are other salient differences. First, there is no apparent threat that the misrepresentations of Cohen and Noon would have continued past the time they left Fidelity. By contrast, the regulatory decisions involved in H.J. Inc. were a continuous part of the defendant’s business, and thus the bribes likely would have continued into the future. Unlike Swistock, the additional confirmatory misrepresentations of Cohen and Noon did not concern future transactions, and thus do not pose a threat of additional criminal activity. There is no indication that Cohen or Noon made other false statements to Kehr, or treated other customers in a similar manner. Consequently, the allegations in the amended complaint do not indicate that fraud was “a regular way of doing business” for any defendant. Cf. H.J. Inc., 492 U.S. at 242, 109 S.Ct. at 2902. Nor, as we have noted, does this case involve a “long-term association that exists for criminal purposes.” See id. Second, the bribes in H.J. Inc. were individually directed at five different officials. As we noted in" }, { "docid": "22392561", "title": "", "text": "calculated to deceive.”); see also Amended Complaint at (I 83 (unreasonable delay not alleged as misrepresentation in common law fraud count). We emphasize that the responsibility for determining the factual sufficiency of fraud allegations remains with the fact-finder. In this case, though, the allegations against Donnelly simply contain no indication of the deception or overreaching which the mail fraud statute requires. We also recognize that appellants possibly could have demonstrated at trial that Don-nelly was engaged in a common mail fraud scheme with Noon and Cohen. See, e.g., United States v. Camiel, 689 F.2d 31, 36 (3d Cir.1982) (mail fraud violation can be proved by showing common scheme rather than conspiratorial agreement). In this event, Donnelly would have been held liable for the misrepresentations of Cohen and Noon. But for purposes of RICO continuity, the separate allegations against Donnelly do not add to the criminal activity alleged against Cohen and Noon. VI. THE “PATTERN” ALLEGATION IN THIS CASE Plaintiffs in this case have not sufficiently alleged that defendants engaged in a “pattern of racketeering activity.” Since the complaint alleges numerous acts of mail fraud related to the common purpose of causing Kehr to default on its loans, the relatedness requirement is satisfied. But the amended complaint does not set forth acts that “amount to or pose the threat of continuing criminal activity.” Rather, as in Marshall-Silver and Banks, the allegations here involve a short-term attempt to force a single entity into bankruptcy, and contain no additional threat of continued criminal activity. Nor does this case involve a “long-term association that exists for criminal purposes.” See H.J. Inc., 492 U.S. at 243, 109 S.Ct. at 2902. We have established that the critical acts for purposes of the continuity analysis are the misrepresentations of Cohen and Noon. The same misrepresentations regarding the additional loan were repeated “numerous” times over an eight month period. H.J. Inc. holds that the actual or threatened duration of a scheme is an important factor in determining whether a defendant’s actions amount to long-term criminal activity. When mail fraud is alleged, the question of duration becomes more difficult." }, { "docid": "18652570", "title": "", "text": "proposition that continuity is both a closed- and open-ended concept. 492 U.S. at 241, 109 S.Ct. at 2901. As we have explained in our subsequent cases, “After H.J. Inc., we must focus on [the Barticheck ] factors as they bear upon the separate questions of continuity and relatedness.” Banks v. Wolk, 918 F.2d 418, 423 (3d Cir.1990); see also Marshall-Silver Constr. Co. v. Mendel, 894 F.2d 593, 595 n. 1 (3d Cir.1990) (all of the Barticheck factors, except the similarity of the acts, “remain, in greater and lesser degrees, relevant to the issue of continuity”). The post-H.J. Inc. eases decided by this court which have focused on pattern all make clear that duration is the sine qua non of continuity. While it is not in itself sufficient to establish a pattern, a determination that must be made in light of all the Barti-check factors, no pattern can be shown without the required duration. In Marshall-Silver Constr. Co. v. Mendel, 894 F.2d 593 (3d Cir.1990), there were allegations of acts of mail fraud and extortion spanning seven months related to a scheme to force a single business entity bankrupt. We affirmed the district court’s dismissal of the complaint after determining that “the allegations of the complaint ... reflect neither long-term criminal conduct nor the threat thereof.” Id. at 598. In Banks v. Wolk, 918 F.2d 418 (3d Cir.1990), the complaint alleged RICO claims against Wolk and Weiner based on alleged fraudulent statements made in furtherance of a scheme to defraud Banks out of his interest in a single piece of real estate. After determining that the injury to Banks occurred during an eight-month period and that there was no “indication of possible future misconduct by Wolk or Weiner,” id. at 423, we dismissed the RICO claims against Wolk and Weiner. See also Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1418 (3d Cir.) (fraudulent misrepresentations lasting over an eight-month period undertaken in order to defraud a single entity and threatening no future criminal activity failed to satisfy continuity requirement), cert. denied, — U.S.-, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991)." }, { "docid": "18652571", "title": "", "text": "seven months related to a scheme to force a single business entity bankrupt. We affirmed the district court’s dismissal of the complaint after determining that “the allegations of the complaint ... reflect neither long-term criminal conduct nor the threat thereof.” Id. at 598. In Banks v. Wolk, 918 F.2d 418 (3d Cir.1990), the complaint alleged RICO claims against Wolk and Weiner based on alleged fraudulent statements made in furtherance of a scheme to defraud Banks out of his interest in a single piece of real estate. After determining that the injury to Banks occurred during an eight-month period and that there was no “indication of possible future misconduct by Wolk or Weiner,” id. at 423, we dismissed the RICO claims against Wolk and Weiner. See also Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1418 (3d Cir.) (fraudulent misrepresentations lasting over an eight-month period undertaken in order to defraud a single entity and threatening no future criminal activity failed to satisfy continuity requirement), cert. denied, — U.S.-, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991). In the only post-H.J. Inc. cases in which we found the continuity requirement to be satisfied, there was the threat of continuing RICO activity. The complaint in Swistock v. Jones, 884 F.2d 755 (3d Cir.1989), contained allegations of mail fraud related to a real estate transaction. Although the predicate acts lasted approximately one year, the complaint also contained allegations of further “misrepresentations that defendants allegedly made in regard to other potential transactions.” Id. at 759. We said that these further allegations were sufficient to raise the issue of whether fraud was the defendant’s regular way of doing business. In Banks v. Wolk, we held that allegations of multiple fraudulent real estate schemes undertaken by the Cohen brothers demonstrated that fraud was their regular way of doing business. “As a consequence, a threat of continuing criminal behavior is present.” Banks, 918 F.2d at 424. The initial focus on duration as central to the continuity prong of a pattern of racketeering is impelled by the observation in H.J. Inc. that “Congress was concerned in RICO with long-term" }, { "docid": "22392564", "title": "", "text": "in that case to be sufficiently short-term, we did not rely on this statement and need not embrace it at this time. But see United States Textiles, Inc. v. Anheuser-Busch Cos., 911 F.2d 1261, 1268-69 (7th Cir.1990) (adopting Marshall-Silver language). We do hold, however, that in determining the, duration of a scheme involving mail fraud, the relevant criminal conduct is the defendant’s deceptive or fraudulent activity, rather than otherwise innocent mailings that may continue for a long period of time. Cf. United States Textiles, 911 F.2d at 1268 (noting that each mail and wire fraud count “relates back” to initial extortions, and that duration of transaction at issue was “pure happenstance in light of the underlying concern which is the ‘continuity’ of the criminal activity”). We must apply a “natural and commonsense approach to RICO’s pattern element.” H.J. Inc., 492 U.S. at 237, 109 S.Ct. at 2899. Consequently, it should not be important that otherwise innocent mailings might continue long after the deceptive practices cease. If the term of the Kehr loans had been several decades rather than several years, it would not make the initial actions of Cohen and Noon any more deserving of RICO sanctions. Cf. Dana Corp. v. Blue Cross & Blue Shield, 900 F.2d 882, 887 (6th Cir.1990) (repeated fraudulent misrepresentations during seventeen year life of contract sufficient to state pattern). As in Marshall-Silver and Banks, an eight-month period of fraudulent activity directed at a single entity does not constitute a pattern, absent a threat of future criminal acts. This case, therefore, is unlike H.J. Inc., which involved six years of bribes directed at five members of a regulatory agency. The alleged bribes were numerous and varied, consisting of cash payments, job negotiations, and payments for meals and entertainment. See 492 U.S. at 233, 109 S.Ct. at 2897. Each separate bribe contributed to an ongoing scheme aimed at influencing future ratemaking decisions. This evidence led the Court to find sufficient indication that bribery was a regular way of doing business for the defendant. Besides the significant disparity in longevity between the schemes in H.J. Inc. and" }, { "docid": "7466079", "title": "", "text": "viability of these considerations, post-#./. Inc., has been affirmed by the Third Circuit in several recent decisions, Kehr, supra, 926 F.2d at 1413 and Banks v. Wolk, 918 F.2d 418, 423 (3d Cir.1990) (“After H.J. Inc., we must focus on these factors as they bear upon the separate questions of continuity and relatedness.”) See also: Marshall-Silver Construction Co., Inc. v. Mendel, 894 F.2d 593, 597 (3d Cir.1990) (on remand from 492 U.S. 913, 109 S.Ct. 3233, 106 L.Ed.2d 582 (1989)) (“[I]f the [United States Supreme] Court ... intended that the duration of the predicate acts or the threat arising therefrom should be determinative without reference to whether the societal threat was limited to a single, one time injury, we would not have expected the Court to eschew providing a specific standard in favor of a fact oriented, case-by-case development.”) (Emphasis original) In a series of post-#./. Inc., decisions, the Third Circuit has considered whether the facts alleged satisfy the continuity component. In Kehr, Banks and Marshall-Silver, the court found continuity lacking. An examination of the facts of each and the Third Circuit analysis of the factors involved will be helpful. Kehr, supra, involved alleged misrepresentations made in connection with several business loans. Plaintiffs charged that the defendants had committed several acts of mail fraud in an attempt to cause Kehr to default on the loans. The Third Circuit affirmed the dis trict court’s dismissal of plaintiffs’ RICO claim on the ground that they were insufficient allegations of continuing or threatened future criminal activity. The court found that the acts alleged involved nothing beyond “a short-term attempt to force a single entity into bankruptcy” with no suggestion of any “long-term association that exists for criminal purposes.” Kehr, supra, 926 F.2d at 1417 (quoting H.J. Inc., supra, 109 S.Ct. at 2902). Banks, supra involved allegations that the defendants had covertly used an inside partner to lower the price of real estate they were attempting to purchase. Two of the defendants had been involved only in this scheme, while several others had allegedly been involved in prior fraudulent schemes of varying types. With" }, { "docid": "22948647", "title": "", "text": "proving a series of related predicates extending over a substantial period of time.” H.J., 492 U.S. at 242, 109 S.Ct. at 2902. Because RICO was intended by Congress to apply only to enduring criminal conduct, “[predicate acts extending over a few weeks or months ... do not satisfy this requirement.” Id. Under the “threat” approach, however, even where the predicate acts occur in a narrow time frame and suit is brought before the pattern has taken definitive shape, the requirement can still be satisfied by demonstrating a realistic prospect of continuity over an open-ended period yet to come. This approach necessitates a showing that “the racketeering acts themselves include a specific threat of repetition extending indefinitely into the future [or] ... are part of an ongoing entity’s regular way of doing business.” Id. Viewed against this backdrop, the allegations anent the 1986 episode fail to satisfy the continuity requirement. The conduct complained of, insofar as it involved the appellees, spanned no more than three to four months. The only factual allegations regarding Evans and the Swartz Firm concerned their representation of the plaintiffs at some twenty-five real estate closings between March and June of 1986. On the facts that appear of record, this is too short a period to support a claim that the appellees were engaged in the long-term criminal conduct at which RICO is aimed. See, e.g., Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1418 (3d Cir.) (eight-month period of fraudulent activity did not constitute a pattern, absent threat of future criminal acts), cert. denied, — U.S.-, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991); Parcoil Corp. v. Nowsco Well Service, Ltd., 887 F.2d 502, 503-05 (4th Cir.1989) (seventeen falsified reports sent over a period of four months did not establish continuity); Sutherland v. O’Malley, 882 F.2d 1196, 1204-05 (7th Cir.1989) (three acts of mail fraud within five months did not satisfy continuity plus relatedness requirement); see generally H.J., 492 U.S. at 242-43, 109 S.Ct. at 2902-03; Sion, 893 F.2d at 447. The allegations against Sweet and Carthage Federal are even weaker than those against Evans and" }, { "docid": "23084749", "title": "", "text": "3575(e)). The continuity element must be determined on a case-by-case basis. Id., 492 U.S. at 241, 109 S.Ct. at 2902. The Supreme Court in H.J. Inc. described continuity as “both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition.” Id. “It is, in either case, centrally a temporal concept____” Id. Where the predicate acts occurred over a closed period, the prosecutor must prove a series of related predicates extending over a “substantial period of time.” Id. We have eschewed the notion that continuity is solely a temporal concept, though duration remains the most significant factor. See Hindes v. Castle, 937 F.2d 868, 873 (3d Cir.1991); Marshall-Silver Constr. Co. v. Mendel, 894 F.2d 593, 596-97 (3d Cir.1990); see also Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1421 (3d Cir.) (Alito, J., concurring and dissenting), cert. denied, — U.S. -, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991). However, where there is no threat of continuing racketeering activity, “duration is the sine qua non of continuity.” Hindes, 937 F.2d at 873; see also id. at 875 (“unless these factors indicate a threat of continuing long-term racketeering activity occurring over a period of time, continuity depends on the actual duration of the predicates”). Continuity in an open-ended period, i.e. a period involving a series of predicate acts that project into the future, may be established by proving a threat of continuity, which exists where the predicate acts themselves involve threats of long-term racketeering activity, or where the predicate acts are part of an entity’s regular way of doing business. H.J. Inc., 492 U.S. at 242, 109 S.Ct. at 2902. Additionally, the factors identified in Barticheck v. Fidelity Union Bank/First Nat’l State, 832 F.2d 36, 39 (3d Cir.1987), “the number of unlawful acts, the length of time over which the acts were committed, the similarity of the acts, the number of victims, the number of perpetrators, and the character of the unlawful activity,” remain relevant after H.J. Inc. “as they bear" }, { "docid": "22392566", "title": "", "text": "the present case, there are other salient differences. First, there is no apparent threat that the misrepresentations of Cohen and Noon would have continued past the time they left Fidelity. By contrast, the regulatory decisions involved in H.J. Inc. were a continuous part of the defendant’s business, and thus the bribes likely would have continued into the future. Unlike Swistock, the additional confirmatory misrepresentations of Cohen and Noon did not concern future transactions, and thus do not pose a threat of additional criminal activity. There is no indication that Cohen or Noon made other false statements to Kehr, or treated other customers in a similar manner. Consequently, the allegations in the amended complaint do not indicate that fraud was “a regular way of doing business” for any defendant. Cf. H.J. Inc., 492 U.S. at 242, 109 S.Ct. at 2902. Nor, as we have noted, does this case involve a “long-term association that exists for criminal purposes.” See id. Second, the bribes in H.J. Inc. were individually directed at five different officials. As we noted in Swistock, the Supreme Court did not rely on the fact that the actual victims of the bribes — the telephone company’s customers — were numerous. See 884 F.2d at 758. However, it certainly should be relevant that the criminal activity was separately directed at several different people. Cf. Barticheck v. Fidelity Union Bank/First Nat’l State, 832 F.2d 36, 39 (3d Cir.1987) (“the scheme involved the repetition of similar misrepresentations to more than twenty investors”). In this case, the direct target of the criminal activity was a single entity. Kehr’s individual shareholders and guarantors, and the holders of pledged collateral, were affected only indirectly. Third, each bribe in H.J. Inc. separately contributed to the injury inflicted on the plaintiffs. Cf. Morgan v. Bank of Waukegan, 804 F.2d 970, 975 (7th Cir.1986) (“occurrence of distinct injuries” is factor in pattern analysis). In this case, the damage to plaintiffs was largely accomplished at the moment of settlement. Although the number of misrepresentations can be an important factor, the confirmatory misrepresentations made after settlement do not transform the actions" }, { "docid": "7466078", "title": "", "text": "length of time over which the criminal activity occurs or threatens to occur is a key factor. Kehr, supra, 926 F.2d at 1412. “Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct.” H.J. Inc., supra, 109 S.Ct. at 2902. Although the length of time over which the criminal activity occurs, or threatens to occur, is an important factor, it is not the only factor. Congress intended the courts to follow a natural and common-sense approach to RICO’s pattern element, and the Supreme Court has emphasized that analysis of continuity is fact-specific. In keeping with those principles, the Third Circuit has enumerated other factors relevant to the “pattern” inquiry — the number of unlawful acts, the similarity of the acts, the number of victims, the number of perpetrators, and the nature of the activities, and the character of the unlawful activity. Barticheck v. Fidelity Union Bank/First National State, 832 F.2d 36, 39 (3d Cir.1987). The continuing viability of these considerations, post-#./. Inc., has been affirmed by the Third Circuit in several recent decisions, Kehr, supra, 926 F.2d at 1413 and Banks v. Wolk, 918 F.2d 418, 423 (3d Cir.1990) (“After H.J. Inc., we must focus on these factors as they bear upon the separate questions of continuity and relatedness.”) See also: Marshall-Silver Construction Co., Inc. v. Mendel, 894 F.2d 593, 597 (3d Cir.1990) (on remand from 492 U.S. 913, 109 S.Ct. 3233, 106 L.Ed.2d 582 (1989)) (“[I]f the [United States Supreme] Court ... intended that the duration of the predicate acts or the threat arising therefrom should be determinative without reference to whether the societal threat was limited to a single, one time injury, we would not have expected the Court to eschew providing a specific standard in favor of a fact oriented, case-by-case development.”) (Emphasis original) In a series of post-#./. Inc., decisions, the Third Circuit has considered whether the facts alleged satisfy the continuity component. In Kehr, Banks and Marshall-Silver, the court found continuity lacking. An examination of the" }, { "docid": "7466080", "title": "", "text": "facts of each and the Third Circuit analysis of the factors involved will be helpful. Kehr, supra, involved alleged misrepresentations made in connection with several business loans. Plaintiffs charged that the defendants had committed several acts of mail fraud in an attempt to cause Kehr to default on the loans. The Third Circuit affirmed the dis trict court’s dismissal of plaintiffs’ RICO claim on the ground that they were insufficient allegations of continuing or threatened future criminal activity. The court found that the acts alleged involved nothing beyond “a short-term attempt to force a single entity into bankruptcy” with no suggestion of any “long-term association that exists for criminal purposes.” Kehr, supra, 926 F.2d at 1417 (quoting H.J. Inc., supra, 109 S.Ct. at 2902). Banks, supra involved allegations that the defendants had covertly used an inside partner to lower the price of real estate they were attempting to purchase. Two of the defendants had been involved only in this scheme, while several others had allegedly been involved in prior fraudulent schemes of varying types. With respect to the two defendants who had not been involved in any prior schemes, the district court found no basis for imposing RICO liability. The Third Circuit affirmed, based on evidence that the scheme involving the inside partner took place over an eight-month period, and was nothing more than “an attempt to defraud a single investor of his interest in a single piece of real estate over a relatively short period of time”, with no suggestion of any additional conduct that threatened long-term criminal activity. Banks, supra, 918 F.2d at 422. Marshall-Silver, supra, involved allegedly coercive attempts to pressure the plaintiff into paying a disputed debt. Among other things, defendants filed a fraudulent bankruptcy petition to force the plaintiff-company into involuntary bankruptcy. All of the coercive activities took place over a seven-month period. The Third Circuit affirmed the district court’s dismissal of plaintiff’s RICO claim, finding such conduct insufficient to satisfy the continuity requirement, and noting, in particular, that the “alleged illegal activity posed no threat of additional repeated criminal conduct over a significant period.”" }, { "docid": "22392567", "title": "", "text": "Swistock, the Supreme Court did not rely on the fact that the actual victims of the bribes — the telephone company’s customers — were numerous. See 884 F.2d at 758. However, it certainly should be relevant that the criminal activity was separately directed at several different people. Cf. Barticheck v. Fidelity Union Bank/First Nat’l State, 832 F.2d 36, 39 (3d Cir.1987) (“the scheme involved the repetition of similar misrepresentations to more than twenty investors”). In this case, the direct target of the criminal activity was a single entity. Kehr’s individual shareholders and guarantors, and the holders of pledged collateral, were affected only indirectly. Third, each bribe in H.J. Inc. separately contributed to the injury inflicted on the plaintiffs. Cf. Morgan v. Bank of Waukegan, 804 F.2d 970, 975 (7th Cir.1986) (“occurrence of distinct injuries” is factor in pattern analysis). In this case, the damage to plaintiffs was largely accomplished at the moment of settlement. Although the number of misrepresentations can be an important factor, the confirmatory misrepresentations made after settlement do not transform the actions of Cohen and Noon into a “pattern of racketeering activity.” There is no allegation that Kehr was caused to forgo additional financing because of the false confirmations; on the contrary, a buyer was found for Kehr after Cohen and Noon left Fidelity. Thus, the repeated misrepresentations did not contribute any injury additional to that already inflicted. Nor is it relevant that each loan payment constituted additional economic detriment to Kehr. Absent continuous long-term fraudulent activity, it is of little importance that a particular injury was inflicted over an extended period of time, rather than all at once. See United States Textiles, Inc. v. Anheuser-Busch Cos., 911 F.2d 1261, 1269 (7th Cir.1990) (“[Identical economic injuries ... stemming from a single contract were not the type of injuries which Congress intended to compensate via the civil provisions of RICO.”). VII. CONCLUSION Plaintiffs may have valid claims of common law fraud or breach of contract, but based on the allegations of the complaint and the proposed amended complaint, which we have assumed throughout are true, they cannot maintain" }, { "docid": "7466077", "title": "", "text": "on the specific facts of each case.” Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1412 (3d Cir.1991). The United States Supreme Court recently delineated what is necessary to satisfy the continuity component. In H.J. Inc., supra, 109 S.Ct. at 2901, the Court rejected the theory that a RICO pattern requires proof of defendants’ involvement in multiple criminal schemes and held that evidence of related predicate acts committed in furtherance of a single scheme may constitute a RICO pattern if those acts constitute or threaten long-term criminal activity. “Of course, not every single scheme comprising two or more predicate acts will constitute a pattern.” Kehr, supra, 926 F.2d at 1412. In this context, continuity signifies either (1) a closed period of repeated conduct, i.e. “a series of related predicates extending over a substantial period of time” or (2) “past conduct that by its nature projects into the future with a threat of repetition.” H.J. Inc., supra, 109 S.Ct. at 2902. The Supreme Court stressed that continuity is “centrally a temporal concept” and that the length of time over which the criminal activity occurs or threatens to occur is a key factor. Kehr, supra, 926 F.2d at 1412. “Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct.” H.J. Inc., supra, 109 S.Ct. at 2902. Although the length of time over which the criminal activity occurs, or threatens to occur, is an important factor, it is not the only factor. Congress intended the courts to follow a natural and common-sense approach to RICO’s pattern element, and the Supreme Court has emphasized that analysis of continuity is fact-specific. In keeping with those principles, the Third Circuit has enumerated other factors relevant to the “pattern” inquiry — the number of unlawful acts, the similarity of the acts, the number of victims, the number of perpetrators, and the nature of the activities, and the character of the unlawful activity. Barticheck v. Fidelity Union Bank/First National State, 832 F.2d 36, 39 (3d Cir.1987). The continuing" }, { "docid": "22392551", "title": "", "text": "determining continuity. Barticheck v. Fidelity Union Bank/First Nat’l State, 832 F.2d 36, 39 (3d Cir.1987). But the continuity question should not be affected by the fact that a particular fraudulent scheme involved numerous otherwise “innocent” mailings, rather than only a few. As the Court of Appeals for the Seventh Circuit recently has reaffirmed: Mail fraud and wire fraud are perhaps unique among the various sorts of “racketeering activity” possible under RICO in that the existence of a multiplicity of predicate acts (here, the mailings) may be no indication of the requisite continuity of the underlying fraudulent activity. Hartz v. Friedman, 919 F.2d 469, 473 (7th Cir.1990) (quoting Lipin Enters., Inc. v. Lee, 803 F.2d 322, 325 (7th Cir.1986) (Cudahy, J., concurring)). Accord United States Textiles, Inc. v. Anheuser-Busch Cos., 911 F.2d 1261, 1268 (7th Cir.1990); Sutherland v. O’Malley, 882 F.2d 1196, 1205 n. 8 (7th Cir.1989); International Data Bank, Ltd. v. Zepkin, 812 F.2d 149, 155 (4th Cir.1987) (decided before H.J. Inc.). See also Ashland Oil, Inc. v. Arnett, 875 F.2d 1271, 1278 (7th Cir.1989) (“the number of [mail or wire fraud] offenses is only tangentially related to the underlying fraud, and can be a matter of happenstance.”). In this case, the loan invoices sent to Kehr constitute the main basis for the mail fraud allegations. But the quantity of otherwise innocent invoices cannot by itself transform defendants’ alleged fraud into a RICO pattern. It should not be relevant, for example, that Fidelity sent invoices on a monthly basis, rather than quarterly or yearly. However, if a defendant committed numerous acts of deceit as part of multiple schemes or a single ongoing fraud, this fact would be relevant to the continuity question, although not necessarily dispositive. Moreover, it would be relevant if particular mailings, unlike those in this case, contained false or misleading statements or otherwise constituted separate deceptive acts. The importance of focusing in the continuity analysis on deceptive activity rather than otherwise innocent mailings is demonstrated by the holding in H.J. Inc. that continuity can be shown when “the predicate acts or offenses are part of an ongoing" }, { "docid": "11514190", "title": "", "text": "continuity is established (“open-ended” scheme), she must prove a “threat of continuity.” Id. A threat of continuity exists when the predicate acts are a part of defendant’s “regular way of doing business.” Id. That is, defendant operates a “long-term association that exists for criminal purposes.” Id. Though the Court provides the basic structure to analyze continuity, continuity depends ultimately on the “specific facts of each case.” Id. The Court openly invites lower courts to define it. Id. at 243, 109 S.Ct. at 2902 (“development of these concepts must await future cases”). In Marshall-Silver Constr. Co. v. Mendel, plaintiff alleged acts of mail fraud and extortion lasting seven months related to a scheme to force a single business entity bankrupt. 894 F.2d 593 (3d Cir.1990). We held that the span of seven months showed “neither ‘long-term’ criminal conduct nor the threat thereof.” Id. at 598. In Banks v. Wolk, plaintiff alleged that two of the defendants, Wolk and Weiner, misrepresented facts to defraud him of his interest in a single piece of real estate. 918 F.2d 418 (3d Cir.1990). The injury occurred within an eight month period and there was no threat of “future misconduct by Wolk or Weiner.” Id. at 423. As to this closed-ended scheme, we held eight months was insufficient to show continuity. See Kehr Packages, Inc. v. Fidelcor, 926 F.2d 1406, 1418 (3d Cir.1991) (“eight-month period of fraudulent activity directed at a single entity does not constitute a pattern, absent a threat of future criminal acts”); Hindes v. Castle, 937 F.2d 868, 875 (3d Cir.1991) (eight month period failed to satisfy continuity). Contrasting Marshall-Silver, Banks, Kehr, and Hindes, we note that in H.J. Inc. the Court found that violations lasting six years were sufficient to show “substantial period of time” in a closed-ended scheme or, alternatively, to show regular way of doing business in an open-ended one. 492 U.S. at 250, 109 S.Ct. at 2906. In other circuits, only a period of years appears substantial. See Fleet Credit Corp. v. Sion, 893 F.2d 441, 447 (1st Cir.1990) (over four years); Walk v. Baltimore & Ohio R.R., 890" }, { "docid": "18652576", "title": "", "text": "fraudulent solicitation of contributions ended with the election of Wolf in November 1988, and the alleged purpose of the scheme was achieved with the election of Wolf, the district court properly determined that there existed no threat of continuing racketeering activity. C. Hindes argues that in any event the period of time alleged was sufficient and that the district court’s holding, after it determined that there was no threat of continuing criminal activity, that a closed eight-month period of mail fraud “was not of sufficient duration to be considered a pattern,” App. at 22, was erroneous. He contends that when the extent of the racke teering activity is measured by the Barti-check factors, a sufficient pattern has been alleged. As we noted above, the Barticheck decision remains relevant to the pattern inquiry. See Banks v. Wolk, 918 F.2d at 423. However, unless these factors indicate a threat of continuing long-term racketeering activity occurring over a period of time, continuity depends on the actual duration of the predicates. Where, as in this case, there is no threat of continuing racketeering activity in the future, RICO requires a showing of “predicates extending over a substantial period of time.” H.J. Inc., 492 U.S. at 242, 109 S.Ct. at 2902. A large number of victims, acts, or perpetrators cannot substitute for this demonstration of “long-term criminal conduct.” Id. This court has explicitly held that predicates lasting over a comparable period of time with no threat of repetition do not satisfy continuity. See Marshall-Silver, 894 F.2d at 597 (complaint alleging predicates lasting seven months “is one of those cases expressly resolved by H.J. Inc., when the court observed: ‘Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy [the continuity] requirement.’ ” (citing H.J. Inc., 492 U.S. at 242, 109 S.Ct. at 2902)); see also Banks, 918 F.2d at 422-23 (eight-month period of predicates without a threat of continuing activity is insufficient); Kehr Packages, 926 F.2d at 1413 (same). We recognize the understandable desire of counsel and litigants for a litmus test by which duration can be" } ]

[ { "docid": "22848134", "title": "", "text": "S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). Since this motive or intent is seldom capable of proof by direct evidence, the Supreme Court has established a legal framework which allows a court to infer discriminatory motive on the basis of circumstantial evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981). The three-part test created by the Court requires, first, that the plaintiff establish a prima facie case of illegal discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Though the Court in McDonnell Douglas considered an allegation of discrimination in hiring, the elements deemed by the Court necessary to a prima facie showing of hiring discrimination have been modified and broadly applied to all types of illegal discrimination in the employment process. For example, this Court has interpreted the Supreme Court’s mandate to provide that a prima facie case of discrimination in termination is established where the plaintiff proves by a preponderance of the evidence that he or she is a member of a protected class, was qualified for the position held, and was discharged and replaced by a person outside of the protected class or was discharged while a person outside of the class with equal or lesser qualifications was retained. Lee v. Russell County Board of Education, 684 F.2d 769, 773 (11th Cir.1982). A similar burden has been imposed on plaintiffs seeking to establish a prima facie case of discrimination in promotion and retaliatory discharge. Once the plaintiff has established a prima facie case of discrimination, the burden shifts to the employer “to articulate some legitimate, non-discriminatory reason” for the alleged discriminatory action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the employer fails to meet this burden, the prima facie case of the plaintiff stands unrebutted, and judgment must be entered for the plaintiff as a matter of law. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. It is important to" } ]

[ { "docid": "447758", "title": "", "text": "a factfinder to disbelieve an employer’s proffered explanation for its actions, that alone is enough to preclude entry of judgment as a matter of law. Combs v. Plantation Patterns, 106 F.3d 1519, 1532 (11th Cir.1997), cert. denied, —- U.S. -, 118 S.Ct. 685, 139 L.Ed.2d 632 (1998). This circuit has adopted a variation of the test articulated by the Supreme Court for Title VII claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for cases arising under the ADEA. Mitchell v. Worldwide Underwriters Ins. Co., 967 F.2d 565, 566 (11th Cir.1992). In order to make out a prima facie case for an ADEA violation, the plaintiff must show that he (1) was a member of the protected age group, (2) was subject to adverse employment action, (3) was qualified to do the job, and (4) was replaced by a younger individual. See Benson v. Tocco, 113 F.3d 1203,1207-08 (11th Cir.1997). These criteria are slightly1 different in both an RIF case and where a position is eliminated in its entirety; in these instances, the plaintiff establishes a prima facie case by demonstrating (1) that he was in a protected age group and was adversely affected by an employment decision , (2) that he was qualified for his current position or to assume another position at the time of discharge, and (3) evidence by which a fact finder reasonably could conclude that the employer intended to discriminate on the basis of age in reaching that decision. Id. at 1208. A. Termination by Vitro Williams submits that the district court erred in finding that he had failed to demonstrate his qualification for a position at the time of the second RIF and, consistent with this determination, dismissing his claim against Vitro for failure to establish the second prong of his prima facie case. Vitro responds that, even assuming for purposes of this discussion that Williams properly established the requisite elements of his prima facie case, he has failed to rebut the legitimate, non-discriminatory reason proffered by Vitro to justify his termination. We conclude, at the" }, { "docid": "22709766", "title": "", "text": "courts of appeals, uses the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), to evaluate ADEA claims that are based upon circumstantial evidence of discrimination. See Reeves, 120 S.Ct. at 2105 (noting widespread use of the McDonnell Douglas framework in ADEA cases and assuming its applicability); Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir.1997). Under that framework, the plaintiff must first establish a prima facie case of discrimination. See Combs, 106 F.3d at 1527-28 (citations omitted). One method a plaintiff can use to establish a prima facie case for an ADEA violation is by showing that he (1) was a member of the protected age group, (2) was subjected to adverse employment action, (3) was qualified to do the job, and (4) was replaced by or otherwise lost a position to a younger individual. See Benson v. Tocco, Inc., 113 F.3d 1203, 1207-08 (11th Cir.1997). Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiffs evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case. Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S. at 254, 101 S.Ct. at 1094 (footnote omitted)). If a plaintiff establishes a prima facie case of discrimination, the defendant employer must articulate a legitimate, nondiscriminatory reason for the challenged employment action. See id. However, the employer’s burden is merely one of production; it “need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Id. at 1528 (quoting Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094 (citation and footnote omitted)). If the defendant articulates one or more such reasons, the presumption of discrimination" }, { "docid": "22470319", "title": "", "text": "employer “to fail or refuse to hire or to discharge any individual, or otherwise 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). Bass alleges that the County violated Title VII by refusing to hire him for the Training Instructor position because he is a non-Hispanic, white person. A plaintiff may establish a Title VII claim through the introduction of direct evidence of discrimination or through circumstantial evidence that creates an inference of discrimination. To evaluate Title VII claims based on circumstantial evidence, we use the familiar framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir.1997). Under this framework, the plaintiff must first establish a prima facie case of discrimination. See Combs, 106 F.3d at 1527-28 (citations omitted). In order to establish a prima facie case of race discrimination under Title VII, the plaintiff must show that: (1) he was qualified and applied for the position; (2) he was rejected despite his qualifications; and (3) other equally or less qualified employees who are not members of his race were hired. See Taylor v. Runyon, 175 F.3d 861, 866 (11th Cir.1999) (citing Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir.1988)). Once the plaintiff has made out a prima facie case of discrimination, the employer must articulate some legitimate, non-discriminatory reason for the employee’s rejection. See Wu, 847 F.2d at 1483-84. If the employer meets this burden of production, the plaintiff then must establish that each of the defendant’s proffered reasons for hiring someone of a different race is pretextual. See id. “[I]n cases of discrimination proven by direct evidence, it is incorrect to rely on the McDonnell Douglas test because, while circumstantial evidence is used to create an inference of discrimination under McDonnell Douglas, no such inference is required in the" }, { "docid": "15515713", "title": "", "text": "direct evidence, then the defendant must prove by a preponderance of the evidence that the same employment decision would have been made regardless of discriminatory intent; if, instead, the plaintiff offers circumstantial evidence, the plaintiff must first establish a prima-facie ease of discrimination and, if successful, the defendant must respond with legitimate, nondiscriminatory reasons for the adverse employment decision, which the plaintiff finally must discredit as pretextual. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330-31 (11th Cir.1998). Because Davis offers no direct evidence, the court will analyze this motion for summary judgment under the circumstantial-evidence' burden-shifting framework. A. Prima-facie Case for Racial Discrimination A plaintiffs prima-facie case for a discharge-discrimination claim must show the following elements: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the position at issue; (3) the plaintiff was discharged despite his qualification; and (4) the plaintiff was subject to differential treatment, that is, he was either (a) replaced by someone who was not a member of the plaintiffs protected class or (b) a similarly situated employee who was not a member of the protected class engaged in nearly identical conduct and was not discharged. Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th Cir.1984). These elements can have slightly more specific formulations according to the particular theory of discrimination alleged. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13, 93 S.Ct. 1817, 1824 n. 13, 36 L.Ed.2d 668 (1973) (“The facts necessarily will vary in [employment discrimination] cases, and the specification ... of the prima-facie proof required [for a particular theory’ of discrimination] is not necessarily applicable in every respect to differing factual situations.”). Qualico does not dispute that, because Davis is African-American, he is a member of a protected class. Qualico further does not dispute that Davis was qualified for the job. Davis and Qualico disagree over whether Davis was discharged. Because the evi dence must be viewed in the light most favorable to Davis, the court will assume that Davis was discharged, and the court will turn to the fourth requirement of" }, { "docid": "8713947", "title": "", "text": "not “qualified” for the position of corrections officer and thus could not make out a prima facie case of sex discrimination, and (2) the non-discriminatory reasons for her termination proffered by Lebanon were not pretextual. Warfield now appeals. II The United States Supreme Court set forth an evidentiary framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for analyzing cases alleging workplace discrimination based on circumstantial evidence. Under the McDonnell Douglas burden-shifting principle, a plaintiff bears the burden of establishing by a preponderance of the evidence a prima facie case and creating a presumption of discrimination by demonstrating: (1) membership in the protected class; (2) that she suffered an adverse action; (3) that she was qualified for the position; and (4) that she was replaced by someone outside the protected class or was treated differently from similarly situated members of the unprotected class. See Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir.1992) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). Once the plaintiff establishes a prima facie case, an inference of discrimination arises. The burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the plaintiffs discharge. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The plaintiff then assumes the final burden of proving that an employer’s articulated nondiscriminatory reason for taking an adverse action towards him was unlawfully pretextual. See Mitchell, 964 F.2d at 584 n. 6. The plaintiff must prove “that the [employer’s] asserted reasons have no basis in fact, that the reasons did not in fact motivate the discharge, or, if they were factors in the [employer’s] decision, that they were jointly insufficient to motivate the discharge.” Burns v. City of Columbus, 91 F.3d 836, 844 (6th Cir.1996). A. Prima facie case Warfield clearly meets criteria (1) and (2) for establishing a prima facie case of employment discrimination: she is female and was fired. The district court, however, held that she did not raise a genuine issue of material fact that she was “qualified” for the position of corrections" }, { "docid": "9917831", "title": "", "text": "The McDonnell Douglas Framework Where, as here, plaintiff offers no direct evidence of discrimination, plaintiff may indirectly prove discrimination under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, a plaintiff-employee carries the initial burden of production and must establish a prima facie case of discrimination. Id. If a plaintiff-employee does so, the burden then shifts to the defendant-employer, who “must then articulate a legitimate, nondiscriminatory reason for its actions.” Stella v. Mineta, 284 F.3d 135, 144 (D.C.Cir.2002) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If the defendant-employer successfully provides a valid reason, the burden shifts back to the plaintiff-employee, who “must then demonstrate that the employer’s stated reason was pre-textual and that the true reason was discriminatory.” Id. (citing McDonnell Douglas at 804, 93 S.Ct. 1817). To establish a generic prima facie case of unlawful discrimination, plaintiff must show that: (1) he is a member of a protected class; (2) he suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. Stella, 284 F.3d at 145. Importantly, the Supreme Court has specifically noted that the requisite prima facie proof will vary from one case to another, and the standard is meant to be flexible. McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. 1817; Bhatia v. AT & T, Inc., 310 F.Supp.2d 29, 31-32 (D.D.C.2004). If a plaintiff fails to establish any element of the prima facie case by a preponderance of the evidence, then his claim must necessarily fail and defendant is entitled to judgment as a matter of law. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 650 (D.C.Cir. 2003);. a. Plaintiff’s “Demotion” from Assistant Shift Supervisor To establish a prima facie case of discriminatory application of discipline, “plaintiff must demonstrate that (1) he is a member of a protected class; (2) he was similarly situated to an employee who" }, { "docid": "23362711", "title": "", "text": "blatant remarks whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination.” Id. (quotation marks omitted). In cases involving circumstantial evidence, we apply the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Supreme Court developed this framework because it recognized that “direct evidence of an employer’s motivation will often be unavailable or difficult to acquire.” Combs v. Plantation Patterns, 106 F.3d 1519, 1537 (11th Cir.1997) (quotation marks omitted). Thus, the burden-shifting scheme of McDonnell Douglas is a procedural device designed to help the parties progressively “sharpen the inquiry into the elusive factual question” of the employer’s motivations. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 n. 8, 101 S.Ct. 1089, 1095 n. 8, 67 L.Ed.2d 207 (1981). Under McDonnell Douglas, the plaintiff must initially establish a prima facie case, which generally consists of the following: 1) the plaintiff was a member of a protected class, 2) she was qualified to do the job, 3) she was subjected to an adverse employment action, and 4) similarly situated employees outside of the protected class were treated differently. See Wilson, 376 F.3d at 1087, 1091. The prima facie case serves the basic function of “eliminating] the most common nondiscriminatory reasons for the plaintiffs rejection” — namely, that the employee was not qualified for the position. Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1094. “The burden of establishing a prima facie case ... is not onerous.” Id. at 253, 101 S.Ct. at 1094. The prima facie case creates a presumption of discrimination, the role of which is to “forc[e] the defendant to come forward with some response.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993). Thus, once a plaintiff makes a prima facie case, “the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions.” Wilson, 376 F.3d at 1087. “The employer need not persuade the [finder of fact] that it was" }, { "docid": "618130", "title": "", "text": "on the basis of race, so the framework traditionally applied to Title VII claims also applies to a claim for violation of the Equal Protection Clause. See Lee v. Conecuh County Bd. of Educ., 634 F.2d 959, 962 (5th Cir.1981). Where, as here, the plaintiff seeks to prove intentional discrimination on the basis of race by using circumstantial evidence of intent, the court applies the framework first set out by the United States Supreme Court in McDonnell. Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, the plaintiff must establish a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. After the plaintiff has established a prima facie case of discrimination, the burden of production is placed upon the employer to articulate a legitimate nondiscriminatory reason for its employment action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The plaintiff then has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision. Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.1997). The plaintiff may seek to demonstrate that the proffered reason was not the true reason for the employment decision “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256, 101 S.Ct. 1089; Combs, 106 F.3d at 1534. In this case, Smith has characterized his claim as a failure to transfer on the basis of race. To establish a prima facie case of failure to transfer, Smith must show that he: (1) is a member of a protected class, (2) was qualified for the position, (3) suffered an adverse employment action, and (4) someone outside of the protected class was hired into the position. Hinson v. Clinch County, Georgia Bd. of Educ., 231 F.3d" }, { "docid": "20125538", "title": "", "text": "(§ 1981). Discriminatory intent can be established through either direct or circumstantial evidence. United States Postal Serv. Bd. of Gov. v. Aikens, 460 U.S. 711, 714 n. 3, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). After a thorough review of the pleadings and of the record, it appears to the court that Plaintiff is not arguing that there is direct evidence of discrimination. Although Plaintiff does not admit as much, all of his arguments are couched in terms of a circumstantial case. Where, as here, a plaintiff seeks to proved intentional discrimination through circumstantial evidence of the employer’s intent, the court applies the familiar tripartite burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green and Texas Dept. of Comm. Affairs v. Burdine. See 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under this framework, the plaintiff has the initial burden of establishing a prima facie case of discrimination. Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir.1997) (citations omitted). The purpose of the prima facie case is to show an adverse employment decision that resulted from a discriminatory motive. Perryman v. Johnson Products Co., 698 F.2d 1138, 1143 (11th Cir.1983). If the plaintiff meets this burden, he or she is entitled to a legal presumption that the defendant acted with discriminatory intent. Burdine, 450 U.S. at 254, 101 S.Ct. 1089; McDonnell Douglas, 411 U.S. at 792, 93 S.Ct. 1817. The effect of this presumption is to shift to the employer the burden of producing a legitimate, nondiscriminatory reason for the challenged employment action. Combs, 106 F.3d at 1528 (citations omitted). This intermediate burden is “exceedingly light.” Meeks v. Computer Assocs., Int'l, 15 F.3d 1013, 1019 (11th Cir.1994); Perryman, 698 F.2d at 1142; see also Turnes, 36 F.3d at 1061. The defendant “need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S. at 254-55, 101" }, { "docid": "15014166", "title": "", "text": "evidence which, “if believed, proves the existence of discriminatory motive ‘without inference or presumption’ ” Hamilton v. Montgomery County Bd. of Educ., 122 F.Supp.2d 1273, 1279 (M.D.Ala.2000) (quoting Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir.1998)). As the Middle District of Alabama explained: Not only must it be evidence of discriminatory ‘actions or statements of an employer’ but the actions or statements at issue must ‘correlat[e] to the discrimination or retaliation complained of by the employee.’ Further, the statements ‘must be made by a person involved in the challenged decision’ and must not be subject to varying reasonable interpretations. Id. (quoting Lane v. Ogden Entertainment, Inc., 13 F.Supp.2d 1261, 1274 (M.D.Ala.1998)). The court finds that none of the evidence submitted by plaintiff qualifies as direct evidence of racial discrimination in employment. Plaintiff has in fact offered very little evidence at all concerning racial discrimination. Plaintiff alleges that an employee called him “boy” on one occasion and asserts that he has been yelled at and unfairly written up. Clearly this does not constitute direct evidence of racial discrimination. Plaintiffs may attempt to show discrimination based on circumstantial evidence through the application of the McDonnell Douglas burden-shifting analysis established by the Supreme Court. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, a plaintiff must first raise an inference of discrimination by establishing a prima facie case. Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir.2000) (citing Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir.1997)). In order to make out a prima facie case of discriminatory termination on account of race, plaintiff must show: (1) he is a member of a protected class; (2) he suffered an adverse job action; (3) his employer treated similarly situated employees outside his classification more favorably; and (4) he was qualified to do the job. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997) (citations omitted).” Potts v. Conecuh-Monroe Counties Gas Dist., 2000 WL 1229838, *17 (S.D.Ala.2000) It is undisputed that plaintiff is a member of a" }, { "docid": "2543605", "title": "", "text": "broader § 1981 remedies and longer liability period). The test for intentional discrimination in suits under § 1981 is the same as that used in Title VII discriminatory treatment cases. Ferrill v. Parker Group, 168 F.3d 468 (11th Cir.1999). The plaintiff has the burden of establishing a prima facie case of employment discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This prima facie case can be established in any one of three ways: (1) by presenting direct evidence of discriminatory intent; (2) by presenting circumstantial evidence of discriminatory intent through the McDonnell Douglas test; or (3) by demonstrating through statistics a pattern of discrimination. Earley v. Champion International Corp., 907 F.2d 1077, 1081 (11th Cir.1990). Where the plaintiff wishes to prove a claim of discrimination through circumstantial rather than direct evidence, the court evaluates the claims using the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, the plaintiff must satisfy the initial burden under the statute by establishing a prima facie case of intentional discrimination. Smith v. Lockheed-Martin Corporation, 644 F.3d 1321, 1324-25 (11th Cir.2011). To do so, the plaintiff must show that (1) he is a member of a protected class (here, African-American); (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) his employer treated him less favorably than similarly situated individuals outside of his protected class. Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1264 (11th Cir.2010). With respect to this last showing, “the individuals must be similarly situated in all relevant respects besides race, since different treatment of dissimilarly situated persons does not violate civil rights laws.” Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1273-1274 (11th Cir.2004) (internal citations and quotation omitted). If the plaintiff is successful in proving a prima facie case, then a presumption of discrimination is raised and the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason" }, { "docid": "14059843", "title": "", "text": "concludes that this statement is not a statement of direct evidence of discrimination. Simply because Gullatte has not presented direct evidence of discrimination does not, however, mean that summary judgment is due to be granted. A plaintiff may also establish a claim for violation of § 1981 by using circumstantial evidence of discriminatory intent. Where the plaintiff seeks to prove intentional discrimination on the basis of race by using circumstantial evidence of intent, the court applies the framework first set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, the plaintiff must establish a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. After the plaintiff has established a prima facie case of discrimination, the burden of production is placed upon the employer to articulate a legitimate nondiscriminatory reason for its employment action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The plaintiff may seek to demonstrate that the proffered reason was not the true reason for the employment decision “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence,” Burdine, 450 U.S. at 256, 101 S.Ct. 1089; Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.1997). A plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. Reeves v. Sanderson Plumbing Products, Inc., — U.S. —, 120 S.Ct. 2097, — L.Ed.2d — (2000). To establish a prima facie case, Gullatte must show that he (1) is a member of a group protected by § 1981; (2) was qualified for the position; (3) suffered an adverse effect on his employment; and (4) suffered from differential application of work or disciplinary rules. Spivey v. Beverly Enterprises, 196 F.3d 1309 (11th Cir.1999). WestPoint Stevens contends that Gul-latte cannot establish the elements of a prima" }, { "docid": "13956750", "title": "", "text": "non-moving party, no genuine issue of material fact exists. Id. See also Fed.R.Civ. Pro. 56(c). We address each of Durley’s claims in turn. A. Title VII Sex Discrimination Durley asserts that APAC failed to promote her to the position of Purchasing Agent because of her gender. A Title VII plaintiff may prove her case by direct or circumstantial evidence. Combs v. Plantation Patterns, 106 F.3d 1519, 1527 (11th Cir.1997). Because Durley relies on circumstantial evidence to allege discrimination, we apply the analytical framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Accordingly, Durley bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. In other words, she must demonstrate that: (1) she is a member of the protected class; (2) she applied and was qualified for the position; (3) she was not hired; and (4) the position was awarded to an equally or less qualified employee who was not a member of the protected class. Alexander v. Fulton County, Ga., 207 F.3d 1303, 1339 (11th Cir.2000). Once a prima facie case is established, a presumption of unlawful discrimination is established. Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S. at 254, 101 S.Ct. at 1094). The burden then shifts to APAC to provide a legitimate, non-discriminatory reason for its hiring decision. Id. See also Chapman, 229 F.3d at 1024. If such a reason is articulated, the plaintiff then “has the opportunity to discredit the defendant’s proffered reasons for its decision.” Combs, 106 F.3d at 1528. In other words, Durley must provide sufficient evidence to raise a question of fact as to whether APAC’s proffered reason is pre-textual. Durley has established a prima facie case of employment discrimination, and APAC concedes that point. She is female, she applied for the position of Purchasing Agent, and Rapallo and Bair testified that she was qualified for the position of" }, { "docid": "2977757", "title": "", "text": "Whiting v. Jackson State Univ., 616 F.2d 116, 123 (5th Cir.1980)). We, therefore, discuss these claims under the same framework. A plaintiff may establish a claim of illegal disparate treatment through either direct evidence or circumstantial evidence. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir.2004) (citing Schoen-feld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir.1999)). Underwood alleges that the Commission and Paige discriminated against her based on her sex, but Underwood did not present any direct evidence of discrimination in support of her complaint. Underwood argues that circumstantial evidence supports her complaint. We use the framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), to evaluate a complaint of sex discrimination regarding a failure to hire when the complaint is supported by circumstantial evidence. Under this framework, the plaintiff first must establish a prima facie case of sex discrimination. See Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir.1997). To establish a prima facie case, the plaintiff must prove that (1) she is a member of a protected class, (2) she was qualified for a position and applied for it, (3) she was not considered for the position despite her qualifications, and (4) equally or less qualified individuals outside of her protected class were considered or hired for the position. See Wilson, 376 F.3d at 1087, 1089; Welbom v. Reynolds Metals Co., 810 F.2d 1026, 1028(llth Cir.1987). The prima facie case creates a rebuttable presumption that the employer acted illegally. Combs, 106 F.3d at 1528. “At that point, the burden shifts to the employer to articulate a legitimate, nondiseriminatory reason for [not hiring] the plaintiff .... If the employer does so, the burden shifts back to the plaintiff to introduce significantly probative evidence showing that the asserted reason is merely a pretext for discrimination.” Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1457 (11th Cir.1997) (quotations and citation omitted). B. Whether Underwood Established" }, { "docid": "15014167", "title": "", "text": "constitute direct evidence of racial discrimination. Plaintiffs may attempt to show discrimination based on circumstantial evidence through the application of the McDonnell Douglas burden-shifting analysis established by the Supreme Court. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, a plaintiff must first raise an inference of discrimination by establishing a prima facie case. Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir.2000) (citing Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir.1997)). In order to make out a prima facie case of discriminatory termination on account of race, plaintiff must show: (1) he is a member of a protected class; (2) he suffered an adverse job action; (3) his employer treated similarly situated employees outside his classification more favorably; and (4) he was qualified to do the job. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997) (citations omitted).” Potts v. Conecuh-Monroe Counties Gas Dist., 2000 WL 1229838, *17 (S.D.Ala.2000) It is undisputed that plaintiff is a member of a protected class. It is also undisputed that plaintiff was terminated, which is clearly an adverse job action. However, it is not at all clear whether plaintiff was qualified for the position. Plaintiff in fact claimed that he was unable to perform either the salesperson’s position or the cashier’s position considering the physical requirements inherent in those positions. Nor has plaintiff demonstrated that Home Depot treated similarly situated employees outside his classification more favorably. Plaintiff contends that he could not comply with the conditions of the salesperson or cashier position because he could not stand for more’ than an hour at a time and because he needed to take breaks to monitor his glucose level and go to the bathroom. Plaintiff also stated that he could not perform .the cashier work because of the light from the sun coming into the store where the cashiers are located. Plaintiff has also failed to demonstrate that Home' Depot treated similarly situated employees outside his classification more favorably. There is no evidence or reason to believe that the conditions" }, { "docid": "22211263", "title": "", "text": "Educ., 99 F.3d 1078, 1083 (11th Cir.1996)] (observing that a “ ‘plaintiff must, by either direct or circumstantial evidence, demonstrate by a preponderance of the evidence that the employer had a discriminatory intent’ ” to prove a disparate treatment claim) (quoting Batey v. Stone, 24 F.3d 1330, 1334 (11th Cir.1994)). “Direct evidence is evidence that establishes the existence of discriminatory intent behind the employment decision without any inference or presumption.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.1998) (citing Carter v. City of Miami, 870 F.2d 578, 580-81 (11th Cir.1989)). Absent direct evidence, a plaintiff may prove intentional discrimination through the familiar McDonnell Doug las paradigm for circumstantial evidence claims. Under the rubric of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), [[[t]o establish a prima facie case of discriminatory failure to promote, a plaintiff must prove: (1) that he is a member of a protected class; (2) that he was qualified for and applied for the promotion; (3) that he was rejected; and (4) that other equally or less qualified employees who were not members of the protected class were promoted.” Combs v. Plantation Patterns, 106 F.3d 1519, 1539 n. 11 (11th Cir.1997) (citing Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir.1988)). Once these elements are established, the defendant has the burden of producing a legitimate, non-discriminatory reason for the challenged employment action. See, e.g., Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir.1997) (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). If such a reason is produced, a plaintiff then has the ultimate burden of proving the reason to be a pretext for unlawful discrimination. See, e.g., Holifield, 115 F.3d at 1565; Combs, 106 F.3d at 1528 (plaintiff “has the opportunity to discredit the defendant’s proffered reasons for its decision”). In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000), the Supreme Court explained that “a plaintiffs prima facie case, combined with sufficient evidence to find that the" }, { "docid": "22629870", "title": "", "text": "a statement by the decisionmaker that he wanted a black person to have a white employee’s job was direct evidence that the white employee was terminated for racially discriminatory reasons. 71 F.3d 837, 842-43 (11th Cir.1996). We also found direct evidence of discrimination in Haynes v. W.C. Caye & Co., Inc., where the decisionmaker stated that women were simply not tough enough to do the job from which the plaintiff had been removed. 52 F.3d 928, 930 (11th Cir.1995). The district court, therefore, correctly held that Wilson did not present direct evidence of discrimination. 2. Circumstantial Evidence of Discrimination In evaluating disparate treatment claims supported by circumstantial evidence, we use the framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under this framework, the plaintiff first has the burden of establishing a prima facie case of discrimination, which creates a rebuttable presumption that the employer acted illegally. See Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir.1997). A plaintiff establishes a prima facie case of disparate treatment by showing that she was a qualified member of a protected class and was subjected to an adverse employment action in contrast with similarly situated employees outside the protected class. See, e.g., McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). The methods of presenting a prima facie case are not fixed; they are flexible and depend to a large degree upon the employment situation. See, e.g., Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th Cir.1984). When the plaintiff establishes a prima facie case, which creates the presumption of discrimination, the burden of production shifts to the employer to articulate a legitimate, nondiseriminatory reason for its actions. See Rojas, 285 F.3d at 1342; Combs, 106 F.3d at 1528. The employer “need not persuade the court that it was actually motivated by the proffered reasons.” Burdine, 450 U.S. at 254-55," }, { "docid": "7088721", "title": "", "text": "here, a plaintiff seeks to prove intentional discrimination through circumstantial evidence of the employer’s intent, the court applies the famil iar burden-shifting analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Plaintiff has the initial burden of establishing a prima facie case of discrimination. See Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir.1997). If a plaintiff meets this burden, he is entitled to a legal presumption that the discrimination was intentional and the burden shifts to the defendant who then has the opportunity to produce evidence that the action was based on legitimate nondiseriminatory reasons. See id at 1528. If the defendant articulates a legitimate reason, the burden shifts back to the plaintiff who may rebut the defendant, by proving that the reason proffered is merely a pretext for intentional discrimination. See id. To carry his burden, Plaintiff must “create a genuine issue of material fact as to whether the reasons advanced are pretextual.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1332 (11th Cir.1998). In order to establish a prima facie case of discrimination with circumstantial evidence, the plaintiff must show: (1) he is a member of a protected category; (2) he was subjected to an adverse employment action; (3) either he was replaced by a person outside his protected class or a similarly situated employee outside his category was treated more favorably, and; (4) he was qualified to perform his job. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997); Joseph v. Publix Super Markets, Inc., 983 F.Supp. 1431, 1444 (S.D.Fla.1997). Here it is clear that Plaintiff is a member of a protected category and that he was subjected to an adverse employment action, so he meets the first two prongs. However, in order to establish a prima facie case of discrimination he must also demonstrate that he was qualified to perform his job and either he was replaced by someone outside his protected class, ur a that" }, { "docid": "10367289", "title": "", "text": "Fed.R.Civ.P. 56(e)). Under Title VII, an employer may be found hable for unlawful discrimination under any one of three discrete theories: disparate treatment discrimination, pattern and practice discrimination, or disparate impact discrimination. EEOC v. Joe’s Stone Crab, 220 F.3d 1263, 1273 (11th Cir.2000). The first two theories require proof of discriminatory intent, while the third does not. Id. at 1273. Defendants argue that summary judgment is appropriate here because Plaintiff has failed to establish a claim of intentional discrimination or disparate impact. Plaintiff objects, arguing that there are genuine issues of material fact precluding summary judgment as to both Plaintiffs intentional discrimination and disparate impact claims. Because the theories place different burdens on the parties, the Court will address them separately. A. Intentional Discrimination To establish a prima facie case of race discrimination under a disparate treatment theory, Plaintiff may offer either direct or circumstantial evidence of discriminatory intent. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802- 03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Alexander v. Fulton County, Ga., 207 F.3d 1303 (11th Cir.2000). If the plaintiff presents direct evidence of discrimination, the defendant is then required to prove by a preponderance of the evidence that it would have taken the adverse employment action even in the absence of discrimination. To make a prima facie case using circumstantial evidence, a plaintiff may use the test established in McDonnell Douglas. A plaintiff may establish a prima facie case by demonstrating 1) that he belongs to a protected class under Title VII; 2) that he was qualified for and applied for the job; 3) that he was rejected; and 4) that others who were not members of the protected class were promoted. Denney v. City of Albany, 247 F.3d 1172, 1183 (11th Cir.2001); Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997). If the plaintiff provides sufficient circumstantial evidence to support a prima facie case, a legal presumption of unlawful discrimination arises and the burden of production shifts to the defendant to articulate a legitimate, non-diseriminatory reason for the challenged employment action. McDonnell Douglas, 411 U.S. at" }, { "docid": "23365211", "title": "", "text": "Gender Discrimination Claim To establish a prima facie case of discriminatory discharge, the plaintiff must show that she (1) was a member of a protected class, (2) was qualified for the job, (3) suffered an adverse employment action, and (4) was replaced by someone outside the protected class. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000) (applying the familiar McDonnell Douglas burden-shifting framework in an age discrimination case). Once a plaintiff has • established a prima facie case of discrimination, the burden shifts to the employer to offer a nondiscriminatory legitimate reason for the adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). The burden then shifts back to the plaintiff to show that the employer’s stated reason was a pretext for discrimination. Id. If the plaintiff does not satisfy her burden of establishing a genuine issue of material fact that the employer’s reason was pretextual, the grant of summary judgment in favor of the employer is proper. See Combs v. Plantation Patterns, 106 F.3d 1519, 1529 (11th Cir.1997). This court may affirm a judgment on any legal ground, regardless of the grounds addressed and relied upon by the district court. See National R.R. Passenger Corp. v. Roundtree Transp. and Rig ging, 286 F.3d 1233, 1263 (11th Cir.2002) (explaining that an appellate court may affirm the district court’s grant of summary judgment “as long as the judgment entered is correct on any legal ground regardless of the grounds addressed, adopted, or rejected by the district court”) (internal, quotation and citation omitted). Cuddeback established a prima facie case of gender discrimination by showing that (1) she is a female; (2) she was qualified for the job; (3) the University terminated her employment; and (4) someone outside the protected class replaced her. See Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th Cir.1984). Because a male, Hirohito Yamagu-chi, took over Cuddeback’s research duties when she was terminated, the district court erred in finding Cuddeback failed to establish a prima facie" } ]

[ { "docid": "23288781", "title": "", "text": "the goods, wares, or merchandise intended to be sold or the nature of the canvass to be made, or the census to be taken, and by what authority. The application shall also state the name of the party desiring the permit, his permanent street address and number while in the city and if after investigation the Mayor deems it proper or advisable he may issue a written permit to said person for the purpose of soliciting, selling, canvassing or census taking within the residence portion of the city which permit shah state on its face that it has been issued after a thorough investigation.” Vernon’s Texas Stat. 1936, Art. 876 (Code of Criminal Procedure), provides: “Appeals from a corporation court shall be heard by the county court except in cases where the county court has no jurisdiction, in which counties such appeals shall be heard by the proper court. In such appeals the trial shall be de novo. Said appeals shall be governed by the rules of practice and procedure for appeals from justice courts to the county court, so far as applicable.” “Court of Criminal Appeals. — The Court of Criminal Appeals shall have appellate jurisdiction co-extensive with the limits of the State in all criminal eases. This article shall not be so construed as to embrace any ease which has been appealed from any inferior court to the county court or county court at law, in which the fine imposed by the county court or county court at law shall not exceed one hundred dollars.” Lovell v. Griffin, 303 U. S. 444, 447, 451; Schneider v. State, 308 U. S. 147, 157, 163; Cantwell v. Connecticut, 310 U. S. 296, 302. Chaplinsky v. New Hampshire, 315 U. S. 568, 570, 571; Cantwell v. Connecticut, 310 U. S. 296, 303; Gitlow v. New York, 268 U. S. 652." } ]

[ { "docid": "22644821", "title": "", "text": "the property of the Gulf Shipbuilding Corporation, after notice, from this trespass was there cited, note 10, to show that it would protect the householder, after notice. The right to communicate ideas was expressed by us in Jamison v. Texas, 318 U. S. 413, 416, as follows: “But one who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the Constitutional right to express his views in an orderly fashion.” Our Constitution guarantees to every man the right to express his views in an orderly fashion. An essential element of “orderly” is that the man shall also have a right to use the place he chooses for his exposition. The rights of the owner, which the Constitution protects as well as the right of free speech, are not outweighed by the interests of the trespasser, even though he trespasses in behalf of religion or free speech. We cannot say that Jehovah’s Witnesses can claim the privilege of a license, which has never been granted, to hold their meetings in other private places, merely because the owner has admitted the public to them for other limited purposes. Even though we have reached the point where this Court is required to force private owners to open their property for the practice there of religious activities or propaganda dis tasteful to the owner, because of the public interest in freedom of speech and religion, there is no need for the application of such a doctrine here. Appellant, as we have said, was free to engage in such practices on the public highways, without becoming a trespasser on the company’s property. The Chief Justice and Mr. Justice Burton join in this dissent. Lovell v. Griffin, 303 U. S. 444; Hague v. C. I. O., 307 U. S. 496; Schneider v. State, 308 U. S. 147; Thornhill v. Alabama, 310 U. S. 88; Cantwell v. Connecticut, 310 U. S. 296; dissent of Chief Justice Stone in Jones v. Opelika, 316 U. S. 584, 600, adopted as the opinion of the Court, 319 U. S." }, { "docid": "22709083", "title": "", "text": "O., 307 U. S. 496; Schneider v. State, 308 U. S. 147 (the Irvington ordinance); Largent v. Texas, 318 U. S. 418; Jones v. Opelika, 319 U. S. 103, vacating 316 U. S. 584 (the Opelika ordinance); Niemotko v. Maryland, 340 U. S. 268; Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495; Gelling v. Texas, 343 U. S. 960; Superior Films, Inc., v. Department of Education, 346 U. S. 587; Staub v. Baxley, 355 U. S. 313; cf. Marsh v. Alabama, 326 U. S. 501; Tucker v. Texas, 326 U. S. 517. The common-law count in the Cantwell case involved considerations similar to those which were determinative of the decisions cited in text and note, at note 2, infra. See also Stromberg v. California, 283 U. S. 359; Winters v. New York, 333 U. S. 507. Language characterizing state statutes as overly broad has sometimes been found in opinions where it was unnecessary to the result, and merely meant to express the idea that whatever state interest was there asserted as underlying a regulation was insufficient to justify the regulation’s application to particular circumstances fairly within the' Fourteenth Amendment’s protection. Compare Thomas v. Collins, 323 U. S. 516, with Fiske v. Kansas, 274 U. S. 380. Compare Martin v. Struthers, 319 U. S. 141, with Breard v. Alexandria, 341 U. S. 622. Mr. Justice Harlan, whom Mr. Justice Frankfurter, Mr. Justice Clark and Mr. Justice Whittaker join, dissenting. Of course this decision has a natural tendency to enlist support, involving as it does an unusual statute that touches constitutional rights whose protection in the context of the racial situation in various parts of the country demands the unremitting vigilance of the courts. Yet that very circumstance also serves to remind of the restraints that attend constitutional adjudication. It must be emphasized that neither of these cases actually presents an issue of racial discrimination. The statute on its face applies to all Arkansas teachers irrespective of race, and there is no showing that it has been discrimina-torily administered. The issue is whether, consistently with the Fourteenth Amendment, a State may" }, { "docid": "22702094", "title": "", "text": "283 U. S. 697; Bridges v. California, 314 U. S. 252; Thomas v. Collins, 323 U. S. 516; Pennekamp v. Florida, 328 U. S. 331; Craig v. Harney, 331 U. S. 367. Convictions by state courts sitting without juries, GENERALLY FOR VIOLATIONS OF LOCAL ORDINANCES: Lovell v. Griffin, 303 U. S. 444; Schneider v. State, 308 U. S. 147; Cantwell v. Connecticut, 310 U. S. 296; Marsh v. Alabama, 326 U. S. 501; Tucker v. Texas, 326 U. S. 517; Winters v. New York, 333 U. S. 507; Saia v. New York, 334 U. S. 558; Kovacs v. Cooper, 336 U. S. 77; Kunz v. New York, 340 U. S. 290; Feiner v. New York, 340 U. S. 315. Injunctions against enforcement of state or local laws (non-jury) : Grosjean v. American Press Co., 297 U. S. 233; Hague v. C. I. O., 307 U. S. 496; Minersville School District v. Gobitis, 310 U. S. 586; West Virginia Board of Education v. Barnette, 319 U. S. 624. Administrative proceedings (non-jury) : Bridges v. Wixon, 326 U. S. 135; Schneiderman v. United States, 320 U. S. 118; American Communications Association v. Douds, 339 U. S. 382. Cases tried before juries for violations of state LAWS DIRECTED AGAINST ADVOCACY OF ANARCHY, CRIMINAL syndicalism, etc.: Gilbert v. Minnesota, 254 U. S. 325; Gitlow v. New York, 268 U. S. 652; Whitney v. California, 274 U. S. 357; Fiske v. Kansas, 274 U. S. 380; Stromberg v. California, 283 U. S. 359; De Jonge v. Oregon, 299 U. S. 353; Herndon v. Lowry, 301 U. S. 242; Taylor v. Mississippi, 319 U. S. 583; or for minor local offenses: Cox v. New Hampshire, 312 U. S. 569; Chaplinsky v. New Hampshire, 315 U. S. 568; Terminiello v. Chicago, 337 U. S. 1; Niemotko v. Maryland, 340 U. S. 268. Federal prosecutions before juries under the espionage ACT OF 19 17 FOLLOWING WORLD WAR I: Schenck v. United States, 249 U. S. 47; Frohwerk v. United States, 249 U. S. 204; Debs v. United States, 249 U. S. 211; Abrams v. United States, 250 U." }, { "docid": "22386672", "title": "", "text": "finding of a court arrived at by weighing the evidence, nor the verdict of a jury can be substituted for it.” See Jamison v. Texas, 318 U. S. 413; Skiriotes v. Florida, 313 U. S. 69, 79; Hebert v. Louisiana, 272 U. S. 312, 316. Cf. Martin v. Struthers, 319 U. S. 141, 146; Lovell v. City of Griffin, 303 U. S. 444, 452. Thomas v. Collins, 323 U. S. 516, 531. Cf. Kovacs v. Cooper, 336 U. S. 77, 88, n. 14; concurrence at 90. See n. 24, supra. Cantwell v. Connecticut, 310 U. S. 296, 303, 304; Cox v. New Hampshire, 312 U. S. 569; Chaplinsky v. New Hampshire, 315 U. S. 568; Murdock v. Pennsylvania, 319 U. S. 105, 109-110; Prince v. Massachusetts, 321 U. S. 158, 166; Saia v. New York, 334 U. S. 558, 561; Feiner v. New York, 340 U. S. 315. See the collection of cases in Niemotko v. Maryland, 340 U. S. 268, at p. 276 ff. These cases called forth numerous Notes, e. g., 46 Col. L. Rev. 457; 34 Geo. L. J. 244; 44 Mich. L. Rev. 848. Mr. Chief Justice Vinson, with whom Mr. Justice Douglas joins, dissenting. The ordinance before us makes criminal the hitherto legitimate business practice of soliciting magazine subscriptions from door to door without prior invitation of the homeowner. Looking only to the face of that ordinance, the Court sustains it as against objections under the Due Process Clause, the Commerce Clause and the First Amendment. I dissent and would reverse the judgment below without reaching all of the issues raised, for, in my opinion, the ordinance constitutes an undue and discriminatory burden on interstate commerce. The Court holds that because the “ordinance falls in the classification of regulation,” the city council is free to burden interstate commerce. Ante, p. 638. In my view, the ordinance is a flat prohibition of solicitation. The Louisiana Supreme Court recognized this fact when it characterized the ordinance as “provid [ing] for a blanket prohibition of solicitation without invitation, save for food vendors, who are specifically exempt.” 217 La." }, { "docid": "22702093", "title": "", "text": "processes of law to be invoked only when the provocateurs among us move from speech to action. Vishinsky wrote in 1938 in The Law of the Soviet State, “In our state, naturally, there is and can be no place for freedom of speech, press, and so on for the foes of socialism.” Our concern should be that we accept no such standard for the United States. Our faith should be that our people will never give support to these advocates of revolution, so long as we remain loyal to the purposes for which our Nation was founded. APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS. There have been numerous First Amendment cases before the Court raising the issue of clear and present danger since Mr. Justice Holmes first formulated the test in Schenck v. United States, 249 U. S. 47, 52. Most of them, however, have not involved jury trials. The cases which may be deemed at all relevant to our problem can be classified as follows: Convictions tor contempt of court (non-jury): Near v. Minnesota, 283 U. S. 697; Bridges v. California, 314 U. S. 252; Thomas v. Collins, 323 U. S. 516; Pennekamp v. Florida, 328 U. S. 331; Craig v. Harney, 331 U. S. 367. Convictions by state courts sitting without juries, GENERALLY FOR VIOLATIONS OF LOCAL ORDINANCES: Lovell v. Griffin, 303 U. S. 444; Schneider v. State, 308 U. S. 147; Cantwell v. Connecticut, 310 U. S. 296; Marsh v. Alabama, 326 U. S. 501; Tucker v. Texas, 326 U. S. 517; Winters v. New York, 333 U. S. 507; Saia v. New York, 334 U. S. 558; Kovacs v. Cooper, 336 U. S. 77; Kunz v. New York, 340 U. S. 290; Feiner v. New York, 340 U. S. 315. Injunctions against enforcement of state or local laws (non-jury) : Grosjean v. American Press Co., 297 U. S. 233; Hague v. C. I. O., 307 U. S. 496; Minersville School District v. Gobitis, 310 U. S. 586; West Virginia Board of Education v. Barnette, 319 U. S. 624. Administrative proceedings (non-jury) : Bridges v. Wixon, 326" }, { "docid": "22751358", "title": "", "text": "theory on which the city tried appellant’s case to the jury, Report, supra, n. 1, at- 12-13, although the jury was instructed in the words of the ordinance. As already noted, supra, n. 1, no challenge is made here to the Rockford ordinance as applied in this case. American Communications Assn. v. Douds, 339 U. S., at 412. Cf. Edwards v. South Carolina, 372 U. S. 229 (1963); Cantwell v. Connecticut, 310 U. S. 296, 308 (1940). Similarly, in numerous other cases, we have condemned broadly worded licensing ordinances which grant such standardless discretion to public officials that they are free to censor ideas and enforce their own personal preferences. Shuttlesworth v. Birmingham, 394 U. S. 147 (1969); Staub v. City of Baxley, 355 U. S. 313 (1958); Saia v. New York, 334 U. S. 558 (1948); Schneider v. State, 308 U. S. 147, 163-164 (1939); Lovell v. Griffin, 303 U. S. 444 (1938); Hague v. CIO, 307 U. S. 496 (1939). Cf. Cox v. Louisiana, 379 U. S. 536, 546-550 (1965); Edwards v. South Carolina, 372 U. S., at 234-237. Tracking the complaint, the jury verdict found Grayned guilty of “[w]ilfully causing diversion of good order of public school in session, in that while on school grounds and while school was in session, did wilfully make and assist in the making of a diversion which tended to disturb the peace and good order of the school session and class thereof.” Shuttlesworth v. Birmingham, 382 U. S., at 90. Chicago v. Fort, 46 Ill. 2d 12, 16, 262 N. E. 2d 473, 476 (1970), a case cited in the opinion below. See Zwickler v. Koota, 389 U. S. 241, 249-250 (1967), and cases cited. E. g., Gooding v. Wilson, 405 U. S. 518 (1972); Coates v. Cincinnati, 402 U. S., at 616; Dombrowski v. Pfister, 380 U. S., at 486, and cases cited; Kunz v. New York, 340 U. S. 290 (1951). Police Department of Chicago v. Mosley, ante, p. 92. Cox v. New Hampshire, 312 U. S. 569, 575-576 (1941); Kunz v. New York, 340 U. S., at 293-294;" }, { "docid": "22081336", "title": "", "text": "upon the exercise of liberty protected by the Constitution.” 310 U. S., at 305, 307. To the same effect are Lovell v. Griffin, supra, at 451, 452; Hague v. C. I. O., 307 U. S. 496, 516; Schneider v. State, 308 U. S. 147, 163, 164; Largent v. Texas, 318 U. S. 418, 422; Jones v. Opelika, 319 U. S. 103, adopting per curiam on rehearing the dissenting opinion in 316 U. S. 584, 600-602; Niemotko v. Maryland, 340 U. S. 268, 271; Kunz v. New York, 340 U. S. 290, 293. It is undeniable that the ordinance authorized the Mayor and Council of the City of Baxley to grant “or refuse to grant” the required permit in their uncontrolled discretion. It thus makes enjoyment of speech contingent upon the will of the Mayor and Council of the City, although that fundamental right is made free from congressional abridgment by the First Amendment and is protected by the Fourteenth from invasion by state action. For these reasons, the ordinance, on its face, imposes an unconstitutional prior restraint upon the enjoyment of First Amendment freedoms and lays “a forbidden burden upon the exercise of liberty protected by the Constitution.” Cantwell v. Connecticut, supra, at 307. Therefore, the judgment of conviction must fall. Reversed. “Section I. Before any person or persons, firms or organizations shall solicit membership for any organization, union or society of any sort which requires from its members the payments of membership fees, dues or is entitled to make assessment against its members, such person or persons shall make application in writing to Mayor and Council of the City of Baxley for the issuance of a permit to solicit members in such organization from among the citizens of Baxley. “Section II. Such application shall give the name and nature of the organization for which applicant desires to solicit members, whether such organization is incorporated or unincorporated, the location of its principal office and place of business and the names of its officers, along with date of its organization, and its assets and liabilities. Such application shall further cpntain .the" }, { "docid": "22698737", "title": "", "text": "house to house . . . for a recognized charitable . . . or . . . political campaign or cause,” to register with the local police “for identification only.” We found it intolerably unclear what “Groups and Organizations” were encompassed, what was meant by a “cause,” and what was required by way of “identification.” I fail to see how a statutory prohibition as difficult to understand and apply as the 1,000-foot rule for “adult” theaters can survive if the ordinance in Hynes could not. The vagueness in the licensing and waiver standards of this ordinance is more pernicious still. The mayor’s power to deny a license because of “flagrant disregard” for the “safety or welfare” of others is apparently exercisable only over those who have committed some infraction within the previous two years, but I do not see why even those persons should be subject to stand-ardless licensing discretion of precisely the kind that this Court so many times has condemned. See Shuttlesworth v. Birmingham, 394 U. S. 147 (1969); Staub v. City of Baxley, 355 U. S. 313 (1958); Kunz v. New York, 340 U. S. 290 (1951); Niemotko v. Maryland, 340 U. S. 268 (1951); Soda v. New York, 334 U. S. 558 (1948); Schneider v. State, 308 U. S. 147, 163-164 (1939); Hague v. CIO, 307 U. S. 496 (1939); Lovell v. Griffin, 303 U. S. 444 (1938). For the exhibitor who must obtain a waiver of the 1,000-foot rule, the City Planning Commission likewise functions effectively as a censor, constrained only by its perception of the “public interest” and the “spirit and intent” of the ordinance. This Court repeatedly has invalidated such vague standards for prior approval of film exhibitions. See Interstate Circuit v. Dallas, 390 U. S. 676, 683 (1968), and cases cited. Indeed, a standard much like the waiver stand ard in this case was the one found wanting in Gelling v. Texas, 343 U. S. 960 (1952) (censor could ban films “of such character as to be prejudicial to the best interests of the people of said City”). It is true that" }, { "docid": "22682915", "title": "", "text": "307 U. S. 496; Schneider v. State, 308 U. S. 147, 163-165; Cantwell v. Connecticut, 310 U. S. 296; Largent v. Texas, 318 U. S. 418; Jones v. Opelika, 316 U. S. 584, 600 (Stone, C. J., dissenting), 611 (Murphy, J., dissenting), vacated and previous dissenting opinions adopted per curiam, 319 U. S. 103; Marsh v. Alabama, 326 U. S. 501; Tucker v. Texas, 326 U. S. 517; Saia v. New York, 334 U. S. 558; Kunz v. New York, 340 U. S. 290; Niemotko v. Maryland, 340 U. S. 268; Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495; Gelling v. Texas, 343 U. S. 960; Superior Films, Inc. v. Department of Education, 346 U. S. 587; Staub v. Baxley, 355 U. S. 313; Cox v. Louisiana, 379 U. S. 536; Interstate Circuit, Inc. v. Dallas, 390 U. S. 676. Lovell v. Griffin, 303 U. S., at 452-453; Schneider v. State, 308 U. S., at 159, 165; Largent v. Texas, 318 U. S., at 419, 422; Jones v. Opelika, 316 U. S., at 602 (Stone, C. J., dissenting), adopted per curiam on rehearing, 319 U. S., at 104; Staub v. Baxley, 355 U. S., at 319; Freedman v. Maryland, 380 U. S. 51, 56-57. The validity of this assumption would depend upon, among other things, the availability of expeditious judicial review of the Commission’s refusal of a permit. Cf. Poulos v. New Hampshire, 345 U. S. 395, 420 (Frankfurter, J., concurring in result); Freedman v. Maryland, 380 U. S. 51. See also the concurring opinion of Mr. Justice Harlan, post, p. 159. Brief for Respondent 1-2. National Fire Ins. Co. v. Thompson, 281 U. S. 331, 336, and cases cited therein. The legal and constitutional issues involved in the Walker ease were quite different from those involved here. The Court recently summarized the Walker decision as follows: “In that case, the Court held that demonstrators who had proceeded with their protest march in face of the prohibition of an injunctive order against such a march, could not defend contempt charges by asserting the unconstitutionality of the injunction. The proper" }, { "docid": "22558478", "title": "", "text": "licensing when he is prosecuted for failure to procure it”). See also Shuttlesworth v. Birmingham, 394 U. S. 147, 151 (1969) (“ ‘The Constitution can hardly be thought to deny to one subjected to the restraints of [a licensing law] the right to attack its constitutionality, because he has not yielded to its demands’” (quoting Jones v. Opelika, 316 U. S. 584, 602 (1942) (Stone, C. J., dissenting), adopted per curiam on rehearing, 319 U. S. 103, 104 (1943))); Lovell v. Griffin, 303 U. S. 444, 452-453 (1938) (“As the ordinance [providing for unbridled licensing discretion] is void on its face, it was not necessary for appellant to seek a permit under it”); cf. Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 956-957 (1984). At the root of this long line of precedent is the time-tested knowledge that in the area of free expression a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship. E. g., Shuttlesworth, supra, at 151; Cox v. Louisiana, 379 U. S. 536 (1965); Staub v. City of Baxley, 355 U. S. 313, 321-322 (1958); Kunz v. New York, 340 U. S. 290, 294 (1951); Niemotko v. Maryland, 340 U. S. 268 (1951); Saia v. New York, 334 U. S. 558 (1948). And these evils engender identifiable risks to free expression that can be effectively alleviated only through a facial challenge. First, the mere existence of the licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused. As we said in Thornhill: “Proof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas. ... The power of the licensor against which John Milton directed his assault by his ‘Appeal for the Liberty of Unlicensed Printing’ is pernicious not merely by reason of the censure of particular comments but by" }, { "docid": "22767668", "title": "", "text": "guilty of any offense by reason of the enactment of the provisions of this act. If, however, the Communist Party of the United States or any other party now in existence or to be formed operates in such a way that it comes within the definitions and performs activities which are proscribed under the act, then the legislation will apply to it. . . . If such a party changes its characteristics, then the objectives sought by the committee will have been accomplished.” We need not consider now the decisions in which this Court has struck down regulations requiring not merely registration but the securing of a license, issued either at the arbitrary discretion of licensing officials or by the application of licensing standards so broad or uncertain as to permit arbitrary action by officials, as prerequisite to the right to speak. E. g., Staub v. Baxley, 355 U. S. 313; Superior Films, Inc., v. Department of Education, 346 U. S. 587; Gelling v. Texas, 343 U. S. 960; Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495; Niemotko v. Maryland, 340 U. S. 268; Kunz v. New York, 340 U. S. 290; Largent v. Texas, 318 U. S. 418; Cantwell v. Connecticut, 310 U. S. 296; Schneider v. State, 308 U. S. 147; Hague v. C. I. O., 307 U. S. 496; Lovell v. Griffin, 303 U. S. 444. The present statute has no such licensing provision. After the speech, Thomas had also solicited one individual, by name, to join the union. The Court declined to decide whether such a solicitation, apart, from the speech, might constitutionally have been made the basis of punishment for contempt. 323 U. S., at 541. The state court’s order adjudging Thomas in contempt imposed a single sentence for both “solicitations,” and the Court therefore regarded the statute, in this application, as restraining and punishing Thomas \"for uttering, in the course of his address, the general as well as the specific invitation.” Id., at 529. This is clear from the Court’s reliance on De Jonge v. Oregon, 299 U. S. 353. Among the Committee" }, { "docid": "22709082", "title": "", "text": "the question which it asks-— is germane to that selection. Nor, on this record, can 1 attribute to the State a purpose to employ the enactment as a device for the accomplishment of what is constitutionally forbidden. Of course, if the information gathered by the required affidavits is used to further a scheme of terminating .the employment of teachers solely because of their membership in unpopular organizations, that use will run afoul of the Fourteenth Amendment. It will be time enough, if such use is made, to hold the application of the statute unconstitutional. See Yick Wo v. Hopkins, 118 U. S. 356. Because I do not find that the disclosure of teachers’ associations to their school boards is, without more, such' a restriction upon their liberty, or upon that of the community, as to overbalance the State’s interest in asking the question, I would affirm the judgments below. I am authorized to say that Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Whittaker agree with this opinion. See also Hague v. C. I. O., 307 U. S. 496; Schneider v. State, 308 U. S. 147 (the Irvington ordinance); Largent v. Texas, 318 U. S. 418; Jones v. Opelika, 319 U. S. 103, vacating 316 U. S. 584 (the Opelika ordinance); Niemotko v. Maryland, 340 U. S. 268; Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495; Gelling v. Texas, 343 U. S. 960; Superior Films, Inc., v. Department of Education, 346 U. S. 587; Staub v. Baxley, 355 U. S. 313; cf. Marsh v. Alabama, 326 U. S. 501; Tucker v. Texas, 326 U. S. 517. The common-law count in the Cantwell case involved considerations similar to those which were determinative of the decisions cited in text and note, at note 2, infra. See also Stromberg v. California, 283 U. S. 359; Winters v. New York, 333 U. S. 507. Language characterizing state statutes as overly broad has sometimes been found in opinions where it was unnecessary to the result, and merely meant to express the idea that whatever state interest was there asserted as underlying a regulation" }, { "docid": "22698738", "title": "", "text": "Baxley, 355 U. S. 313 (1958); Kunz v. New York, 340 U. S. 290 (1951); Niemotko v. Maryland, 340 U. S. 268 (1951); Soda v. New York, 334 U. S. 558 (1948); Schneider v. State, 308 U. S. 147, 163-164 (1939); Hague v. CIO, 307 U. S. 496 (1939); Lovell v. Griffin, 303 U. S. 444 (1938). For the exhibitor who must obtain a waiver of the 1,000-foot rule, the City Planning Commission likewise functions effectively as a censor, constrained only by its perception of the “public interest” and the “spirit and intent” of the ordinance. This Court repeatedly has invalidated such vague standards for prior approval of film exhibitions. See Interstate Circuit v. Dallas, 390 U. S. 676, 683 (1968), and cases cited. Indeed, a standard much like the waiver stand ard in this case was the one found wanting in Gelling v. Texas, 343 U. S. 960 (1952) (censor could ban films “of such character as to be prejudicial to the best interests of the people of said City”). It is true that the mayor and the Planning Commission review the applications of theaters, rather than individual films. It might also be argued that at least if they adhere to the “spirit and intent” of the ordinance, their principal concern will be with the blighting of the cityscape, rather than that of the minds of their constituents. But neither of these aspects of the case alters its basic and dispositive facts: persons seeking to exhibit “adult,” but protected, films must secure, in many cases, the prior approval of the mayor and City Planning Commission; they inevitably will make their decisions by reference to the content of the proposed exhibitions; they are not constrained in doing so by “narrowly drawn, reasonable and definite standards.” Niemotko v. Maryland, 340 U. S., at 271. This may be a permissible way to control pawnshops, pool halls, and the other “regulated uses” for which the ordinance was originally designed. It is not an acceptable way, in the light of the First Amendment’s presence, to decide who will be permitted to exhibit what films" }, { "docid": "22688709", "title": "", "text": "the nature of the cause, the right to solicit funds depends. . . . [T]he availability of a judicial remedy for abuses in the system of licensing still leaves that system one of previous restraint which, in the field of free speech and press, we have held inadmissible.” Id., at 306. See Saia v. New York, 334 U. S. 558, 560 (1948). As Justice Frankfurter subsequently characterized Cantwell: “To determine whether a cause is, or is not, 'religious’ opens too' wide a field of personal judgment to be left to the mere discretion of an official.” 334 U. S., at 564 (dissenting opinion). According such wide discretion to city officials to control the free exercise of First Amendment rights is precisely what has consistently troubled this Court in a long line of cases starting with Lovell v. Griffin, 303 U. S. 444, 451 (1938). See, e. g., Southeastern Promotions, Ltd. v. Conrad, 420 U. S., at 552-553 (theatrical performance in city-owned auditorium) ; Shuttlesworth v. Birmingham, 394 U. S. 147, 150-153 (1969) (picketing and parading); Staub v. City of Baxley, 355 U. S. 313, 321-325 (1958) (solicitation); Kunz v. New York, 340 U. S. 290, 294 (1951) (public meetings); Saia v. New York, supra, at 560-562 (sound trucks); Cantwell v. Connecticut, supra, at 307 (solicitation); Schneider v. State, 308 U. S., at 163-164 (handbills); Hague v. CIO, 307 U. S., at 516 (handbills). See also Young v. American Mini Theatres, Inc., 427 U. S. 50, 93 (1976) (Blackmun, J., dissenting) ; Hynes v. Mayor and Council of Oradell, 425 U. S. 610, 617 (1976); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 97 (1972). The plurality’s bifurcated approach, I fear, will generate billboard ordinances providing the grist for future additions to this list, for it creates discretion where none previously existed. It is one thing for a court to classify in specific cases whether commercial or noncommercial speech is involved, but quite another — and for me dispositively so — for a city to do so regularly for the purpose of deciding what messages may be communicated by" }, { "docid": "22081335", "title": "", "text": "the public welfare council of the State; that he is empowered to determine whether the cause is a religious one, and that the issue of a certificate depends upon his affirmative action. If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion ... is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth. ... [T]o condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.” 310 U. S., at 305, 307. To the same effect are Lovell v. Griffin, supra, at 451, 452; Hague v. C. I. O., 307 U. S. 496, 516; Schneider v. State, 308 U. S. 147, 163, 164; Largent v. Texas, 318 U. S. 418, 422; Jones v. Opelika, 319 U. S. 103, adopting per curiam on rehearing the dissenting opinion in 316 U. S. 584, 600-602; Niemotko v. Maryland, 340 U. S. 268, 271; Kunz v. New York, 340 U. S. 290, 293. It is undeniable that the ordinance authorized the Mayor and Council of the City of Baxley to grant “or refuse to grant” the required permit in their uncontrolled discretion. It thus makes enjoyment of speech contingent upon the will of the Mayor and Council of the City, although that fundamental right is made free from congressional abridgment by the First Amendment and is protected by the Fourteenth from invasion by state action. For these reasons, the ordinance, on its face, imposes an unconstitutional" }, { "docid": "22542589", "title": "", "text": "under this statute, the Louisiana Supreme Court thus construed the statute so as to apply to public assemblies which do not have as their specific purpose the obstruction of traffic. There is no doubt from the record in this case that this far sidewalk was- obstructed, and thus, as so construed, 'appellant violated the statute. Appellant,- however-, contends that, as so construed and applied in this case, the statute is an unconstitutional infringement on freedom of speech and assembly. This contention on the facts here presented raises an issue with which this Court has dealt in many decisions, that is, the right of a State or municipality to regulate the use of city streets and other facilities to assure the safety and convenience of the people in their use and the concomitant right of the people of free speech and assembly. See Lovell v. Griffin, 303 U. S. 444; Hague v. CIO, 307 U. S. 496; Schneider v. State, 308 U. S. 147; Thornhill v. Alabama, 310 U. S. 88; Cantwell v. Connecticut, 310 U. S. 296; Cox v. New Hampshire, 312 U. S. 569; Largent v. Texas, 318 U. S. 418; Saia v. New York, 334 U. S. 558; Kovacs v. Cooper, 336 U. S. 77; Niemotko v. Maryland, 340 U. S. 268; Kunz v. New York, 340 U. S. 290; Poulos v. New Hampshire, 345 U. S. 395. From these decisions certain ‘dear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted" }, { "docid": "22682914", "title": "", "text": "more than four years later said that they were — to issue a permit “if, after an investigation [they] found that the convenience of the public in the use of the streets or sidewalks would not thereby be unduly disturbed.” This case, therefore, is a far cry from Cox v. New Hampshire, supra, where it could be said that there was nothing to show “that the statute has been administered otherwise than in the . . . manner which the state court has construed it to require.” Here, by contrast, it is evident that the ordinance was administered so as, in the words of Chief Justice Hughes, “to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought . . . immemorially associated with resort to public places.” The judgment is Reversed. Mr. Justice Black concurs in the result. Mr. Justice Marshall took no part in the consideration or decision of this case. Except funeral processions. See Lovell v. Griffin, 303 U. S. 444; Hague v. C. I. O., 307 U. S. 496; Schneider v. State, 308 U. S. 147, 163-165; Cantwell v. Connecticut, 310 U. S. 296; Largent v. Texas, 318 U. S. 418; Jones v. Opelika, 316 U. S. 584, 600 (Stone, C. J., dissenting), 611 (Murphy, J., dissenting), vacated and previous dissenting opinions adopted per curiam, 319 U. S. 103; Marsh v. Alabama, 326 U. S. 501; Tucker v. Texas, 326 U. S. 517; Saia v. New York, 334 U. S. 558; Kunz v. New York, 340 U. S. 290; Niemotko v. Maryland, 340 U. S. 268; Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495; Gelling v. Texas, 343 U. S. 960; Superior Films, Inc. v. Department of Education, 346 U. S. 587; Staub v. Baxley, 355 U. S. 313; Cox v. Louisiana, 379 U. S. 536; Interstate Circuit, Inc. v. Dallas, 390 U. S. 676. Lovell v. Griffin, 303 U. S., at 452-453; Schneider v. State, 308 U. S., at 159, 165; Largent v. Texas, 318 U. S., at 419, 422; Jones v. Opelika, 316 U. S., at 602" }, { "docid": "22690736", "title": "", "text": "whether or not the business has moved into a new structure and whether or not the use of the structure has changed. Therefore, even assuming the correctness of the city’s representation of its “general” inspection scheme, the scheme involved here is more onerous with respect to sexually oriented businesses than with respect to the vast majority of other businesses. For example, inspections are required whenever ownership of a sexually oriented business changes, and when the business applies for the annual renewal of its permit. We, therefore, hold, as a threshold matter, that petitioners may. raise a facial challenge to the licensing scheme, and that as the suit comes to us, the businesses challenging the scheme have a valid First Amendment interest. B While “[p]rior restraints are not unconstitutional per se . . . [a]ny system of prior restraint. . . comes to this Court bearing a heavy presumption against its constitutional validity.” Southeastern Promotions, Ltd. v. Conrad, supra, at 558. See, e. g., Lovell v. Griffin, 303 U. S. 444, 451-452 (1938); Cantwell v. Connecticut, 310 U. S. 296, 306-307 (1940); Cox v. New Hampshire, 312 U. S. 569, 574-575 (1941); Shuttlesworth v. Birmingham, 394 U. S., at 150-151. Our cases addressing prior restraints have identified two evils that will not be tolerated in such schemes. First, a scheme that places “unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.” Lakewood v. Plain Dealer Publishing Co., 486 U. S. 760, 767 (1988). See Saia v. New York, 384 U. S. 558 (1948); Niemotko v. Maryland, 340 U. S. 268 (1951); Kunz v. New York, 340 U. S. 290 (1951); Staub v. City of Baxley, 355 U. S. 313 (1958); Freedman v. Maryland, 380 U. S. 51 (1965); Cox v. Louisiana, 379 U. S. 536 (1965); Shuttlesworth v. Birmingham, supra; Secretary of State of Maryland v. Joseph H. Munson Co., 467 U. S. 947 (1984). “ ‘It is settled by a long line of recent decisions of this Court that an ordinance which . . . makes the peaceful enjoyment" }, { "docid": "22120518", "title": "", "text": "official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York. As such, the ordinance is clearly invalid as a prior restraint on the exercise of First Amendment rights. In considering the right of a municipality to control the use of public streets for the expression of religious views, we start with the words of Mr. Justice Roberts that “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. C. I. O., 307 U. S. 496, 515 (1939). Although this Court has recognized that a statute may be enacted which prevents serious interference with normal usage of streets and parks, Cox v. New Hampshire, 312 U. S. 569 (1941), we have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places. In Cantwell v. Connecticut, 310 U. S. 296 (1940), this Court held invalid an ordinance which required a license for soliciting money for religious causes. Speaking for a unanimous Court, Mr. Justice Roberts said: “But to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.” 310 U. S. at 307. To the same effect are Lovell v. Griffin, 303 U. S. 444 (1938); Hague v. C. I. O., 307 U. S. 496 (1939); Largent v. Texas, 318 U. S. 418 (1943). In Saia v. New York, 334 U. S. 558 (1948), we reaffirmed the invalidity of such prior restraints upon the right to speak: \"We hold that § 3 of this ordinance is unconstitutional on its face, for it establishes a previous restraint on" }, { "docid": "22644822", "title": "", "text": "to hold their meetings in other private places, merely because the owner has admitted the public to them for other limited purposes. Even though we have reached the point where this Court is required to force private owners to open their property for the practice there of religious activities or propaganda dis tasteful to the owner, because of the public interest in freedom of speech and religion, there is no need for the application of such a doctrine here. Appellant, as we have said, was free to engage in such practices on the public highways, without becoming a trespasser on the company’s property. The Chief Justice and Mr. Justice Burton join in this dissent. Lovell v. Griffin, 303 U. S. 444; Hague v. C. I. O., 307 U. S. 496; Schneider v. State, 308 U. S. 147; Thornhill v. Alabama, 310 U. S. 88; Cantwell v. Connecticut, 310 U. S. 296; dissent of Chief Justice Stone in Jones v. Opelika, 316 U. S. 584, 600, adopted as the opinion of the Court, 319 U. S. 103; Jamison v. Texas, 318 U. S. 413; Largent v. Texas, 318 U. S. 418; Murdock v. Pennsylvania, 319 U. S. 105; Martin v. Struthers, 319 U. S. 141; Follett v. McCormick, 321 U. S. 573. Schenck v. United States, 249 U. S. 47; Gitlow v. New York, 268 U. S. 652; Near v. Minnesota, 283 U. S. 697; Cantwell v. Connecticut, 310 U. S. 296; Chaplinsky v. New Hampshire, 315 U. S. 568; Prince v. Massachusetts, 321 U. S. 158. “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.” First Amendment to the Constitution. “The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked" } ]

[ { "docid": "15623713", "title": "", "text": "present in the United States when the motion is filed”); cf. Prestol Espinal v. Att’y Gen., 653 F.3d 213 (3d Cir.2011) (in the context of statutorily authorized motions for reconsideration, holding that the “post-departure bar regulation conflicts with Congress’ clear intent for several reasons”). The uniform alignment of other circuits that have addressed this issue counsels in favor of deeming the departure regulation invalid as applied to statutory motions to reopen. See In re Dale, 582 F.3d at 575 n. 8 (bolstering its conclusion with the “general prudential concern[ ] with creating unnecessary circuit splits”). One final point warrants mention. In his brief, the Attorney General contends that the departure regulation’s validity is supported by our decisions in Navarro-Miranda v. Ashcroft, 330 F.3d 672 (5th Cir.2003) and Ovalles. According to him, these two decisions foreclose a challenge to the application of the departure regulation to statutory motions to reopen. We disagree. Navarro-Miranda dealt with the applicability of the departure regulation in the context of the Board’s exercise of its regulatory power to reopen cases sua sponte. See 330 F.3d at 675-76. Unlike the present case, Navarro-Miranda did not involve an alien’s statutory right to file a motion to reopen. Ovalles is also not controlling. There, we denied relief on two relevant grounds. First, we concluded that Ovalles could not avail himself of his statutory right to file a motion to reopen or for reconsideration because his motion before the Board was untimely. Ovalles, 577 F.3d at 296 (“Thus, because sections 1229a(c)(6) and 1229a(c)(7) of IIRIRA do not grant Ovalles the right to have his facially and concededly untimely motion heard by the BIA, he cannot rely on those statutory provisions as a basis for contending that the BIA was required to give sua sponte consideration to the merits of his July 27, 2007 motion to reconsider or reopen its March 2004 decision.”). Second, relying on Navarro-Miranda, we concluded that the Board acted reasonably in determining that the departure regulation deprived it of its regulatory power to reopen or reconsider decisions sua sponte. Id. at 296-97. In short, Navarro-Miranda and Ovalles" } ]

[ { "docid": "2080548", "title": "", "text": "a motion for continuance where an alien’s procedural challenge did not implicate the merits of an otherwise unreviewable removal order. Calma, 663 F.3d at 878. This case raises a similar question — whether we have jurisdiction to review an alien’s challenge to the denial of a motion for continuance — but requires us to consider a different statutory provision, subsection (C). As noted above, this provision deprives us of jurisdiction “to review any final order of removal” against an alien who has been convicted of certain enumerated crimes. 8 U.S.C. § 1252(a)(2)(C). Subsection (C) applies to Moral because he has been convicted of an aggravated felony — sexual abuse of a minor — see id. §§ 1227(a) (2)(A)(iii); 1101(a)(43)(A), and illegal use of a firearm, see id. § 1227(a)(2)(C). (The sex-abuse conviction resulted from the guilty plea that Moral unsuccessfully challenged in state court.) Recently the Supreme Court in Kucana v. Holder, 558 U.S. 233, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010), and subsequently this court in Calma, 663 F.3d 868, concluded that the jurisdiction-stripping provisions found in 8 U.S.C. § 1252(a)(2)(B)® and (ii) did not apply to agency decisions made discretionary by regulation. Specifically, these included the denials of motions to reopen and motions for continuance. In Kueana the Supreme Court held that § 1252(a)(2)(B)(ii) does not bar judicial review of agency decisions made discretionary by regulation rather than by statute. See Kucana, 130 S.Ct. at 839-40. The Court interpreted subsection (B)(ii) to allow judicial review of a motion to reopen, which was made discretionary by regulation. See Kucana, 130 S.Ct. at 840; 8 C.F.R. § 1003.2(a). Though Kucana’s holding extended only to subsection (B)(ii), some of the Court’s analysis suggested broader implications. In construing the statute, the Court relied on the “presumption favoring judicial review of administrative action.” Id. at 839. The Court also emphasized that decisions on a motion to reopen are adjunct, procedural rulings, which do not concern substantive relief, but instead ensure that aliens have a fair chance to present their claims. Id. at 837. But the Court declined to decide whether a discretionary procedural" }, { "docid": "23269422", "title": "", "text": "This Court, and the Supreme Court, have treated statutory motions to reopen differently from regulatory (i.e., sua sponte) motions to reopen. For example, we have held that Section 1252(a)(2)(B), which eliminates our jurisdiction to review denials of discretionary relief in removal proceedings, applies to regulatory motions to reopen. Xue Yong Zhang, 617 F.3d at 663-64. Because such decisions are committed to agency discretion, we lack jurisdiction to review them. However, as this Court and the Supreme Court have held, the same rale does not apply to statutory motions to reopen. Kucana, 130 S.Ct. at 840. Decisions on such motions are subject to judicial review via petitions for review under Section 1252. Id.; Jin Bo Zhao, 452 F.3d at 159; accord Cruz v. Att’y Gen. of U.S., 452 F.3d 240, 246 (3d Cir.2006) (“Implicit in [the Section 1252(a)(1) ] jurisdictional grant is the authority to review the denial of a motion to reopen any such final order.”). Similarly, although this Court found that the Attorney General’s departure bar regulation applied to regulatory motions to reopen, Xue Yong Zhang, 617 F.3d at 663— 64, we have not applied that regulation to statutory motions to reopen, see id. at 654 n. 2, 664 (explicitly declining to decide whether the departure bar regulation applies to statutory motions to reopen). C. The Government argues that the 30-day filing deadline does not raise Suspension Clause concerns because the statutory motion to reopen process is an adequate and effective substitute for habeas corpus. 1. “At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.” St. Cyr, 533 U.S. at 301, 121 S.Ct. 2271. The Supreme Court has been careful “not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post>-1789 developments that define the present scope of the writ.” Boumediene, 553 U.S. at 746, 128 S.Ct. 2229 (citing St. Cyr, 533 U.S. at 300-01, 121 S.Ct. 2271). As the Supreme Court has stated, it is “uncontroversial” that the" }, { "docid": "4118955", "title": "", "text": "acted ineffectively by not advising the respondent to pursue this form of relief.” Id. The Board also declined to reopen his removal order sua sponte, finding that even with the changes from St. Cyr and Judulang, Zambrano-Reyes would not be eligible for reopening or discretionary relief because of his unlawful reentry into the United States. See 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 1003.44(k)(2). Zambrano-Reyes now petitions for review of the Board’s denial of his motion to reopen his removal proceedings. II. Analysis A. Jurisdiction We have jurisdiction to review the Board’s denial of Zambrano-Reyes’s motion to reopen, though that conclusion takes a bit of an explanation. To summarize, we have jurisdiction to review a denial of a motion to reopen so long as we would have jurisdiction to review the underlying order. We would have jurisdiction over Zambrano-Reyes’s original removal order because he claims that it involved constitutional and legal error. Our jurisdiction does not mean, however, that relief on the merits could be available. Appellate courts ordinarily have jurisdiction to review the Board’s denial of a motion to reopen. See Kucana v. Holder, 558 U.S. 233, 248-54, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (courts have jurisdiction over motion to reopen where Board’s decision on the motion is committed to agency discretion by regulation rather than by statute); see also Tapia-Lemos v. Holder, 696 F.3d 687, 689 (7th Cir.2012) (“Denial of a bona fide motion to reopen is reviewable under 8 U.S.C. § 1252(a).”). But Kucana left open the question “whether review of a reopening denial would be precluded if the court would lack jurisdiction over the alien’s underlying claim for relief.” Kucana, 558 U.S. at 250 n. 17, 130 S.Ct. 827. In this circuit, the default answer is that “we do not have jurisdiction over the motions to reopen or reconsider if we lack jurisdiction over the underlying order.” See Cruz-Mayaho v. Holder, 698 F.3d 574, 577 (7th Cir.2012). Thus, we have jurisdiction to review the Board’s denial of Zambrano-Reyes’s motion to reopen his removal order only if we would have jurisdiction to review the Board’s 2000" }, { "docid": "19643970", "title": "", "text": "spontepower to reopen cases. See ibid.The Court of Appeals thus dismissed Mata's appeal for lack of jurisdiction. Every other Circuit that reviews removal orders has affirmed its jurisdiction to decide an appeal, like Mata's, that seeks equitable tolling of the statutory time limit to file a motion to reopen a removal proceeding.We granted certiorari to resolve this conflict. 574 U.S. ----, 135 S.Ct. 1039, 190 L.Ed.2d 907 (2015). And because the Federal Government agrees with Mata that the Fifth Circuit had jurisdiction over his appeal, we appointed an amicus curiaeto defend the judgment below.We now reverse. II As we held in Kucana v. Holder,circuit courts have jurisdiction when an alien appeals from the Board's denial of a motion to reopen a removal proceeding. See 558 U.S., at 242, 253, 130 S.Ct. 827. The INA, in combination with a statute cross-referenced there, gives the courts of appeals jurisdiction to review \"final order[s] of removal.\" 8 U.S.C. § 1252(a)(1); 28 U.S.C. § 2342. That jurisdiction, as the INA expressly contemplates, encompasses review of decisions refusing to reopen or reconsider such orders. See 8 U.S.C. § 1252(b)(6)(\"[A]ny review sought of a motion to reopen or reconsider [a removal order] shall be consolidated with the review of the [underlying] order\"). Indeed, as we explained in Kucana,courts have reviewed those decisions for nearly a hundred years; and even as Congress curtailed other aspects of courts' jurisdiction over BIA rulings, it left that authority in place. See 558 U.S., at 242-251, 130 S.Ct. 827. Nothing changes when the Board denies a motion to reopen because it is untimely-nor when, in doing so, the Board rejects a request for equitable tolling. Under the INA, as under our century-old practice, the reason for the BIA's denial makes no difference to the jurisdictional issue. Whether the BIA rejects the alien's motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision. Similarly, that jurisdiction remains unchanged if the Board, in addition to denying the alien's statutorily authorized motion, states that it will not exercise its" }, { "docid": "15009231", "title": "", "text": "delineated in the INA.” 510 F.3d at 11. Congress, it said, \"inten[ded] to channel, rather than bar, judicial review through the mechanism of section 1252(b)(9)” and to read § 1252(b)(9) as encompassing claims \"that cannot effectively be handled through the available administrative process” would be inconsistent with the presumption \"that there be clear and convincing evidence of legislative intent before restricting access to judicial review entirely.” Id. As discussed at length infra Part 111(A)(3)(b), Chehazeh’s claim could not be \"raised efficaciously” if it could be brought only after a final order of removal. Thus, even under the First Circuit's reasoning in Aguilar, § 1252(b)(9) would, it seems, not bar review of Chehazeh’s claim. . We recognize, of course, that refusing to reconsider is not the same as reconsidering. We have already opined that there is a material difference between an agency doing something and refusing to do something. Here, however, that difference only reinforces our point because, as explained in Heckler, when an agency refuses to take action, it is generally afforded a greater degree of deference than when it actually takes action. 470 U.S. at 832, 105 S.Ct. 1649. Thus, when, as in this instance, even the refusal to reconsider a case is not encompassed within § 1252(g)’s protection of prosecutorial discretion, the act of reconsidering a case — which is afforded less deference — should not be either. . Nor does 8 U.S.C. § 1252(a)(2)(B)(ii) apply here. In Kucana v. Holder, the Supreme Court held that 8 U.S.C. § 1252(a)(2)(B)(ii) applies only to \"statutory, but not to regulatory\" grants of discretion. — U.S. -, 130 S.Ct. 827, 831, 175 L.Ed.2d 694 (2010). As the Court explained, the BIA's power to reopen asylum proceedings is specified not in a statute but in regulation: \"Congress did not codify the regulation delegating to the BIA discretion to grant or deny motions to reopen. See 8 CFR § 1003.2(a) (reopening may be entertained not only on application; the Board 'may at any time reopen ... on its own motion any case in which it has rendered a decision').” Id. at 838. Indeed," }, { "docid": "19643972", "title": "", "text": "separate sua sponteauthority to reopen the case. See supra,at 2153. In Kucana,we declined to decide whether courts have jurisdiction to review the BIA's use of that discretionary power. See 558 U.S., at 251, n. 18, 130 S.Ct. 827. Courts of Appeals, including the Fifth Circuit, have held that they generally lack such authority. See, e.g., Enriquez-Alvarado v. Ashcroft,371 F.3d 246, 249-250 (C.A.5 2004);Tamenut v. Mukasey,521 F.3d 1000, 1003-1004 (C.A.8 2008)(en banc) (per curiam) (citing other decisions). Assuming arguendo that is right, it means only that judicial review ends after the court has evaluated the Board's ruling on the alien's motion. That courts lack jurisdiction over one matter (the sua spontedecision) does not affect their jurisdiction over another (the decision on the alien's request). It follows, as the night the day, that the Court of Appeals had jurisdiction over this case. Recall: As authorized by the INA, Mata filed a motion with the Board to reopen his removal proceeding. The Board declined to grant Mata his proposed relief, thus conferring jurisdiction on an appellate court under Kucana. The Board did so for timeliness reasons, holding that Mata had filed his motion after 90 days had elapsed and that he was not entitled to equitable tolling. But as just explained, the reason the Board gave makes no difference: Whenever the Board denies an alien's statutory motion to reopen a removal case, courts have jurisdiction to review its decision. In addition, the Board determined not to exercise its sua sponteauthority to reopen. But once again, that extra ruling does not matter. The Court of Appeals did not lose jurisdiction over the Board's denial of Mata's motion just because the Board also declined to reopen his case sua sponte. Nonetheless, the Fifth Circuit dismissed Mata's appeal for lack of jurisdiction. That decision, as described earlier, hinged on \"constru[ing]\" Mata's motion as something it was not: \"an invitation for the BIA to exercise\" its sua sponteauthority. 558 Fed.Appx., at 367; supra,at 2153 - 2154. Amicus's defense of that approach centrally relies on a merits-based premise: that the INA forbids equitable tolling of the 90-day filing" }, { "docid": "22132565", "title": "", "text": "L.Ed.2d 449 (2011). Judulang disapproved a BIA practice concerning the granting of § 212(c) relief. Invoking the change of law announced in Judulang, Tolchin filed on Bonilla’s behalf a supplement to his motion to reopen, asking the Board to exercise its sua sponte jurisdiction and reopen his deportation order so that he could apply for § 212(c) relief under Judulang. The Board denied Bonilla’s motion to reopen for adjustment of status. It held that equitable tolling of the filing period was not merited, as Bonilla did not demonstrate either due diligence or prejudice. In addition, the Board declined to exercise its sua sponte authority to reopen the deportation proceedings. Bonilla timely filed a petition for review. II. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction under 8 U.S.C. § 1252 to review the Board’s denial of Bonilla’s motion to reopen for adjustment of status. See Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). We review the Board’s denial of a motion to reopen for abuse of discretion, but review purely legal questions de novo. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). “The BIA abuses its discretion when its decision is arbitrary, irrational, or contrary to law.” Avagyan, 646 F.3d at 678 (citation and internal quotation marks omitted). The Supreme Court recently left open the question “whether federal courts may review the Board’s decision not to reopen removal proceedings sua sponte.” Kucana v. Holder, 558 U.S. 233, 251 n.18, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). Before Kucana, we had held that, generally, we lack jurisdiction to review denials of sua sponte reopening. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002). But we have not specifically addressed whether we have jurisdiction to review the Board’s denial of a motion to reopen sua sponte for the limited purpose of determining whether the Board based its decision on legal or constitutional error. Several circuits have held that courts of appeal do have such limited jurisdiction. See, e.g., Salgado-Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir. 2013); Pllumi v. Attorney General, 642 F.3d 155," }, { "docid": "23264599", "title": "", "text": "— of judicial review of agency decisions. See Bowen v. Massachusetts, 487 U.S. 879, 908 n. 46,108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (“Much recent academic writing emphasizes the importance of ... Court review of agency action. The theoretical justification for judicial review of agency action is grounded in concerns about constraining the exercise of discretionary power by administrative agencies. That power is legitimized by the technical expertise of agencies. But judicial review promotes fidelity to statutory requirements, and, when congressional intent is ambiguous, it increases the likelihood that the regulatory process will be a responsible exercise of discretion.”) (quoting Delaware Div. of Health & Soc. Sews, v. Dept. of Health & Human Sews., 665 F.Supp. 1104, 1117-18 (D.Del.1987)). Although circuit precedent bars that review, there is good reason here to reexamine our cases on the subject. However, for the reasons stated, we GRANT the government’s motion to dismiss the petition for review for want of jurisdiction. ALICE M. BATCHELDER, Chief Judge, concurring. I concur with the lead opinion’s conclusion that we do not have jurisdiction to review either the original decision of the Board of Immigration Appeals or their decision not to reopen proceedings sua sponte, and that Petitioner’s appeal must be dismissed. I write separately to contest the notion set forth in the lead opinion that “the Supreme Court’s recent decision in Kucana v. Holder, — U.S. -, 130 S.Ct. 827, — L.Ed.2d- (2010), casts considerable doubt on our circuit precedent that dictates” that we have no jurisdiction to review the BIA’s denial of Tushar Gor’s motion to reopen sua sponte. The attempts of the lead opinion to make this case look like Kucana are creative but, ultimately, unconvincing. This case is fundamentally different from Kucana for two vitally important and, in my opinion, obvious reasons. First, unlike the relevant arguments in Kucana — and unlike the lead opinion’s characterization of the government’s arguments here — the government here does not base its jurisdictional arguments on the text of 8 U.S.C. § 1252(a)(2)(B)(ii), which the lead opinion concedes was the basis for the Kucana decision. Lead Op. at" }, { "docid": "22132580", "title": "", "text": "no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler, 470 U.S. at 830, 105 S.Ct. 1649. This exception to judicial review is “very narrow,” and applies “in those rare instances wheré statutes are drawn in such broad terms that in a given case there is no law to apply.” Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)) (internal quotation marks omitted). Drawing on Heckler, Ekimian explained that the Ekimians “[could not] point to any statutory, regulatory, or case law definition of ‘exceptional circumstances’ applicable to the BIA’s sua sponte power under § 3.2(a),” and so rejected the argument that “exceptional situations” was a meaningful judicial standard for reviewing the Board’s discretion. 303 F.3d at 1159. “Because we [could not] discover a sufficiently meaningful standard against which to judge the BIA’s decision not to reopen” sua sponte, Ekimian held, “we do not have jurisdiction to review the BIA’s refusal to reopen deportation proceedings sua sponte.” Id. at 1159-60. Ekimian’s holding that the “exceptional situation” benchmark does not provide a sufficiently meaningful standard to permit judicial review remains good law. This court has relied on or approvingly cited Ekimian in fifteen published opinions. But neither Ekimian nor any of the later cases considered the question presented here: whether appellate courts have jurisdiction to review the Board’s denial of a motion to reopen sua sponte for the limited purpose of identifying legal or constitutional error. Neither the immigration statute nor' any regulation expressly precludes ju dicial review of motions to reopen, whether sua sponte or otherwise. Absent any such proscription,- there is a “presumption favoring interpretations of statutes [to] allow judicial review of administrative action.” Kucana, 558 U.S. at 237, 130 S.Ct. 827 (alterations in original) (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 64, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993)); see also Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995) (“executive determinations generally -are subject to judicial review”). That presumption is “well-settled,” Kucana, 558" }, { "docid": "4118956", "title": "", "text": "denial of a motion to reopen. See Kucana v. Holder, 558 U.S. 233, 248-54, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (courts have jurisdiction over motion to reopen where Board’s decision on the motion is committed to agency discretion by regulation rather than by statute); see also Tapia-Lemos v. Holder, 696 F.3d 687, 689 (7th Cir.2012) (“Denial of a bona fide motion to reopen is reviewable under 8 U.S.C. § 1252(a).”). But Kucana left open the question “whether review of a reopening denial would be precluded if the court would lack jurisdiction over the alien’s underlying claim for relief.” Kucana, 558 U.S. at 250 n. 17, 130 S.Ct. 827. In this circuit, the default answer is that “we do not have jurisdiction over the motions to reopen or reconsider if we lack jurisdiction over the underlying order.” See Cruz-Mayaho v. Holder, 698 F.3d 574, 577 (7th Cir.2012). Thus, we have jurisdiction to review the Board’s denial of Zambrano-Reyes’s motion to reopen his removal order only if we would have jurisdiction to review the Board’s 2000 removal order itself. Our jurisdiction extends to Zambrano-Reyes’s original removal order to the extent that he argues on judicial review that it involved constitutional or legal error. Section 1252(a)(2)(D) of Title 8 of the U.S. Code provides that “Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review. ...” 8 U.S.C. § 1252(a)(2)(D). This exception applies to nearly all limits on jurisdiction in the INA, including two that would otherwise apply to ZambranoReyes. First, it expressly applies to section 1252(a)(2)(C), which would otherwise bar our review of Zambrano-Reyes’s removal order because it was on account of an aggravated felony. See Alvarado-Fonseca v. Holder, 631 F.3d 385, 389 (7th Cir.2011) (section 1252(a)(2)(D) allowed jurisdiction to review order removing alien convicted of committing an aggravated felony despite section 1252(a)(2)(C)). Second, section 1252(a)(2)(D) also applies to our jurisdiction despite 8 U.S.C. § 1231(a)(5), which provides" }, { "docid": "23269421", "title": "", "text": "denying diligent petitioner’s motion to reopen as number- and time-barred). Second, Congress acted to “allow for more prompt removal” and to restrict the ability of aliens to remain in this country pending judicial review. Nken, 129 S.Ct. at 1755. Congress did so by repealing both the statutory bar to judicial review of removal orders when the noncitizen had departed the country, IIRIRA § 306(b) (repealing 8 U.S.C. § 1105a), and the presumption of an automatic stay, Nken, 129 S.Ct. at 1755. After IIRIRA, “courts were no longer prohibited from proceeding with review once an alien departed.” Id. After Congress enacted IIRIRA, the Attorney General promulgated new regulations. Among the new regulations, the Attorney General provided for sua sponte motions to reopen and imposed a bar to BIA review of motions to reopen when a noncitizen had departed the country. See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312, 10,321 (Mar. 6, 1997) (discussing departure bar regulation currently at 8 C.F.R. § 1003.2(d)). This Court, and the Supreme Court, have treated statutory motions to reopen differently from regulatory (i.e., sua sponte) motions to reopen. For example, we have held that Section 1252(a)(2)(B), which eliminates our jurisdiction to review denials of discretionary relief in removal proceedings, applies to regulatory motions to reopen. Xue Yong Zhang, 617 F.3d at 663-64. Because such decisions are committed to agency discretion, we lack jurisdiction to review them. However, as this Court and the Supreme Court have held, the same rale does not apply to statutory motions to reopen. Kucana, 130 S.Ct. at 840. Decisions on such motions are subject to judicial review via petitions for review under Section 1252. Id.; Jin Bo Zhao, 452 F.3d at 159; accord Cruz v. Att’y Gen. of U.S., 452 F.3d 240, 246 (3d Cir.2006) (“Implicit in [the Section 1252(a)(1) ] jurisdictional grant is the authority to review the denial of a motion to reopen any such final order.”). Similarly, although this Court found that the Attorney General’s departure bar regulation applied to regulatory motions to reopen, Xue" }, { "docid": "19643971", "title": "", "text": "or reconsider such orders. See 8 U.S.C. § 1252(b)(6)(\"[A]ny review sought of a motion to reopen or reconsider [a removal order] shall be consolidated with the review of the [underlying] order\"). Indeed, as we explained in Kucana,courts have reviewed those decisions for nearly a hundred years; and even as Congress curtailed other aspects of courts' jurisdiction over BIA rulings, it left that authority in place. See 558 U.S., at 242-251, 130 S.Ct. 827. Nothing changes when the Board denies a motion to reopen because it is untimely-nor when, in doing so, the Board rejects a request for equitable tolling. Under the INA, as under our century-old practice, the reason for the BIA's denial makes no difference to the jurisdictional issue. Whether the BIA rejects the alien's motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision. Similarly, that jurisdiction remains unchanged if the Board, in addition to denying the alien's statutorily authorized motion, states that it will not exercise its separate sua sponteauthority to reopen the case. See supra,at 2153. In Kucana,we declined to decide whether courts have jurisdiction to review the BIA's use of that discretionary power. See 558 U.S., at 251, n. 18, 130 S.Ct. 827. Courts of Appeals, including the Fifth Circuit, have held that they generally lack such authority. See, e.g., Enriquez-Alvarado v. Ashcroft,371 F.3d 246, 249-250 (C.A.5 2004);Tamenut v. Mukasey,521 F.3d 1000, 1003-1004 (C.A.8 2008)(en banc) (per curiam) (citing other decisions). Assuming arguendo that is right, it means only that judicial review ends after the court has evaluated the Board's ruling on the alien's motion. That courts lack jurisdiction over one matter (the sua spontedecision) does not affect their jurisdiction over another (the decision on the alien's request). It follows, as the night the day, that the Court of Appeals had jurisdiction over this case. Recall: As authorized by the INA, Mata filed a motion with the Board to reopen his removal proceeding. The Board declined to grant Mata his proposed relief, thus conferring jurisdiction on an appellate court under" }, { "docid": "22132566", "title": "", "text": "novo. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). “The BIA abuses its discretion when its decision is arbitrary, irrational, or contrary to law.” Avagyan, 646 F.3d at 678 (citation and internal quotation marks omitted). The Supreme Court recently left open the question “whether federal courts may review the Board’s decision not to reopen removal proceedings sua sponte.” Kucana v. Holder, 558 U.S. 233, 251 n.18, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). Before Kucana, we had held that, generally, we lack jurisdiction to review denials of sua sponte reopening. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002). But we have not specifically addressed whether we have jurisdiction to review the Board’s denial of a motion to reopen sua sponte for the limited purpose of determining whether the Board based its decision on legal or constitutional error. Several circuits have held that courts of appeal do have such limited jurisdiction. See, e.g., Salgado-Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir. 2013); Pllumi v. Attorney General, 642 F.3d 155, 160 (3d Cir. 2011); Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009). For reasons explained in Part III.B, infra, we agree with those decisions. III. DISCUSSION A. Motion to Reopen for Adjustment of Status Based on Ineffective Assistance of Counsel 1. Ineffective Assistance of Counsel as a Basis for Equitable Tolling Generally, a motion to reopen must be filed “within 90 days of the date of entry of a final administrative order of removal,” 8 U.S.C. § 1229a(c)(7)(C)(i), and an alien is limited to one such motion. Id, § 1229a(c)(7)(A). But, because Bonilla’s final deportation order preceded the imposition of the current time and number limitations on motions to reopen, his motion to reopen was due by September 30, 1996. See Executive Office for Immigration Review; Motions and Appeals in Immigration Proceedings, 61 Fed. Reg. 18900-01 (Apr. 29, 1996). Bonilla did not file the motion to reopen at issue in this case until December 1,2011, more than fifteen years late. Failure to meet the filing deadline is not fatal where equitable tolling is" }, { "docid": "23264603", "title": "", "text": "The Kucana Court recognized this difference when it expressly declined to express any opinion “on whether federal courts may review the Board’s decision not to reopen removal proceedings sua sponte.\" Kucana, 130 S.Ct. at 839 n. 18. The lead opinion goes to great lengths to show why the Supreme Court’s express refusal to opine on the issue decided by our prior holdings in Barry and Harchenko should be viewed as an indication that the time has come to abandon those holdings. In doing so, the lead opinion ignores the huge gulf that separates a statutory right to move to reopen and a purely discretionary non-statutory power to reopen sua sponte. The Kucana Court held that the text of § 1252 barred judicial review “only when Congress itself set out the Attorney General’s discretionary authority in the statute.” Id. at 837 n. 13. Any attempts to proscribe judicial review by regulation only, including 8 C.F.R. § 1003.2(a), were invalid. “Had Congress elected to insulate denials of motions to reopen from judicial review, it could have so specified.” Kucana, 130 S.Ct. at 838. The lead opinion here clearly interprets this language to mean that all BIA decisions must be subject to judicial review, except where Congress has expressly removed jurisdiction. When the power to reopen sua sponte is viewed in context, however, this conclusion is completely unsupportable. The Kucana Court was faced with: (1) an express statutory right to file a motion to reopen proceedings; and (2) agency action that attempted to declare BIA responses to an immigrant’s exercise of that right off-limits to judicial review. The Court described the motion to reopen as “an ‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of immigration proceedings.” Id. at 834 (quoting Dada v. Mukasey, 554 U.S. 1, 128 S.Ct. 2307, 2317-19, 171 L.Ed.2d 178 (2008)). This safeguard had been put in place by Congress, id. at 838, and only an express removal of jurisdiction would suf fice. Any ambiguity was to be resolved in favor of judicial review because the cannons of statutory construction establish a presumption of judicial review of" }, { "docid": "15009232", "title": "", "text": "of deference than when it actually takes action. 470 U.S. at 832, 105 S.Ct. 1649. Thus, when, as in this instance, even the refusal to reconsider a case is not encompassed within § 1252(g)’s protection of prosecutorial discretion, the act of reconsidering a case — which is afforded less deference — should not be either. . Nor does 8 U.S.C. § 1252(a)(2)(B)(ii) apply here. In Kucana v. Holder, the Supreme Court held that 8 U.S.C. § 1252(a)(2)(B)(ii) applies only to \"statutory, but not to regulatory\" grants of discretion. — U.S. -, 130 S.Ct. 827, 831, 175 L.Ed.2d 694 (2010). As the Court explained, the BIA's power to reopen asylum proceedings is specified not in a statute but in regulation: \"Congress did not codify the regulation delegating to the BIA discretion to grant or deny motions to reopen. See 8 CFR § 1003.2(a) (reopening may be entertained not only on application; the Board 'may at any time reopen ... on its own motion any case in which it has rendered a decision').” Id. at 838. Indeed, it was for that reason, the Court held that \"[t]he BIA has broad discretion, conferred by the Attorney General, 'to grant or deny a motion to reopen,’ 8 CFR § 1003.2(a), but courts retain jurisdiction to review, with due respect, the Board's decision.” Id. at 838. . We have previously applied Sixth Amendment jurisprudence by analogy in the immigration context. See Fadiga v. Att'y Gen., 488 F.3d 142, 157 & n. 23 (3d Cir.2007) (borrowing from Sixth Amendment jurisprudence in an immigration case because, although \"[a]s a matter of formal constitutional doctrine, the Sixth Amendment ... does not apply in a civil context 'such as immigration proceedings!,] ... we cannot treat immigration proceedings like everyday civil proceedings ... because ... the liberty of an individual is at stake in deportation proceedings” (internal quotation marks omitted)). . The government also makes the further claim that the District Court lacks jurisdiction because Chehazeh has not exhausted his administrative remedies. With respect to the harm of being forced to relitigate his case, however, Chehazeh has exhausted the only" }, { "docid": "16838544", "title": "", "text": "Supreme Court held in Kucana that 8 U.S.C. § 1252(a)(2)(B)(ii), which strips courts of jurisdiction to review discretionary actions by the Attorney General, “does not proscribe judicial review of denials of motions to reopen,” 558 U.S. at 249, 130 S.Ct. 827, but offered “no opinion on whether federal courts may review the [BIAj’s decision not to reopen removal proceedings sua sponte,” id. at 251 n. 18, 130 S.Ct. 827. Accordingly, under Kucana and in the absence of Barry and Harchenko, § 1252(a)(2)(D) would enable constitutional claims and questions of law to survive any bar to judicial review of the BIA’s sua sponte denials that “the confluence of ... § 1252(a)(2)(B)(ii) and 8 C.F.R. § 1003.2[a]” might otherwise impose. Gor, 607 F.3d at 187. But Barry and Harchenko expressly hold that the BIA’s exercise of its sua sponte authority “ ‘is committed to [its] unfettered discretion ... and therefore is not subject to judicial review.’ ” Barry, 524 F.3d at 723 (quoting Harchenko, 379 F.3d at 410-11). And, as Chief Judge Batchelder has noted, neither case relied on § 1252(a)(2)(B)(ii). Gor, 607 F.3d at 195 (Batchelder, C.J., concurring). Instead, “[t]he Harchenko and Barry panels concluded, as has nearly every other Circuit to consider the question, that the BIA’s exercise of its sua sponte authority was not renewable because there was simply ‘no law to apply.’ ” Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). Thus, according to Chief Judge Batchelder, “the firm requirement that only Congress may remove [the courts’] jurisdiction [to review the exercise of that authority] simply does not exist.” Id. Put differently, Congress need not designate the BIA’s sua sponte authority as discretionary by statute in order for the Attorney General’s regulatory determination that the power is discretionary, see 8 C.F.R. § 1003.2(a), to deprive courts of jurisdiction to review its exercise. This is so because “[t]he power of the BIA to reopen sua sponte arises only from its own regulations.” Gor, 607 F.3d at 195 (Batchelder, C.J., concurring) (second emphasis added). Consequently, Congress’s determination" }, { "docid": "23264602", "title": "", "text": "prior to the Supreme Court’s decision in Kucana, and we had previously held that § 1252(a)(2)(B)(ii) proscribed judicial review of BIA denials of motions to reopen. Ghazali v. Holder, 585 F.3d 289, 291 (6th Cir.2009) (“The Immigration and Nationality Act strips federal courts of jurisdiction to review decisions specified under 8 U.S.C. §§ 1151-1381 to be in the discretion of the Attorney General.”) (internal quotation marks and brackets omitted). The government could have attempted to argue that § 1252 and Ghazali precluded review, but did not. It is therefore troubling that the lead opinion chooses to mischaracterize the government’s arguments. Doing so allows the lead opinion to create the illusion that this case is analogous to Kucana. The second reason why this case differs from Kucana is the fact that there is a world of difference between the immigrant’s statutory right to file a motion to reopen, which was at issue in Kucana, and the discretionary right of the BIA — a right neither granted by nor addressed by Congress — to reopen sua sponte. The Kucana Court recognized this difference when it expressly declined to express any opinion “on whether federal courts may review the Board’s decision not to reopen removal proceedings sua sponte.\" Kucana, 130 S.Ct. at 839 n. 18. The lead opinion goes to great lengths to show why the Supreme Court’s express refusal to opine on the issue decided by our prior holdings in Barry and Harchenko should be viewed as an indication that the time has come to abandon those holdings. In doing so, the lead opinion ignores the huge gulf that separates a statutory right to move to reopen and a purely discretionary non-statutory power to reopen sua sponte. The Kucana Court held that the text of § 1252 barred judicial review “only when Congress itself set out the Attorney General’s discretionary authority in the statute.” Id. at 837 n. 13. Any attempts to proscribe judicial review by regulation only, including 8 C.F.R. § 1003.2(a), were invalid. “Had Congress elected to insulate denials of motions to reopen from judicial review, it could have so" }, { "docid": "22540794", "title": "", "text": "Mejia and amicus curiae, The American Immigration Council, counter that a recent Supreme Court ruling effectively overturns that precedent. See Kucana v. Holder, — U.S. -, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). “This court has jurisdiction to determine whether jurisdiction exists.” Morales v. Gonzales, 478 F.3d 972, 977 (9th Cir.2007) (internal quotation marks omitted). We agree with the government’s position. The Kucana Court found that a motion to reopen was reviewable. Kucana, 130 S.Ct. at 840. “[T]he presumption favoring judicial review of administrative action” means that “executive determinations generally are subject to judicial review.” Id. at 839. Precluding review requires clear and convincing evidence that Congress intended to dislodge this presumption. Id. The Court looks for such evidence in statutory language that reveals Congress’s intent to preclude review. Id. at 838, 840. An agency’s regulatory language with nothing more cannot bar a petitioner’s access to the federal courts. Id. The Court noted explicit statutory references employed by Congress to make certain agency decisions unreviewable. Id. at 831-32 (citing 8 U.S.C. § 1252(a)(2)(B)). None of these statutory reservations of authority, however, exempted from federal court review a BIA denial of a motion to reopen a removal proceeding. Kucana, 130 S.Ct. at 840; 8 C.F.R. § 1003.2(a). The overall thrust of Kucana suggests that sua sponte reopening should be subject to review. There is a longstanding tradition of judicial review of reopenings in immigration cases; there is no statute suggesting review is not available; there is a presumption favoring review; and there is a separation-of-powers concern against giving the Executive authority to withhold cases 'from judicial review. See id. at 831. Were this an issue of first impression, a right to review might be recognized. Prior to Kucana, however, this court and nine other circuits found a decision not to reopen sua sponte to be one that was committed to agency discretion by law and, therefore, unreviewable. See Ekimian, 303 F.3d at 1159; Tamenut v. Mukasey, 521 F.3d 1000, 1003-04 (8th Cir.2008) (en banc) (summarizing other circuit precedents); 5 U.S.C. § 701(a)(2). Unlike Kucana, the Ekimian court was not looking for" }, { "docid": "16838540", "title": "", "text": "reh’g en banc denied, No. 08-3859, 2010 U.S.App. LEXIS 21449 (Oct. 5, 2010), and in an unpublished case that involved similar claims, see Arestov v. Holder, 489 Fed.Appx. 911, 921 & n. 6 (6th Cir.2012) (“With respect to the BIA’s refusal to exercise its sua sponte authority to grant [the petitioner’s] motion to reopen, [the petitioner] contends that the Supreme Court’s decision in Kucana ... controls our result.... [0]ur court has declined to grant an initial hearing en banc in this case.”). Further, this court already has determined that Barry and Harchenko were not overruled by Kucana. There, the Supreme Court held that 8 U.S.C. § 1252(a)(2)(B)(ii), which strips courts of jurisdiction to review discretionary actions by the Attorney General, “does not proscribe judicial review of denials of motions to reopen.” 558 U.S. at 249,130 S.Ct. 827. The reason, according to Kucana, is that the BIA’s discretion regarding such motions is regulatory, rather than statutory, in origin. Id. at 248, 130 S.Ct. 827 (“If Congress wanted the jurisdictional bar to encompass decisions specified as discretionary by regulation along with those made discretionary by statute ... [it] could easily have said so.”). This holding is consistent with the longstanding practice of federal courts generally to review administrative denials of motions to reopen for abuse of discretion. Id. at 242, 130 S.Ct. 827. And, as this court since has recognized, Kucana therefore “casts considerable doubt on ... circuit precedent that dictates that [the exercise of the BIA’s sua sponte authority to act on such motions is beyond judicial review].” Gor, 607 F.3d at 182; accord id. at 197 (Cole, J., concurring). But the Supreme Court specifically stated in Kucana that it “[was] expressing] no opinion on whether federal courts may review the [BIA]’s decision not to reopen removal proceedings sua sponte.” 558 U.S. at 251 n. 18, 130 S.Ct. 827. It also expressly recognized that federal “Courts of Appeals have held that such decisions are unreviewable because sua sponte reopening is committed to agency discretion by law.” Id. (citing, inter alia, 5 U.S.C. § 701(a)(2)). Accordingly, “Kucana cannot fairly be read as" }, { "docid": "6245105", "title": "", "text": "Mazariegos petitioned this court for review of the BIA’s decision. JURISDICTION We start with a bone of contention. The government claims we lack jurisdiction to review (what it calls) a purely discretionary denial of a motion to reopen. The government misses the mark. The law it cites indeed provides that courts cannot review the discretionary component of the Attorney General’s section 212(h) waiver decision. See 8 U.S.C. § 1182(h) (providing that “[n]o court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection”); id. § 1252(a)(2)(B)© (barring review of “any judgment regarding the granting of relief’ under section 1182(h), among others). However, we are not being asked to decide the propriety of a decision to grant or deny the waiver. Recall, Mazariegos never sought review of that decision. Rather, we are considering whether the BIA erred in not reopening the proceedings, a determination we do have jurisdiction over. See Mata v. Lynch, — U.S. —, 135 S.Ct. 2150, 2154, 192 L.Ed.2d 225, 2015 WL 2473335, at *4 (June 15, 2015) (“[Cjircuit courts have jurisdiction when an alien appeals from the Board’s denial of a motion to reopen a removal proceeding.”); Neves v. Holder, 613 F.3d 30, 33 (1st Cir.2010) (per curiam) (“[Decisions on motions to reopen proceedings, like other proceedings made discretionary by regulation and not by statute, are generally subject to judicial review.” (citing Kucana v. Holder, 558 U.S. 233, 237, 253, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010))). And that grant of jurisdiction does not change simply because the BIA found that Mazariegos would not be entitled, as a matter of discretion, to the relief he sought. See Mata, 135 S.Ct. at 2154, 2015 WL 2473335, at *4 (“Under the INA, as under our century-old practice, the reason for the BIA’s denial makes no difference to the jurisdictional issue.”). With that resolved, we proceed to the merits. DISCUSSION Because a motion to reopen removal proceedings is a disfavored tool, given the threat it poses to finality, the BIA has a fair amount of latitude to grant or deny" } ]

[ { "docid": "20371638", "title": "", "text": "the March, 1968 refusal. It is apparent that the General Counsel cannot be compelled either by the Board or this court to bring an action or amend his complaint because under § 3(d) of the Act he “has unreviewable discretion to refuse to institute an unfair labor practice complaint,” Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 913, 17 L.Ed.2d 842 (1967), nor can the equity power of a court compel the General Counsel to amend his complaint, no matter how heinous the wrong sought to be remedied. United Electrical Contractors Association v. Ordman, 366 F.2d 776 (2 Cir. 1966). The refusal of the General Counsel to include the September, 1967, rejection of Firmin-Guyon’s application for registration was because the intervenor there sought a supervisory position whereas in the March, 1968, application he sought any kind of position. The intervenor bases his claim on Frito Co., Western Division v. NLRB, 330 F.2d 458 (9 Cir. 1964), which made an exception to the rule that the General Counsel’s power over the contents of the complaint is absolute. In Frito the court held that where evidence of other unfair labor practices is admitted at the hearing without any objection by the General Counsel the complaint is deemed, to that extent, to have been amended. In the present case, as noted, the General Counsel did object. Firmin-Guyon must seek a remedy for the wrongs suffered through a separate action not involving the General Counsel. The petition for review by the intervenor is, therefore, denied." } ]

[ { "docid": "14201098", "title": "", "text": "settlement of the charges against the company, including reinstatement of Bova to his previous position, which the company accepted. Bova, however, declined to accept the settlement, and demanded that further proceedings on his unfair labor practice charge be undertaken. The Regional Director refused, stating that “it does not appear that it would effectuate the purposes of the Act to institute further proceedings at this time.” . We therefore find it unnecessary to decide whether several of the defendants were properly subjected to the personal jurisdiction of the district court. . Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). . E. g., United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218, 228 (1966). . E. g., San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); Peltzman v. Central Gulf Lines, Inc., 497 F.2d 332 (2d Cir. 1974); Marydale Products Co. v. United Packinghouse Workers, 322 F.2d 224 (5th Cir. 1963); Barunica v. United Hatters, Cap and Millinery Workers, 321 F.2d 764 (8th Cir. 1963). . See e. g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138-39, 95 S.Ct. 1504, 1510-11, 44 L.Ed.2d 29, 40 (1975); Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842, 853 (1967). . Leedom v. Kyne, 358 U.S. 184, 188, 79 S.Ct. 180, 184, 3 L.Ed.2d 210, 214 (1958). . Balanyi v. IBEW, 374 F.2d 723, 726 (7th Cir. 1967), citing Boire v. Miami Herald Publishing Co., 343 F.2d 17, 21 (5th Cir. 1965); accord, McLeod v. United Brotherhood of Indus. Workers, 288 F.2d 198, 201 (2d Cir. 1961); see Braden v. Herman, 468 F.2d 592 (8th Cir. 1972), cert. denied, 411 U.S. 916, 93 S.Ct. 1546, 36 L.Ed.2d 308 (1973); Saez v. Goslee, 463 F.2d 214 (1st Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 466, 34 L.Ed.2d 316 (1972); International Ass'n of Tool Craftsmen v. Miller, 389 F.Supp. 1078, 1083 (E.D. Tenn. 1974), aff’d table, 513 F.2d 631 (6th Cir. 1975); cf. NLRB v. IBEW, 445 F.2d 1015, 1016" }, { "docid": "8868623", "title": "", "text": "limit of judicial review to employers and the Secretary. Legislative History at 1191-92. In conference, the House conferees acceded to the Senate version which granted employees the right to initiate contest with respect to abatement dates and to participate as parties in employer-initiated contests. Id. . Our holding, which concerns the rights of employees under the OSHA scheme, comports with procedures adopted by Congress for the settlement of cases in other agencies. An example is the process implemented by the National Labor Relations Board. The General Counsel of the Labor Board decides whether or not to prosecute an unfair labor practice complaint. In most instances, the party that filed the complaint — the charging party — cannot compel the General Counsel to prosecute the complaint nor can the private party prosecute before the Board. In Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (1967), the Supreme Court held that “the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint” and that private parties cannot institute such proceedings. Under Labor Board rules, once the General Counsel has issued a complaint, the charging party in the case is “accorded formal recognition: he participates in the hearings as a ‘party’; he may call witnesses and cross-examine others, may file exceptions to any order of the trial examiner.... ” International Auto Workers Union v. Scofield, 382 U.S. 205, 219, 86 S.Ct. 373, 382, 15 L.Ed.2d 272 (1965). See also ILGWU v. NLRB, 501 F.2d 823 (D.C.Cir.1974); NLRB v. OCAW, 476 F.2d 1031 (1st Cir. 1973); Concrete Materials of Georgia v. NLRB, 440 F.2d 61 (5th Cir. 1971); NLRB v. Electrical Workers Local 357, 445 F.2d 1015 (9th Cir. 1971); Marine Engineers Beneficial Assn. v. NLRB, 202 F.2d 546 (3d Cir.), cert. denied, 346 U.S. 819, 74 S.Ct. 32, 98 L.Ed. 345 (1953). The charging party’s inability to initiate a complaint before the Board does not bar the party from obtaining judicial review of an adverse Board ruling. In International Auto Workers, 382 U.S. at 219, 86 S.Ct. at 382, the Supreme Court" }, { "docid": "10944957", "title": "", "text": "hearing was conducted by Joint Council No. 53, and a decision is still pending. DISCUSSION A. Section 301 Claims, Counts I and II. Section 301 of the Labor-Management Relations Act, 29 U.S.C. 185 provides that an individual employee may bring an action charging his employer with breach of the collective bargaining agreement and his union with violating its duty of fair representation in mishandling the resulting grievance. See Vaca v. Sipes, 386 U.S. 171, 186-87, 87 S.Ct. 903, 914-15, 17 L.Ed.2d 842 (1967); Hines v. Anchor Motor Freight, 424 U.S. 554, 567, 96 S.Ct. 1048, 1057, 47 L.Ed.2d 231 (1976). Neither section 301 nor any other section of the LMRA states the statute of limitations applicable to these so-called Vaca-Hines actions. The Supreme Court recently held in Del Costello v. International Broth, of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) that the statute of limitations to be applied to section 301 actions was the six month statute of limitations contained in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160 (1976). Del Costello, supra at 2293-94. Del Costello overruled United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981) which had held that the applicable statute of limitations was the 90 day statute of limitations contained in the Pennsylvania statute governing vacation of arbitration awards. Id., 103 S.Ct. at 2291. Subsequently, the Third Circuit Court of Appeals held that the ruling in Del Costello was to be applied retroactively and thus would bar any section 301 suit not brought within the six month statute of limitations. Perez v. Dana Corporation, 718 F.2d 581, 588, 114 L.R.R.M. 2814, 2820 (3d Cir.1983). Defendant argues that the six month statute runs from the date that plaintiff knew or should have known that Local 384 would not process her grievance to arbitration. Defendant Thrift-Rack’s Memorandum of Law in Support of the Motion to Dismiss or for Summary Judgment (“Defendant Thrift-Rack’s Memo”) at 6; Defendant Teamster’s Local # 384 Memorandum of Law in Support of the Motion to Dismiss or for Summary Judgment" }, { "docid": "4455994", "title": "", "text": "Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint. See United Electrical Contractors Assn. v. Ordman, 366 F.2d 776, cert. denied, 385 U.S. 1026 [87 S.Ct. 753, 17 L.Ed.2d 674], The existence of even a small group of cases in which the Board would be unwilling or unable to remedy a union’s breach of duty would frustrate the basic purposes underlying the duty of fair representation doctrine. For these reasons, we cannot assume from the NLRB’s tardy assumption of jurisdiction in these cases that Congress, when it enacted N.L.R.A. § 8(b) in 1947, intended to oust the courts of their traditional jurisdiction to curb arbitrary conduct by the individual employee's statutory representative. 386 U.S. 181-183, 87 S.Ct. 903, 912, 17 L.Ed.2d 852-853 (footnotes omitted). This position was reaffirmed in Amalgamated Assn. of Street Employees v. Lockridge, 1971, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473, wherein the Court noted: “[I]n Yaca v. Sipes . . . we held that an action seeking damages for injury inflicted by a breach of a union’s duty of fair representation was judicially cognizable in any event, that is, even if the conduct complained of was arguably protected or prohibited by the National Labor Relations Act and whether or not the lawsuit was bottomed on a collective agree■ment.” 403 U.S. at 299, 91 S.Ct. at 1924, 29 L.Ed.2d at 490 (emphasis added). This resolution of the pre-emption question is all the more compelled by the treatment of duty of fair representation cases by the N.L.R.B. In Miranda Fuel Co., 1962, 140 N.L.R.B. 181, enforcement denied, 2 Cir. 1963, 326 F.2d 172, a divided Board held that a breach of the duty of fair representation violated Section 8(b) of the Act. The majority held that Section 7 gave employees the right to be free from unfair treatment at the hands of their exclusive bargaining agent and “that Section 8(b)(1)(A) of the Act accordingly prohibits labor organizations, when acting in a statutory representative capacity, from taking action against any employee upon considerations or classifications which are irrelevant, invidious or unfair.” 140 N." }, { "docid": "12464793", "title": "", "text": "PER CURIAM. This action is based upon the refusal of the General Counsel of the National Labor Relations Board to investigate certain charges of unfair labor practices. Averring that he was wrongfully discharged by his employer, plaintiff sought mandatory and declaratory relief to require the General Counsel to investigate. District Judge Fred W. Kaess dismissed the action for lack of jurisdiction over the subject matter for the reasons stated in his order which is made an appendix to this opinion. This panel was appointed by the Chief Judge under Rule 3(5) of the rules of this Court to review the next pending cases on the docket. It is well settled that the National Labor Relations Act precludes District Court review of the manner in which the General Counsel of the Board investigates unfair labor practice charges and determines whether to issue a complaint thereon. Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 17 L.Ed.2d 842; Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638; N.L.R.B. v. Tennessee Products & Chemical Corp., 329 F.2d 873 (6th Cir.); Dunn v. Retail Clerks International Association, AFL-CIO, Local 1529, 307 F.2d 285 (6th Cir.); United Electrical Contractors Assn. v. Ordman, 366 F.2d 776 (2d Cir.), cert. denied, 385 U.S. 1026, 87 S.Ct. 753, 17 L.Ed.2d 674. The District Court clearly was correct in holding that it had no jurisdiction in this action. We therefore find that the appeal is frivolous and entirely without merit. The appeal is dismissed under Rule 18(6) of the rules of this Court, as amended December 12, 1967. APPENDIX Plaintiff brings this action under the Fifth Amendment to the United States Constitution and Sections 1337 (Administrative Procedures Act) and 2201 (Declaratory Judgments Act) of Title 28, U.S.C. The complaint alleges that defendant, as the person possessing final authority on behalf of the National Labor Relations Board, has failed and refused to investigate and inquire into the reasons why plaintiff’s former employer, Earl C. Smith, Inc., had fired plaintiff. It appears from the record that on May 13, 1966 plaintiff filed an unfair labor" }, { "docid": "57880", "title": "", "text": "PER CURIAM. Plaintiff filed an unfair labor charge against his former employer, alleging that he was discharged because he engaged in protected union activities. After investigation, the Regional Director declined to issue a complaint. Plaintiff then appealed to the General Counsel, who also refused to issue a complaint, stating he had determined that plaintiff was a supervisor and therefore not protected by the National Labor Relations Act. 29 U.S.C. § 152(11). Plaintiff’s administrative appeal having failed, he sought mandamus in the district court to compel General Counsel to file a complaint. He now appeals from the dismissal of that action. We affirm. Section 3(d) of the Act gives General Counsel final authority over the investigation and issuance of unfair labor practice complaints. For a quarter of a century this section has been uniformly interpreted to mean that federal courts have no jurisdiction to review the General Counsel’s refusal. Mayer v. Ordman, 6 Cir., 1968, 391 F.2d 889, cert. denied 393 U.S. 925, 89 S.Ct. 257, 21 L.Ed.2d 261; Balanyi v. Local 1031, IBEW, 7 Cir., 1967, 374 F.2d 723; Hourihan v. NLRB, 1952, 91 U.S.App.D.C. 316, 201 F.2d 187, cert. denied 345 U.S. 930, 73 S.Ct. 792, 97 L.Ed. 1359. See Vaca v. Sipes, 1967, 386 U.S. 171, 182, 87 S.Ct. 903, 17 L.Ed.2d 842. Thus, while there is no provision in the Act explicitly prohibiting judicial review of General Counsel’s activities, it must be concluded that judicial abstention has been fully acquiesced in by Congress. Indeed, in view of the imposing authority in favor of non-reviewability, this situation seems paradigmatic of one which is “committed to agency discretion” under section 10 of the Administrative Procedure Act. 5 U.S.C. § 701(a) (2). Appellant has alleged no special circumstances that might take his case out of the general rule. This is not a case where the claim is that the General Counsel has violated express statutory requirements, see Leedom v. Kyne, 1958, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210; cf. McKart v. United States, 1969, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194, but is merely one where" }, { "docid": "18297233", "title": "", "text": "union and the employer. The Supreme Court made this abundantly clear in Vaca v. Sipes: The collective bargaining system as encouraged by Congress and administered by the NLRB of necessity subordinates the interests of an individual employee to the collective interests of all employees in a bargaining unit. See, e.g., J. I. Case Co. v. Labor Board, 321 U.S. 332 [64 S.Ct. 576, 88 L.Ed. 762]. This Court recognized in Steeie that the congressional grant of power to a union to act as exclusive collective bargaining representative, with its corresponding reduction in the individual rights of the employees so represented, would raise grave constitutional problems if unions were free to exercise this power to further racial discrimination. 323 U.S., at 198-99 [65 S.Ct., at 230]. Since that landmark decision, the duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law. Were we to hold, as petitioners and the Government urge, that the courts are foreclosed .. . from this traditional supervisory jurisdiction, the individual employee injured by arbitrary or discriminatory union conduct could no longer be assured of impartial review of his complaint, since the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint. See United Electrical Contractors Assn. v. Ordman, 366 F.2d 776, cert. denied, 385 U.S. 1026 [87 S.Ct. 753, 17 L.Ed.2d 674]. The existence of even a small group of cases in which the Board would be unwilling or unable to remedy a union’s breach of duty would frustrate the basic purposes underlying the duty of fair representation doctrine. Vaca v. Sipes, supra, 386 U.S. at 182-83, 87 S.Ct. at 912-913 (footnote omitted). Just as in the context of private sector labor relations, then, we must provide federal employees with some means of redressing their grievances against their unions and employers since these employees, their interests subordinated to the interests of the group, are subject to unreviewable decisions by the Authority not to prosecute their grievances. For the foregoing reasons, the DLI’s" }, { "docid": "10944956", "title": "", "text": "give her any work, informing her that there was no work available for her and to go home. Thereafter, plaintiff called Thrift-Rack every day for about one week. She reported that she was still on medication and could not drive, but that she was available for any other work. She specifically requested transfer to any position in the warehouse. Thrift-Rack continued to refuse to transfer her to any position in the warehouse. As permitted under section 6, Article XIX of the International Brotherhood of Teamsters Constitution, on December 12, 1982, plaintiff filed a charge of misrepresentation against Hill, by letter addressed to Local 384 Secretary Gordon Grubb, Jr. A hearing was held on that charge on February 24, 1984 (Defendant Union Exhibit “A”, “B”). After all parties appeared and presented evidence, a decision was given, dated May 19, 1983, which dismissed plaintiffs charges (Defendant Union Exhibit “C”). Thereafter, on May 31, 1983, plaintiff appealed the decision of Local 384 Executive Board to Joint Counsel No. 53, for review of that decision (Defendant Exhibit “D”). A hearing was conducted by Joint Council No. 53, and a decision is still pending. DISCUSSION A. Section 301 Claims, Counts I and II. Section 301 of the Labor-Management Relations Act, 29 U.S.C. 185 provides that an individual employee may bring an action charging his employer with breach of the collective bargaining agreement and his union with violating its duty of fair representation in mishandling the resulting grievance. See Vaca v. Sipes, 386 U.S. 171, 186-87, 87 S.Ct. 903, 914-15, 17 L.Ed.2d 842 (1967); Hines v. Anchor Motor Freight, 424 U.S. 554, 567, 96 S.Ct. 1048, 1057, 47 L.Ed.2d 231 (1976). Neither section 301 nor any other section of the LMRA states the statute of limitations applicable to these so-called Vaca-Hines actions. The Supreme Court recently held in Del Costello v. International Broth, of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) that the statute of limitations to be applied to section 301 actions was the six month statute of limitations contained in section 10(b) of the National Labor Relations Act, 29 U.S.C." }, { "docid": "17961828", "title": "", "text": "v. National Grange Mut. Ins. Co., 93 F.3d 31, 34 (1st Cir.1996); and Rodríguez Rodríguez v. Dr. Wallace A. Colberg, 92 J.T.S. 102 (1992). There is, therefore, preclusion as to the claim of overtime under local law because the claim for overtime “could have been raised” in the first complaint (93-6123). The instant case as a second complaint seeking sick leave and overtime under local law is therefore barred against Sea Land Service, Inc. under the doctrine of res judi-cata (claim preclusion) using state or local principles except as to the claim that “the union and the defendant did not bring any attention to his complaint ... both acted superficially and doubted as to plaintiffs rights.” As to this claim the Court agrees with defendant Sea Land Service, Inc.’s contention that this cause of action is in the nature of a hybrid breach of contract duty of fair representation under the cases of Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983); and Hines v. Anchor Motor Freight Inc., 424 U.S. 554, 570-71, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 “a plaintiff must prove both that the employer broke the collective bargaining agreement and that the Union breached its duty of fair representation in order to recover against either the employer or the union.” Chaparro-Febus v. Local 1575, 983 F.2d 325, 330 (1st Cir.1992). Hybrid causes of action under § 301 of the Labor Management Relations Act have the limitations period of six months of Section 10(b) of the Act, 29 U.S.C.S. 160(b). DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Constructive knowledge triggers the time period, Graves v. Smith’s Transfer Corp., 736 F.2d 819, 820 (1st Cir.1984). The pertinent facts are as follows: (1) The local court dismissed the first complaint on April 1, 1993 and notified the same on April 2,1993. (2) On May 21, 1993 Plaintiff Medina" }, { "docid": "14201097", "title": "", "text": "had jurisdiction to grant relief, the district court’s judgment dismissing the complaint is, in all respects, AFFIRMED. . Bova alleged that he had been damaged because he had been deprived of “his rightful, occupational position and job classification, his good reputation in the industry, supplementary monetary benefits, and other job related rights and benefits.” . The local was affiliated with the Pipefitters and Plumbers Union, AFL-CIO. . Bova sued the union’s business agent and ten employees of the company who held supervisory, engineering, and labor relations positions with the company. . The only indication in his complaint about what had happened was an attached letter to Bova from the Regional Director of the NLRB that no unfair labor practice had been committed in connection with Bova’s transfer from the position of welding inspector to pile driving inspector. . He did not make these allegations against the union. . The Regional Director refused to issue a complaint against the union because he found that the union was not involved in the transfer. The director proposed a settlement of the charges against the company, including reinstatement of Bova to his previous position, which the company accepted. Bova, however, declined to accept the settlement, and demanded that further proceedings on his unfair labor practice charge be undertaken. The Regional Director refused, stating that “it does not appear that it would effectuate the purposes of the Act to institute further proceedings at this time.” . We therefore find it unnecessary to decide whether several of the defendants were properly subjected to the personal jurisdiction of the district court. . Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). . E. g., United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218, 228 (1966). . E. g., San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); Peltzman v. Central Gulf Lines, Inc., 497 F.2d 332 (2d Cir. 1974); Marydale Products Co. v. United Packinghouse Workers, 322 F.2d 224 (5th Cir. 1963); Barunica v. United Hatters, Cap and Millinery" }, { "docid": "5506359", "title": "", "text": "conformed to this court’s practice first articulated in Kinney v. International Brotherhood of Electrical Workers, 669 F.2d 1222 (9th Cir.1981). It is important to recognize that this species of liability, although brought under section 301, has a different jurisprudential basis than the more familiar action based on the “statutory duty of fair representation.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967). The duty of fair representation is inferred from unions’ exclusive authority under the NLRA, 29 U.S.C. § 159(a), to represent all employees in a bargaining unit. Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 563, 110 S.Ct. 1339, 1344, 108 L.Ed.2d 519 (1990); Vaca, 386 U.S. at 177, 87 S.Ct. at 910. Whereas the duty of fair representation requires a union to act fairly when dealing with an employer on behalf of a member, a Wooddell claim requires a union to obey its own constitution regardless of the context. Moore made two separate Wooddell claims against the International, arising from the two separate complaints Moore filed with the International against Local 569 officials. 1. The first claim arose from Moore’s allegation that officials of the Local assaulted and harassed him at an April 1984 meeting. Robbins, the International official who investigated Moore’s allegations, found the complaint to be without merit. In essence, Moore alleges that the IBEW breached the duty imposed by its own constitution to investigate charges properly. Although the International denied his claim on September 12, 1984, Moore did not file his complaint in the within action until July 25, 1985. Relying on the authority of Del-Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 172, 103 S.Ct. 2281, 2294, 76 L.Ed.2d 476 (1983), the district court applied the six month limitation period of section 10(b) of the NLRA, 29 U.S.C. § 160(b), to this claim and held that it was time-barred. Moore contends that the district court erred by not applying the state statute of limitations. governing breaches of contract. A ruling on the appropriate statute of limitations is a question of law reviewed de" }, { "docid": "18715515", "title": "", "text": "under Section 10, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law. . Representative Hartley commented during the debates on the Taft-Hartley amendments: Unlike the old Board, [the new Board] will not act as prosecutor, judge and jury. Its sole function will be to decide cases. 1 Legislative History at 297. . Comments of Senator Taft, 2 Legislative History at 1623. . It should be noted that there is legal authority that recognizes certain exceptions to the broad prosecutorial discretion vested in General Counsel by the 1947 Taft Hartley amendments to the Act; however, the exceptions relate to General Counsel’s arbitrary refusal to issue complaints. See, e.g., Associated Builders & Contractors, Inc, v. Irving, 610 F.2d 1221 (4th Cir. 1979), cert. denied, 446 U.S. 965, 100 S.Ct. 2941, 64 L.Ed.2d 823 (1980) (General Counsel’s refusal to issue unfair labor practice complaint not subject to judicial review, unless this act is in excess of delegated powers); NLRB v. International Brotherhood of Electrical Workers, 445 F.2d 1015 (9th Cir.1971) (where decision of General Counsel not to issue complaint is wholly without basis in law, district court may mandate issuance of complaint). See generally 69 A.L.R. Fed. 870 § 4. Since in the case at bar a complaint did issue, this court is not confronted with the question. . The conflicting conclusions articulated in See International Ladies’ Garment Workers Union, 415-475 v. NLRB, 501 F.2d 823 (D.C.Cir.1974); Leeds & Northrup v. NLRB, 357 F.2d 527 (3d Cir.1966) misconstrue the purposes and policy of the Act. In Local 282, International Brotherhood of Teamsters v. NLRB, 339 F.2d 795, 798 (2d Cir.1964), the court stated that \"the only person to whom the National Labor Relations Act expressly grants the right to a hearing in an unfair labor practice is the person charged ...”. The articulated conclusion is inescapable when viewed in light of the pronouncements in Vaca v. Sipes, that prosecutions under the Act are brought to vindicate \"the public interest in effectuating the" }, { "docid": "12464794", "title": "", "text": "& Chemical Corp., 329 F.2d 873 (6th Cir.); Dunn v. Retail Clerks International Association, AFL-CIO, Local 1529, 307 F.2d 285 (6th Cir.); United Electrical Contractors Assn. v. Ordman, 366 F.2d 776 (2d Cir.), cert. denied, 385 U.S. 1026, 87 S.Ct. 753, 17 L.Ed.2d 674. The District Court clearly was correct in holding that it had no jurisdiction in this action. We therefore find that the appeal is frivolous and entirely without merit. The appeal is dismissed under Rule 18(6) of the rules of this Court, as amended December 12, 1967. APPENDIX Plaintiff brings this action under the Fifth Amendment to the United States Constitution and Sections 1337 (Administrative Procedures Act) and 2201 (Declaratory Judgments Act) of Title 28, U.S.C. The complaint alleges that defendant, as the person possessing final authority on behalf of the National Labor Relations Board, has failed and refused to investigate and inquire into the reasons why plaintiff’s former employer, Earl C. Smith, Inc., had fired plaintiff. It appears from the record that on May 13, 1966 plaintiff filed an unfair labor practice charge with the Regional Office of the National Labor Relations Board. The charge alleged that Earl C. Smith, Inc. had violated Section 8(a) (1) and (3) of National Labor Relations Act by refusing to re-hire plaintiff Mayer and by threatening its employees. The Regional Director declined to issue a complaint on the grounds that there was no evidence to support the allegation of threats and that the refusal to re-hire was based on the same reasons as for plaintiff’s discharge in August, 1964, which had been the subject of a prior National Labor Relations Board investigation. In the prior investigation the Regional Director had declined to issue a complaint for the reason that the propriety of the discharge had been heard and approved by an arbitration committee under the provisions of the collective bargaining contract between the company and Truck Drivers Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, the collective bargaining representative of plaintiff, and other employees of Earl C. Smith, Inc. After the Regional Director’s refusal to issue" }, { "docid": "18715510", "title": "", "text": "through informal negotiated settlements without board action or approval and prior to hearing are not in conflict with the intent and purposes underlying the Act. The Supreme Court has stated that “the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint.” Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 913, 17 L.Ed.2d 842 (1967). Moreover, numerous courts of appeals have routinely concluded that such action by the General Counsel is not subject to judicial review. See, e.g., Echols v. NLRB, 525 F.2d 288 (6th Cir.1975); Pacific Southwest Airlines v. NLRB, 611 F.2d 1309, 1311-12 (9th Cir. 1980) and cases cited therein. See generally, 69 A.L.R.Fed. 870 § 3. Jackman, however, argues that the rationale underlying the cited cases do not apply to this controversy. He argues that prior to issuance of the complaint, General Counsel acts in a purely investigatory and prosecutorial posture, but once the complaint has issued, the prosecutorial function is concluded and the proceedings enter the adjudicatory stage. As previously noted, existing precedent, reflects that General Counsel’s refusal to issue a complaint is within his prosecutorial discretion and the courts are without jurisdiction to review that discretionary act. This court’s research has disclosed that neither the congressional history nor existing legal precedent has confined General Counsel’s broad prosecutorial authority announced in Section 3(d) of the Act to the parameters suggested by Jackman’s contention. The authority to initiate and prosecute complaints granted to General Counsel by Section 3(d) “must include the power to determine whether a complaint can be successfully prosecuted and, if he thinks not, to drop it.” Local 282 Teamsters v. NLRB, 339 F.2d 795, 799 (2d Cir.1964). The issuance of a complaint is merely one of several pretrial discretionary nonreviewable evaluations and/or actions undertaken by General Counsel prior to the commencement of the actual hearing before the administrative law judge. Because the Board’s regulations promulgated pursuant to the Act are not in conflict with the expressed intent of Congress and are reasonable, this court concludes that it is without jurisdiction to review the General Counsel’s decision to" }, { "docid": "12203658", "title": "", "text": "facts are shown on remand to exist then Lewis would probably have a good cause of action. Thus, based on the limited record before us, we find that Lewis has alleged a breach of contract claim against the Union that is cognizable under section 301(a). Ordinarily, that would end our discussion of the preemption issue, because under Humphrey the fair representation claims in counts IV and Y could be maintained in the same section 301(a) action. But the Union here also asserts that the district court properly dismissed the fair representation claims. It argues that allegations of discriminatory job referrals do not constitute a claim for breach of the duty of fair representation; and that even if they do, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) exempts from preemption only those fair representation claims that are brought in conjunction with a section 301(a) claim against the employer. Lewis disagrees. Our research and review of the cases cited by both parties again compel us to adopt the position proffered by Lewis. The duty of fair representation was judicially created as a correlative to the union’s statutory right under section 9(a) of the Act to serve as the exclusive representa tive for the members of the collective, bargaining unit. Schneider Moving & Storage Co. v. Robbins, - U.S.-, 104 S.Ct. 1844, 1851 n. 22, 80 L.Ed.2d 366 (1984); International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 46 n. 8, 99 S.Ct. 2121, 2125 n. 8, 60 L.Ed.2d 698 (1979); Freeman v. Local Union No. 135, 746 F.2d 1316 at 1320 (7th Cir.1984); Ranieri v. United Transportation Co., 743 F.2d 598 at 600 (7th Cir.1984). It was created as a “bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.” Vaca, 386 U.S. at 182, 87 S.Ct. at 912. See also DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151 at 165 n. 14, 103 S.Ct. 2281 at 2290 n. 14, 76 L.Ed.2d 476. The Supreme Court has held that under the fair representation" }, { "docid": "6097749", "title": "", "text": "administrative agency created by Congress for that pur-pose_” Vaca v. Sipes, 386 U.S. 171, 180-81, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (1967). The doctrine reflects the congressional intent that matters of national labor policy be decided in the first instance by the NLRB. See Garmon, 359 U.S. at 244-45, 79 S.Ct. at 779-80; see also Longshoremen v. Davis, 476 U.S. at 391, 106 S.Ct. at 1912. This policy is especially important where Congress has granted the NLRB initial authority to decide issues such as representation, bargaining units, see International Brotherhood of Elec. Workers, Local 532 v. Brink Const. Co., 825 F.2d 207, 211 (9th Cir.1987), a party’s status as an “employee” within the meaning of the NLRA, see Iron Workers v. Perko, 373 U.S. 701, 706, 83 S.Ct. 1429, 1431, 10 L.Ed.2d 646 (1963), or union governance of its membership, see Plumbers & Pipefitters v. Plumbers & Pipefitters, 452 U.S. 615, 626, 101 S.Ct. 2546, 2552, 69 L.Ed.2d 280 (1981). See generally American Bar Association, The Developing Labor Law 377-78 (2d ed., 3d supp. 1988) (listing areas of the NLRB’s exclusive and primary jurisdiction). Those issues involve “considerations ... largely of a kind most wisely entrusted initially to the agency charged with the day-to-day administration of the Act as a whole.” Marine Engineers v. Interlake Steamship Co., 370 U.S. 173, 180, 82 S.Ct. 1237, 1241, 8 L.Ed.2d 418 (1962). Nevertheless, the preemption doctrine “has never been rigidly applied to cases where it could not fairly be inferred that Congress intended exclusive jurisdiction to lie with the NLRB.” Vaca, 386 U.S. at 179, 87 S.Ct. at 911. In § 301 of the LMRA, Congress “carved out” an exception to the NLRB’s exclusive jurisdiction, by granting district courts jurisdiction over suits for violations of contracts between an employer and a labor organization representing employees in an industry affecting commerce. Id. The NLRB’s primary jurisdiction does not preempt a court’s jurisdiction over § 301 actions, even if the matter is arguably subject to § 7 or § 8 of the NLRA. In Smith, 371 U.S. at 197, 83 S.Ct. at 268, the" }, { "docid": "14559650", "title": "", "text": "utilized. If the collective bargaining agreement contemplates the use of a grievance procedure to protest a specific employer action, an employee may not sue for breach of contract on the basis of that action without first resorting to the procedure. Republic Steel Corp. v. Maddox, supra; Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Rhine v. Union Carbide Corp., 343 F.2d 12 (6th Cir., 1965); Wimberly v. Clark Controller Co., 364 F.2d 225 (6th Cir., 1966); Kaferle v. Fredrick, 360 F.2d 536 (3rd Cir., 1966); Woody v. Sterling Aluminum Products, Inc., 365 F.2d 448 (8th Cir., 1966), cert. denied, 386 U.S. 957, 87 S.Ct. 1026, 18 L.Ed.2d 105. Federal labor policy favors the use of grievance and arbitration procedures, and contractual provisions should be liberally interpreted so as to require resort to such procedures wherever a contrary result is not clearly indicated. United Steelworkers of America, AFL-CIO v. Warriors & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); International Ass’n of Machinists v. Haynes Corp., 296 F.2d 238 (5th Cir., 1961); General Teamsters, Chauffeurs and Helpers Union v. Blue Cab Co., 353 F.2d 687 (7th Cir. 1965). See also Section 203(d) of the Labor Management Relations Act, 29 U.S.C.A. § 173(d). Discharges have been held to be subject to general grievance provisions similar to those involved here. General Teamsters, Chauffeurs and Helpers Union v. Blue Cab Co., supra; Local No. 824 v. Brunswick Corp., 342 F.2d 792 (6th Cir., 1965); Amalgamated Meat Cutters v. Way, 238 F.Supp. 726 (E.D.Pa., 1965). Under some circumstances failure to resort to the grievance procedure may not bar a § 301(a) suit. Thus the Supreme Court commented in Vaca v. Sipes, supra, “[W]e think the wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, [if] * * * the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.” 386 U.S. 171, 87 S.Ct. at 914, 17 L.Ed.2d" }, { "docid": "15367894", "title": "", "text": "597, 601 (5th Cir.1986); NLRB v. Local 282, International Brotherhood of Teamsters, 740 F.2d 141, 147 (2d Cir.1984); Curtis v. United Transportation Union, 700 F.2d 457, 458 (8th Cir.1983); Warehouse Union, Local 860, International Brotherhood of Teamsters v. NLRB, 652 F.2d 1022, 1025 (D.C.Cir.1981); Foust v. International Brotherhood of Electrical Workers, 572 F.2d 710, 715 (10th Cir.1978), modified, 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979); DeArroyo v. Sindicato de Trabajadores Packinghouse, 425 F.2d 281, 284 (1st Cir.1970), cert. denied, 400 U.S. 877, 91 S.Ct. 121, 27 L.Ed.2d 115 (1970). These appellate decisions appear to be in line with the guidance provided by the Supreme Court in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) when it declared that \"a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fash-ion_” Id. at 191, 87 S.Ct. at 917. Later Supreme Court decisions have utilized the same language in addressing the duty of a union to represent its members fairly. See, e.g., DelCos-tello v. International Brotherhood of Teamsters, 462 U.S. 151, 164, 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476 (1983); Bowen v. United States Postal Service, 459 U.S. 212, 221, 103 S.Ct. 588, 594, 74 L.Ed.2d 402 (1983); International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 47, 99 S.Ct. 2121, 2125, 60 L.Ed.2d 698 (1979); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 568-69, 96 S.Ct. 1048, 1058-59, 47 L.Ed.2d 231 (1976). . We note in conclusion that counsel for Local 710 submitted no less than three letters directing our attention to additional authority within the space of three weeks following oral argument. While citation to additional authority is frequently helpful and certainly permitted under Circuit Rule 28(i), it is nevertheless irksome for the Court to receive weekly updates from the parties. Such addenda are particularly inappropriate when, as in this case, nine of the ten decisions cited were handed down from 1982-1987 and could have been discovered in time to be included in the Union’s brief. The appellate brief is the appropriate vehicle for counsel to make" }, { "docid": "6097748", "title": "", "text": "News Ass’n, 371 U.S. 195, 197, 83 S.Ct. 267, 268, 9 L.Ed.2d 246 (1977). Because this appeal involves a question of law, we exercise plenary review. See Medical Fund—Philadelphia Geriatric Center v. Heckler, 804 F.2d 33, 36 (3d Cir.1986). A. In order to resolve this dispute, we first must examine the interplay between the jurisdiction of the NLRB and of the federal district courts in labor cases. Under the preemption doctrine in labor law, state and federal courts must defer to the primary jurisdiction of the NLRB if a matter is arguably subject to section 7 or section 8 of the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151-169 (1982). Garmon, 359 U.S. at 244, 245, 79 S.Ct. at 779, 780; see also Longshoremen v. Davis, 476 U.S. 380, 381, 389-90, 106 S.Ct. 1904, 1907, 1911-12, 90 L.Ed.2d 389 (1986). A primary reason for the preemption doctrine is “the need to avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the development of such rules to the administrative agency created by Congress for that pur-pose_” Vaca v. Sipes, 386 U.S. 171, 180-81, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (1967). The doctrine reflects the congressional intent that matters of national labor policy be decided in the first instance by the NLRB. See Garmon, 359 U.S. at 244-45, 79 S.Ct. at 779-80; see also Longshoremen v. Davis, 476 U.S. at 391, 106 S.Ct. at 1912. This policy is especially important where Congress has granted the NLRB initial authority to decide issues such as representation, bargaining units, see International Brotherhood of Elec. Workers, Local 532 v. Brink Const. Co., 825 F.2d 207, 211 (9th Cir.1987), a party’s status as an “employee” within the meaning of the NLRA, see Iron Workers v. Perko, 373 U.S. 701, 706, 83 S.Ct. 1429, 1431, 10 L.Ed.2d 646 (1963), or union governance of its membership, see Plumbers & Pipefitters v. Plumbers & Pipefitters, 452 U.S. 615, 626, 101 S.Ct. 2546, 2552, 69 L.Ed.2d 280 (1981). See generally American Bar Association, The Developing Labor Law 377-78 (2d ed., 3d supp." }, { "docid": "8199590", "title": "", "text": "of federal and state courts.’ Smith v. Evening News Ass’n., supra.”' The 8th Circuit thus held that a claim such as the instant one was within the scope of the rule in Garmon. The Supreme Court has more recently held, however, that an aggrieved union member has a claim cognizable in a court of law against his union for breach of its duty fairly to represent him, and that such is not within the preemption doctrine since, as stated by the court in Vaca v. Sipes, 386 U.S. 171, at 180-183, 87 S.Ct. 903, at 912-913, 17 L.Ed.2d 842 (1967): “A primary justification for the pre-emption doctrine — the need to avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the develop ment of such rules to the administrative agency created by Congress for that purpose — is not applicable to cases involving alleged breaches of the union’s duty of fair representation. * * -X- * * * This Court recognized in Steele that the congressional grant of power to a union to act as exclusive collective bargaining representative, with its corresponding reduction in the individual rights of the employees so represented, would raise grave constitutional problems if unions were free to exercise this power to further racial discrimination. 323 U.S., at 198-199, 65 S.Ct., at 230-231, 89 L.Ed.2d 173. Since that landmark decision, the duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law. Were we to hold, as petitioners and the Government urge, that the courts are foreclosed by the NLRB’s Miranda, Fuel decision from this traditional supervisory jurisdiction, the individual employee injured by arbitrary or discriminatory union conduct could not longer be assured of impartial review of his complaint, since the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint. See United Electrical Contractors Assn. v. Ordman, 366 F.2d 776, cert. denied, 385 U.S. 1026, 87 S.Ct. 753, 17 L.Ed.2d 674. The existence of ■even" } ]

[ { "docid": "8726940", "title": "", "text": "fingers on that hand remain weakened). Fingering is defined as “[packing, pinching, or otherwise working primarily with fingers rather than with the whole hand or arm_” Id., Appendix C at C-3. This requirement of frequent fingering is beyond the limitations assigned to Smith in the ALJ’s hypothetical questions. Smith is correct in arguing that when expert testimony conflicts with the DOT, the DOT controls. Campbell v. Bowen, 822 F.2d 1518, 1523 n. 3 (10th Cir.1987); Tom v. Heckler, 779 F.2d 1250, 1255 (7th Cir.1985); Mimms v. Heckler, 750 F.2d 180, 186 (2nd Cir.1984); see also McCoy v. Schweiker, 683 F.2d 1138, 1145-46 (8th Cir.1982) (stating that “in the general run of cases” the DOT is more rehable than a vocational expert). Here, the vocational expert’s testimony in response to the ALJ’s hypothetical questions is at odds with the DOT and SCO with respect to both the hand packaging job and the production assembly job. Once a disability claimant has shown he cannot do his past work, the burden shifts to the Secretary to show that the claimant can perform other work. E.g., Hajek v. Shalala, 30 F.3d 89, 93 (8th Cir.1994). It is undisputed that the burden here has shifted to the Secretary; were this not the case, our result might be different. See Evans v. Shalala, 21 F.3d 832 (8th Cir.1994); Martin v. Sullivan, 901 F.2d 650 (8th Cir.1990). The Secretary has not carried that burden here, and we therefore reverse and remand with directions that the case be remanded to the Secretary for an award of benefits as prayed for in Smith’s application." } ]

[ { "docid": "22079471", "title": "", "text": "Fields v. Bowen, 805 F.2d 1168 (5th Cir.1986) (relying upon the necessarily general nature of DOT job descriptions to hold that the Dictionary of Occupational Titles is not an adequate substitute for vocational expert testimony or other similar evidence on the issue of whether a claimant can perform other gainful employment.) The Eighth Circuit clearly holds that an ALJ may not rely upon the testimony of a vocational expert if the expert’s testimony conflicts with the DOT. See Smith v. Shalala, 46 F.3d 45 (8th Cir.1995) (involving a vocational expert’s testimony that the claimant could perform a particular job which, according to the DOT required the ability to lift between twenty and fifty pounds, notwithstanding the ALJ’s determination that the claimant could not lift more than twenty pounds). The Eighth Circuit reasons that, in the case of such a clear conflict, the DOT job descriptions are generally more reliable than the conflicting testimony of a vocational expert, at least with respect to the skills required to perform a particular job. See Smith, 46 F.3d at 46 (noting the authoritative nature of the DOT and the fact that the experience level and knowledge of vocational experts may vary greatly). The Ninth and Tenth Circuits employ a middle ground position, holding that, when the vocational expert’s testimony is either in conflict with the DOT or creates a conflict in the evidence based upon the DOT, the ALJ may, nonetheless, rely upon the vocational expert’s testimony if the record reflects a substantial reason for deviating from the DOT. See Haddock v. Apfel, 196 F.3d 1084 (10th Cir.1999); Johnson v. Shalala, 60 F.3d 1428 (9th Cir.1995). The Second and Seventh Circuits have issued arguably consistent opinions. See Tom v. Heckler, 779 F.2d 1250 (7th Cir.1985) (remanding for further exploration of an apparent conflict between the ALJ’s finding that claimant was limited to sedentary work and the vocational expert’s testimony that the claimant could perform certain jobs classified at light in the DOT); Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir.1984) (same). Our own Circuit has not addressed when a conflict exists or how" }, { "docid": "22973735", "title": "", "text": "is our only interpretation to date of the ALJ’s obligation under that Ruling. It notes in dicta (because the Ruling was promulgated after the hearing in that case) that SSR 00-4p “requires the ALJ to ‘[e]x-plain [in the] determination or decision how any conflict [with the Dictionary] that has been identified was resolved.’ ” Id. at 279 F.3d at 446. But the Ruling “emphasizes that before relying on [a vocational expert’s] evidence to support a disability determination or decision,” an ALJ must perform the required inquiry. SSR 00-4p (emphasis added). And since Donahue, other circuits have held that the Ruling imposes “an affirmative duty on the part of an ALJ to inquire about conflicts between vocational expert testimony and the DOT.” Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir.2005); see also Hackett v. Barnhart, 395 F.3d 1168, 1174-75 (10th Cir.2005); Burns v. Barnhart, 312 F.3d 113, 127 (3d Cir.2002). In Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir.1999), the Tenth Circuit explained the Ruling’s core requirement: [B]efore an ALJ may rely on expert vocational evidence as substantial evidence to support a determination of nondisability, the ALJ must ask the expert how his or her testimony as to the exertional requirement of identified jobs corresponds with the Dictionary of Occupational Titles, and elicit a reasonable explanation for any discrepancy on this point. See also Hackett, 395 F.3d at 1175 (SSR 00-4p “essentially codifies Haddock”). Prochaska was not required to raise this issue at the hearing, because the Ruling places the burden of making the necessary inquiry on the ALJ. The government concedes that the ALJ failed to comply with SSR 00-4p and ex plicitly waives any argument that Donahue excuses that failure, but contends that the error was harmless because “for a significant number of the jobs that the ALJ cited, there were no inconsistencies between the vocational expert’s testimony and the DOT.” The specific positions identified by the ALJ were cashiering, assembly, packaging and visual inspection. But Prochaska counters that each job, as defined by the DOT, requires specific physical capabilities that are beyond her limitations. She points" }, { "docid": "23252370", "title": "", "text": "ability to read about 200 words per minute). See Dictionary at classifications 382, 358.687-010, 381.687-014, 381.687-018, 382.664-101 (discussing various janitorial classifications), and Appendix C pp. 1010-11 (literacy for all jobs). The vocational expert obviously did not agree — nor did Donahue’s former employer, for he was no more literate during the 23 years he drove a garbage truck than he is today. Illiteracy is not a progressive disease. Courts disagree about the appropriate interaction between the Dictionary and a vocational expert. The eighth circuit held at one point that an alj always must prefer the Dictionary over the view of a vocational expert. See Smith v. Shalala, 46 F.3d 45, 47 (8th Cir.1995). If this is so, then Donahue (and every other illiterate person in the United States) must be deemed “disabled,” even though illiteracy is not a listed impairment leading to an automatic finding of disability under the Commissioner’s regulations. On the other hand, three circuits hold that an alj always may prefer the testimony of a vocational expert over the conclusions in the Dictionary. See Jones v. Apfel, 190 F.3d 1224 (11th Cir.1999); Conn v. Secretary of Health and Human Services, 51 F.3d 607 (6th Cir.1995); Carey v. Apfel, 230 F.3d 131 (5th Cir.2000). Three more circuits allow the alj to accept a vocational expert’s position, but only after providing an explanation (with record support) for doing this; in these circuits a vocational expert’s bare conclusion is not enough. See Haddock v. Apfel, 196 F.3d 1084 (10th Cir.1999); Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir.1995); Mimms v. Heckler, 750 F.2d 180 (2d Cir.1984). We have yet to face the issue squarely, on occasion remanding for a better explanation and on occasion affirming, but never articulating a rule of decision for cases of this kind. Compare Young v. Secretary of Health and Human Services, 957 F.2d 386, 392-93 (7th Cir.1992), and Tom v. Heckler, 779 F.2d 1250, 1255-56 (7th Cir.1985) (both remanding), with Powers v. Apfel, 207 F.3d 431, 436-37 (7th Cir.2000) (permitting a hearing officer to rely on expert testimony that contradicts the Dictionary). The position" }, { "docid": "22079484", "title": "", "text": "level, when the DOT expressly provides that the job requires a different exertional level. See, e.g., Conn v. Secretary of Health & Human Servs., 51 F.3d 607, 610 (6th Cir.1995) (vocational expert testified that particular jobs required only a sedentary exertional level, while the DOT classified those same jobs as light or medium). With this most direct and obvious type of conflict, the ALJ is asked to accept the vocational expert's testimony, even though that testimony is in actual conflict with the provisions of the DOT, which is routinely relied upon by the responsible agency. A second, and different type of conflict may arise when the vocational expert's testimony places the ALJ’s finding with respect to the claimant's residual functional capacity or the claimant's specific impairments in conflict with the exer-tional or skill level or the specific skills required for the identified jobs in the DOT. See, e.g., Haddock v. Apfel, 196 F.3d 1084, 1087-88 (10th Cir.1999) (vocational expert testified that claimant could perform three jobs classified by the DOT as requiring a light or heavy exertional level after the ALJ found that claimant had the residual functional capacity for only sedentary work); Johnson v. Shalala, 60 F.3d 1428 (9th Cir.1995) (vocational expert testified that claimant could perform a job classified by the DOT as light, notwithstanding the ALJ's determination that the claimant retained the residual functional capacity for only sedentary work). The existing precedent encompasses both types of conflict. . In a much more recent, but unpublished decision, the Seventh Circuit explained that the DOT is not controlling and that the ALJ may rely upon the testimony of a vocational expert, even when it is inconsistent with the DOT. See Mont v. Chater, No. 96-2896, 1997 WL 201626 (7th Cir. Apr.17, 1997) (unpublished) (citing Conn v. Secretary of Health & Human Servs., 51 F.3d 607 (6th Cir.1995)). ROBERT M. PARKER, Circuit Judge, concurring in part and dissenting in part. I agree with the majority that when a vocational expert’s testimony is in conflict with the DOT, the ALJ may rely on the vocational expert’s testimony if the record reflects" }, { "docid": "22771072", "title": "", "text": "§ 12.05 requires that the claimant initially manifested deficient intellectual functioning before he turned twenty-two years old. In Williams v. Sullivan, 970 F.2d 1178, 1185 (3d Cir.1992), we placed this burden on the claimant. Burns has not come forward with any proof of this sort. For these two reasons, it was reasonable for the ALJ not to have inquired further. . The courts of appeals for four circuits have held that an ALJ may base his conclusions on a vocational expert's testimony that conflicts with the DOT. See Carey v. Apfel, 230 F.3d 131, 146 (5th Cir.2000) (\"To the extent that there is any implied or indirect conflict between the vocational expert’s testimony and the DOT in this case, ... the ALJ may rely upon the vocational expert’s testimony provided that the record reflects an adequate basis for doing so.”); Jones v. Apfel, 190 F.3d 1224, 1229-1230 (11th Cir.1999), cert. denied, 529 U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000) (\"We agree with the Sixth Circuit that when the VE’s testimony conflicts with the DOT, the VE's testimony ‘trumps’ the DOT.”); Conn v. Secretary of Health & Human Servs., 51 F.3d 607, 610 (6th Cir.1995) (“[T]he ALJ was within his rights to rely solely on the vocational expert's testimony.”); Johnson v. Shalala, 60 F.3d 1428, 1435 (5th Cir.1995) (“[A]lthough the DOT raises a presumption as to the job classification, it is rebuttable. We make explicit here that an ALJ may rely on expert testimony which contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation.”). The Court of Appeals for the Eighth Circuit, however, has held that an ALJ always must prefer the DOT over the testimony of a vocational expert, see Smith v. Shalala, 46 F.3d 45, 47 (8th Cir.1995) (\"[Wjhen expert testimony conflicts with the DOT, the DOT controls.”), although the court seems to have quickly retreated from that bright-line rule. See Montgomery v. Chater, 69 F.3d 273, (8th Cir.1995) (\"The DOT classifications may be rebutted, however, with VE testimony which shows that 'particular jobs, whether classified as light or sedentary," }, { "docid": "22261665", "title": "", "text": "record even when the claimant is represented by an attorney, as in this case. See Thompson, 987 F.2d at 1492. Questioning a vocational expert about the source of his opinion and any deviations from a publication recognized as authoritative by the agency’s own regulations falls within this duty. Our holding as much at step five is consistent with the requirement at steps three and four that an ALJ establish the predicate facts for his conclusions. See Winfrey, 92 F.3d at 1024 (step four case); Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir.1996) (step three case). Finally, we note that our decision on this issue is consistent with the majority of circuits to have considered it. See Porch v. Chater, 115 F.3d 567, 571-72 (8th Cir.1997); Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir.1995); English v. Shalala, 10 F.3d 1080, 1085 (4th Cir.1993); Tom v. Heckler, 779 F.2d 1250, 1255-56 (7th Cir.1985); Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir.1984). The Eleventh Circuit has held that a vocational expert’s testimony “trumps” the Dictionary of Occupational Titles in the event of a conflict, but it did so in the context of a claim in which there was no conflict. Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir.1999). Only the Sixth Circuit has held that an ALJ may unreservedly accept a VE’s testimony at step five even if it contradicts the Dictionary of Occupational Titles. See Conn v. Secretary of Health & Human Servs., 51 F.3d 607, 610 (6th Cir.1995). We are unpersuaded that the Sixth Circuit’s approach is consistent with the broader principles that govern these nonadversarial proceedings. We do not mean by our holding that the Dictionary of Occupational Titles “trumps” a VE’s testimony when there is a conflict about the nature of a job. We hold merely that the ALJ must investigate and elicit a reasonable explanation for any conflict between the Dictionary and expert testimony before the ALJ may rely on the expert’s testimony as substantial evidence to support a determination of nondisability. One reasonable explanation would be that the job the VE is testifying" }, { "docid": "22079485", "title": "", "text": "heavy exertional level after the ALJ found that claimant had the residual functional capacity for only sedentary work); Johnson v. Shalala, 60 F.3d 1428 (9th Cir.1995) (vocational expert testified that claimant could perform a job classified by the DOT as light, notwithstanding the ALJ's determination that the claimant retained the residual functional capacity for only sedentary work). The existing precedent encompasses both types of conflict. . In a much more recent, but unpublished decision, the Seventh Circuit explained that the DOT is not controlling and that the ALJ may rely upon the testimony of a vocational expert, even when it is inconsistent with the DOT. See Mont v. Chater, No. 96-2896, 1997 WL 201626 (7th Cir. Apr.17, 1997) (unpublished) (citing Conn v. Secretary of Health & Human Servs., 51 F.3d 607 (6th Cir.1995)). ROBERT M. PARKER, Circuit Judge, concurring in part and dissenting in part. I agree with the majority that when a vocational expert’s testimony is in conflict with the DOT, the ALJ may rely on the vocational expert’s testimony if the record reflects a substantial reason for doing so. See Haddock v. Apfel, 196 F.3d 1084 (10th Cir.1999). Although the DOT is due deference, it does not and cannot cover every possible permutation of human impairment. A vocational expert’s testimony that, in-a particular case, a claimant can or cannot perform a specific job or class of jobs must be taken into consideration by the ALJ. I therefore agree that we should decline to reverse the Commissioner’s determination on the basis of the conflict between the vocational expert’s testimony and the DOT. However, I find merit in Carey’s claim that the ALJ’s decision was not supported by substantial evidence. The medical expert gave an inaccurate summary of Carey’s medical records, the vocational expert’s testimony relied, in part, on that inaccurate summary and the ALJ specifically found that the medical expert, gave credible testimony. The ALJ was clearly in error when he relied on Medical Vocational Guideline 202.21, a fact that the majority acknowledges. Based on these errors, I would reverse this case and remand it for a determination of" }, { "docid": "22771074", "title": "", "text": "may be ones that a claimant can perform.’ ” (citation omitted)). Other courts of appeals have adopted a middle view. These courts require an ALJ to explain any decision to prefer the testimony of a vocational expert over the DOT. See Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir.1999) (\"[T]he ALJ must investigate and elicit a reasonable explanation for any conflict between the Dictionary and expert testimony before the ALJ may rely on the expert’s testimony as substantial evidence to support a determination of nondisability.”); see also Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir.1984) (\"Although both the ALJ in his opinion, and the vocational expert in her testimony at the hearings, concluded that the claimant’s vocational capacity was for sedentary, semi-skilled positions, the jobs selected by the expert and relied upon by the ALJ, as being appropriate, require the capacity to perform light work. Consequently, we must conclude that the Secretary failed to demonstrate the existence of substantial gainful employment of a sedentary nature, which the claimant was capable of performing.”). See generally Donahue v. Barnhart, 279 F.3d 441, 445 (7th Cir.2002). . Burns, however, is certainly free on remand to examine the vocational expert based on the aptitude level required for a job as detailed in other occupational handbooks. . We emphasize that this relates only to exer-tional aspects of Burns’ residual functional capacity. . The Social Security Administration has more fully defined the physical exertion requirements of \"light work” in 20 C.F.R. § 416.967(b): Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the tíme with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we" }, { "docid": "22973734", "title": "", "text": "is consistent with the Dictionary of Occupational Titles. The Ruling’s language unambiguously sets out the ALJ’s affirmative duty: When a VE or VS provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that VE or VS evidence and information provided in the DOT. In these situations, the adjudicator will: Ask the VE or VS if the evidence he or she has provided conflicts with information provided in the DOT; and If the VE’s or VS’s evidence appears to conflict with the DOT, the adjudicator will obtain a reasonable explanation for the apparent conflict. SSR 00-4p (emphasis added). The ALJ here took testimony from an expert as to whether certain job requirements were compatible with Prochaska’s various limitations, but did not ask whether the expert’s analysis conflicted with the DOT. Relying on Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir.2002), the magistrate judge here decided that Prochaska forfeited her SSR 00-4p argument by failing to raise it at the hearing. Donahue is our only interpretation to date of the ALJ’s obligation under that Ruling. It notes in dicta (because the Ruling was promulgated after the hearing in that case) that SSR 00-4p “requires the ALJ to ‘[e]x-plain [in the] determination or decision how any conflict [with the Dictionary] that has been identified was resolved.’ ” Id. at 279 F.3d at 446. But the Ruling “emphasizes that before relying on [a vocational expert’s] evidence to support a disability determination or decision,” an ALJ must perform the required inquiry. SSR 00-4p (emphasis added). And since Donahue, other circuits have held that the Ruling imposes “an affirmative duty on the part of an ALJ to inquire about conflicts between vocational expert testimony and the DOT.” Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir.2005); see also Hackett v. Barnhart, 395 F.3d 1168, 1174-75 (10th Cir.2005); Burns v. Barnhart, 312 F.3d 113, 127 (3d Cir.2002). In Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir.1999), the Tenth Circuit explained the Ruling’s core requirement: [B]efore an ALJ may rely on expert" }, { "docid": "23252371", "title": "", "text": "Dictionary. See Jones v. Apfel, 190 F.3d 1224 (11th Cir.1999); Conn v. Secretary of Health and Human Services, 51 F.3d 607 (6th Cir.1995); Carey v. Apfel, 230 F.3d 131 (5th Cir.2000). Three more circuits allow the alj to accept a vocational expert’s position, but only after providing an explanation (with record support) for doing this; in these circuits a vocational expert’s bare conclusion is not enough. See Haddock v. Apfel, 196 F.3d 1084 (10th Cir.1999); Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir.1995); Mimms v. Heckler, 750 F.2d 180 (2d Cir.1984). We have yet to face the issue squarely, on occasion remanding for a better explanation and on occasion affirming, but never articulating a rule of decision for cases of this kind. Compare Young v. Secretary of Health and Human Services, 957 F.2d 386, 392-93 (7th Cir.1992), and Tom v. Heckler, 779 F.2d 1250, 1255-56 (7th Cir.1985) (both remanding), with Powers v. Apfel, 207 F.3d 431, 436-37 (7th Cir.2000) (permitting a hearing officer to rely on expert testimony that contradicts the Dictionary). The position articulated in Smith that the Dictionary always wins is untenable. Smith itself gave no reason for a flat rule, and the eighth circuit sensibly has retreated in more recent cases. See Young v. Apfel, 221 F.3d 1065 (8th Cir.2000); Jones v. Chater, 72 F.3d 81 (8th Cir.1995); Montgomery v. Chater, 69 F.3d 273 (8th Cir.1995). Smith would make the Dictionary of Occupational Titles an independent source of listed impairments, giving the Dictionary’s team of authors a power that Congress has bestowed on the Commissioner of Social Security. The editorial board of the Dictionary has not been nominated by the President or confirmed by the Senate. The Dictionary is published by the Department of Labor as a tool; it does not purport to contain rules of law, and no statute or regulation gives it binding force. The Commissioner of Social Security is entitled to examine independently those questions covered by the Dictionary — something that the Dictionary itself proclaims when observing that users should rely on better data if they have any in their own possession." }, { "docid": "17204698", "title": "", "text": "are considered, even when the claimant is represented by counsel.”); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000) (similar statement); Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir.2000) (similar statement). . See Carey v. Apfel, 230 F.3d 131, 146 (5th Cir.2000); Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir.1999); Connecticut v. Sec'y of Health & Human Servs., 51 F.3d 607, 610 (6th Cir.1995). The Fifth Circuit requires that \"the record reflect!] an adequate basis” for preferring the VE’s testimony to the DOT. Carey, 230 F.3d at 146. . See Smith v. Shalala, 46 F.3d 45, 47 (8th Cir.1995). Bums noted, however, that the Eighth Circuit \"seems to have quickly retreated from that bright-line rule.” Burns, 312 F.3d at 127 n. 8 (citing Montgomery v. Chater, 69 F.3d 273 (8th Cir.1995)). . See Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir.1999); Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir.1984). We further noted that Social Security Ruling SSR 00-4p \"squarely addresses how this situation should be handled.” Burns, 312 F.3d at 127. The Ruling adopts the middle ground and further puts the burden on the ALJ to uncover the existence of any conflicts between the VE’s testimony and the DOT: Social Security Ruling 00-4p requires that the ALJ ask the vocational expert whether any possible conflict exists between the vocational expert's testimony and the DOT, and that, if the testimony does appear to conflict with the DOT, to 'elicit a reasonable explanation for the apparent conflict.' The Ruling requires that the explanation be made on the record and that the ALJ explain in his decision how the conflict was resolved. Id. SSR 00-4p sets requirements for an ALJ to follow in any case decided after its enactment. Here, as already noted, the hearing occurred and the ALJ rendered his decision before the enactment of SSR 00-4p. . Although we so stated, we nonetheless seemed to adopt the middle course: \"Burns argues that the vocational expert's testimony that he could work as a laundry sorter, packer, or ticket taker, adopted by the ALJ for his findings of fact," }, { "docid": "22771073", "title": "", "text": "DOT, the VE's testimony ‘trumps’ the DOT.”); Conn v. Secretary of Health & Human Servs., 51 F.3d 607, 610 (6th Cir.1995) (“[T]he ALJ was within his rights to rely solely on the vocational expert's testimony.”); Johnson v. Shalala, 60 F.3d 1428, 1435 (5th Cir.1995) (“[A]lthough the DOT raises a presumption as to the job classification, it is rebuttable. We make explicit here that an ALJ may rely on expert testimony which contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation.”). The Court of Appeals for the Eighth Circuit, however, has held that an ALJ always must prefer the DOT over the testimony of a vocational expert, see Smith v. Shalala, 46 F.3d 45, 47 (8th Cir.1995) (\"[Wjhen expert testimony conflicts with the DOT, the DOT controls.”), although the court seems to have quickly retreated from that bright-line rule. See Montgomery v. Chater, 69 F.3d 273, (8th Cir.1995) (\"The DOT classifications may be rebutted, however, with VE testimony which shows that 'particular jobs, whether classified as light or sedentary, may be ones that a claimant can perform.’ ” (citation omitted)). Other courts of appeals have adopted a middle view. These courts require an ALJ to explain any decision to prefer the testimony of a vocational expert over the DOT. See Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir.1999) (\"[T]he ALJ must investigate and elicit a reasonable explanation for any conflict between the Dictionary and expert testimony before the ALJ may rely on the expert’s testimony as substantial evidence to support a determination of nondisability.”); see also Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir.1984) (\"Although both the ALJ in his opinion, and the vocational expert in her testimony at the hearings, concluded that the claimant’s vocational capacity was for sedentary, semi-skilled positions, the jobs selected by the expert and relied upon by the ALJ, as being appropriate, require the capacity to perform light work. Consequently, we must conclude that the Secretary failed to demonstrate the existence of substantial gainful employment of a sedentary nature, which the claimant was capable of performing.”). See" }, { "docid": "22474221", "title": "", "text": "adopting the expert’s testimony over the Dictionary’s definition. We find that there was no actual conflict for the purposes of this legal question. Other circuits have found that the expert and the Dictionary conflict where they disagreed in categorizing or describing the requirements of a job as it is performed in the national economy. See, e.g., Donahue v. Barnhart, 279 F.3d 441, 445 (7th Cir.2002); Carey v. Apfel, 230 F.3d 131, 145-46 (5th Cir.2000); Haddock v. Apfel, 196 F.3d 1084, 1087, 1091 (10th Cir.1999); Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir.1999); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995); Conn v. Sec’y of Health and Human Servs., 51 F.3d 607, 610 (6th Cir.1995); Smith v. Shalala, 46 F.3d 45, 47 (8th Cir.1995). However, we know of no circuits that have found a “conflict” in a discrepancy between, on the one hand, the expert’s description of the job that the claimant actually performed, and the Dictionary’s description of the job as it is performed in the national economy. We have held that in the fourth stage of the SSI inquiry, the claimant has the burden to show an inability to return to her previous specific job and an inability to perform her past relevant work generally. See Jock v. Harris, 651 F.2d 133, 135 (2d Cir.1981); see also SSR 82-62, 1982 WL 31386, at *3 (Past relevant work in the fourth stage of the inquiry includes “the specific job a claimant performed or the same kind of work as it is customarily performed throughout the economy.”). This inquiry requires separate evaluations of the previous specific job and the job as it is generally performed. Whereas the Dictionary describes jobs as they are generally performed, an expert is often called upon to explain the requirements of particular jobs, and as such, his deviations from the Dictionary in such testimony do not actually “conflict” with the Dictionary. Many specific jobs differ from those jobs as they are generally performed, and the expert may identify those unique aspects without contradicting the Dictionary. In this case, the expert testified about Jasinski’s past" }, { "docid": "22079469", "title": "", "text": "the record evidence is ample to support the ALJ’s credibility determinations and other findings with respect to Carey’s impairments and his residual functional capacity, without regard to the objectionable portions of the medical expert’s testimony. For these reasons, we conclude that Carey was not prejudiced by any inconsistency between the medical expert’s testimony and the medical records submitted to the ALJ. See Brock v. Chafer, 84 F.3d 726, 729 (5th Cir.1996) (“We will not reverse the decision of an ALJ for lack of substantial evidence where the claimant makes no showing that he was prejudiced in any way by the deficiencies he alleges.”). XI. Carey also argues that the ALJ’s decision was not supported by substantial evidence because the vocational expert’s testimony that Carey could perform certain identified jobs with only one arm is in conflict with the description given those jobs in the Department of Labor’s Dictionary of Occupational Titles (DOT). There is a circuit conflict on the issue of whether an ALJ may rely upon the testi mony of a vocational expert when that expert’s testimony is either in conflict with or creates a conflict in the evidence in light of DOT provisions. The Sixth and Eleventh Circuits hold that a vocational expert’s testimony is substantial evidence that the ALJ may rely upon, even when that testimony is in conflict with DOT provisions. See Jones v. Apfel, 190 F.3d 1224 (11th Cir.1999), cert, denied, - U.S. -, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000); Conn v. Secretary of Health & Human Servs., 51 F.3d 607 (6th Cir.1995). The Fourth Circuit has reached the same result in an unpublished case. See Sawyer v. Apfel, No. 98-1520, 1998 WL 830653 (4th Cir. Dec.2, 1998). These courts reason that social security regulations do not require the ALJ or the vocational expert to rely upon the classifications in the DOT, or that the categorical DOT job descriptions are neither comprehensive nor exclusively probative of a claimant’s ability to perfonn a particular job. See, e.g., Jones, 190 F.3d at 1229-30; Conn, 51 F.3d at 610; Sawyer, 1998 WL 830653, at *1; see also" }, { "docid": "22474222", "title": "", "text": "the fourth stage of the SSI inquiry, the claimant has the burden to show an inability to return to her previous specific job and an inability to perform her past relevant work generally. See Jock v. Harris, 651 F.2d 133, 135 (2d Cir.1981); see also SSR 82-62, 1982 WL 31386, at *3 (Past relevant work in the fourth stage of the inquiry includes “the specific job a claimant performed or the same kind of work as it is customarily performed throughout the economy.”). This inquiry requires separate evaluations of the previous specific job and the job as it is generally performed. Whereas the Dictionary describes jobs as they are generally performed, an expert is often called upon to explain the requirements of particular jobs, and as such, his deviations from the Dictionary in such testimony do not actually “conflict” with the Dictionary. Many specific jobs differ from those jobs as they are generally performed, and the expert may identify those unique aspects without contradicting the Dictionary. In this case, the expert testified about Jasinski’s past work as a teacher’s aide at Sacred Heart Catholic School. The ALJ asked specifically about that job, and the expert responded: “Teacher’s aide is DOT number 249.367-074, and that’s light exertion, semi-skilled employment, and she described it being between sedentary to light. She indicated she may need to pick up a child, but that was on occasion. So I would ... put it in between the sedentary and light exertion [categories].” The ALJ later asked whether Jasinski was able “to do any of her past relevant work,” and the expert replied that “the teacher’s aide work would ... be allowed, with the exception that she would not be able to pick up a child. But that sounded like it was based on her discretion, and it’s not generally something that she was required to do.” Again, the expert answered on the basis of Jasinski’s description of her work as a Sacred Heart Catholic teacher’s aide, and not on the basis of the job’s requirements as it is performed nationally. Therefore, we find that the expert’s" }, { "docid": "22288983", "title": "", "text": "then stating that she could perform several light nursing jobs. The VE acknowledged that several of the jobs he recommended are classified in the Dictionary of Occupational Titles (DOT) as light jobs. However, he indicated that some of these positions as they exist in the national economy and locally could be performed at a sedentary level depending on the equipment and office setup. Although the DOT generally controls, “[t]he DOT classifications may be rebutted ... with VE testimony which shows that ‘particular jobs, whether classified as fight or sedentary, may be ones that a claimant can perform.’ ” Montgomery v. Chater, 69 F.3d 273, 276 (8th Cir.1996) (quoting Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir.1995)). We find that the vocational expert adequately rebutted the DOT classifications in this case, and we note that the DOT itself states that it is not comprehensive and that individuals “demanding specific job requirements should supplement this data with local information detailing jobs within their community.” DOT at xiii (quoted in Johnson, 60 F.3d at 1435); see Carlson v. Chater, 74 F.3d 869, 871 (8th Cir.1996) (DOT definitions of particular jobs represent only the “ ‘approximate maximum requirements for each position, rather than [the] range’”) (quoting Jones v. Chater, 72 F.3d 81, 82 (8th Cir.1995)); cf. Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir.1999) (noting various approaches among the circuits to divergences between DOT classifications and VE testimony). In any event, even if the vocational expert did not successfully rebut the DOT definitions, the ALJ identified three unskilled sedentary jobs — order clerk, surveillance monitor, and telephone surveyor — Young could undisputedly perform. The judgment is affirmed. . The Honorable Charles R. Wolle, Chief Judge, United States District Court for the Southern District of Iowa. . Multiple sclerosis is an autoimmune disorder in which the insulating sheath surrounding nerve fibers is destroyed and replaced by scar tissue, causing nerve communication to be disrupted. Symptoms, which vary widely from person to person and from stage to stage of the disease, include muscle weakness, numbness, fatigue, loss of balance, pain, and loss of bowel" }, { "docid": "22079470", "title": "", "text": "that expert’s testimony is either in conflict with or creates a conflict in the evidence in light of DOT provisions. The Sixth and Eleventh Circuits hold that a vocational expert’s testimony is substantial evidence that the ALJ may rely upon, even when that testimony is in conflict with DOT provisions. See Jones v. Apfel, 190 F.3d 1224 (11th Cir.1999), cert, denied, - U.S. -, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000); Conn v. Secretary of Health & Human Servs., 51 F.3d 607 (6th Cir.1995). The Fourth Circuit has reached the same result in an unpublished case. See Sawyer v. Apfel, No. 98-1520, 1998 WL 830653 (4th Cir. Dec.2, 1998). These courts reason that social security regulations do not require the ALJ or the vocational expert to rely upon the classifications in the DOT, or that the categorical DOT job descriptions are neither comprehensive nor exclusively probative of a claimant’s ability to perfonn a particular job. See, e.g., Jones, 190 F.3d at 1229-30; Conn, 51 F.3d at 610; Sawyer, 1998 WL 830653, at *1; see also Fields v. Bowen, 805 F.2d 1168 (5th Cir.1986) (relying upon the necessarily general nature of DOT job descriptions to hold that the Dictionary of Occupational Titles is not an adequate substitute for vocational expert testimony or other similar evidence on the issue of whether a claimant can perform other gainful employment.) The Eighth Circuit clearly holds that an ALJ may not rely upon the testimony of a vocational expert if the expert’s testimony conflicts with the DOT. See Smith v. Shalala, 46 F.3d 45 (8th Cir.1995) (involving a vocational expert’s testimony that the claimant could perform a particular job which, according to the DOT required the ability to lift between twenty and fifty pounds, notwithstanding the ALJ’s determination that the claimant could not lift more than twenty pounds). The Eighth Circuit reasons that, in the case of such a clear conflict, the DOT job descriptions are generally more reliable than the conflicting testimony of a vocational expert, at least with respect to the skills required to perform a particular job. See Smith, 46 F.3d at" }, { "docid": "17204697", "title": "", "text": "fitting or dressing rooms or to cashier. Keeps merchandise in order. Marks or tickets merchandise. Inventories stock.” DOT § 299.677-010. ' . On cross-examination before the ALJ, Boone's attorney asked the VE if she had \"the DOT numbers” for the jobs she identified, to which she replied: \"No, but I’d be glad to get them for you, that’s not a problem.” Boone's counsel did not follow up on the issue, and the Commissioner therefore asserts that we should ignore the conflict and lack of reconciling explanation. Boone's question to the VE, however, sufficiently raised the issue before the ALJ for purposes of our review. Moreover, the ALJ had a duty to follow up on Boone's inquiry to ensure a complete record. See Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir.1995) (ALJ has a \"duty to develop a full and fair record”); Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir.2001) (\"In Social Security cases, the ALJ has a special duty to develop the record fully and fairly and to ensure that the claimant’s interests are considered, even when the claimant is represented by counsel.”); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000) (similar statement); Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir.2000) (similar statement). . See Carey v. Apfel, 230 F.3d 131, 146 (5th Cir.2000); Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir.1999); Connecticut v. Sec'y of Health & Human Servs., 51 F.3d 607, 610 (6th Cir.1995). The Fifth Circuit requires that \"the record reflect!] an adequate basis” for preferring the VE’s testimony to the DOT. Carey, 230 F.3d at 146. . See Smith v. Shalala, 46 F.3d 45, 47 (8th Cir.1995). Bums noted, however, that the Eighth Circuit \"seems to have quickly retreated from that bright-line rule.” Burns, 312 F.3d at 127 n. 8 (citing Montgomery v. Chater, 69 F.3d 273 (8th Cir.1995)). . See Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir.1999); Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir.1984). We further noted that Social Security Ruling SSR 00-4p \"squarely addresses how this situation should be handled.” Burns, 312 F.3d at 127." }, { "docid": "22261666", "title": "", "text": "of Occupational Titles in the event of a conflict, but it did so in the context of a claim in which there was no conflict. Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir.1999). Only the Sixth Circuit has held that an ALJ may unreservedly accept a VE’s testimony at step five even if it contradicts the Dictionary of Occupational Titles. See Conn v. Secretary of Health & Human Servs., 51 F.3d 607, 610 (6th Cir.1995). We are unpersuaded that the Sixth Circuit’s approach is consistent with the broader principles that govern these nonadversarial proceedings. We do not mean by our holding that the Dictionary of Occupational Titles “trumps” a VE’s testimony when there is a conflict about the nature of a job. We hold merely that the ALJ must investigate and elicit a reasonable explanation for any conflict between the Dictionary and expert testimony before the ALJ may rely on the expert’s testimony as substantial evidence to support a determination of nondisability. One reasonable explanation would be that the job the VE is testifying about is not included in the Dictionary, but is documented in some other acceptable source. See Johnson, 60 F.3d at 1435 (noting Dictionary states that it is not comprehensive); Wright v. Sullivan, 900 F.2d 675, 683-84 (3d Cir.1990) (same). Another valid explanation would be that a specified number or percentage of a particular job is performed at a lower RFC level than the Dictionary shows the job generally to require. See, e.g., Fenton v. Apfel, 149 F.3d 907, 911 (8th Cir.1998) (explaining that Dictionary gives maximum requirements of job as generally performed, not range of requirements as job is performed in various particular settings); Barker v. Shalala, 40 F.3d 789, 795 (6th Cir.1994) (same). In this case, the ALJ found that Mr. Haddock was limited to sedentary, semiskilled work that would allow him to alternate sitting and standing. The case must be remanded for the ALJ to investigate whether there is a significant number of specific jobs Mr. Haddock could have done with his limitations. The judgment of the United States District Court for the" }, { "docid": "22474220", "title": "", "text": "novo. Williams v. Apfel, 204 F.3d 48, 49 (2d Cir.1999). When reviewing a disability benefits determination, “our focus is not so much on the district court’s ruling as it is on the administrative ruling.” Id. (internal quotation marks and citations omitted). We may reverse the administrative determination only if it is not supported by substantial evidence, based upon the entire administrative record. Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999) (per curiam). Substantial evidence is “more than a mere scintilla,” and is “such relevant evidence as reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (internal citations and quotation marks omitted). Jasinski argues that the testimony of Timothy Janikowski, the vocational expert, in categorizing the teacher’s aide position as “between sedentary and light” exertion, conflicted with the Dictionary, which categorizes it as “light” exertion. Accordingly, she contends that the ALJ should have inquired into the conflict and should have either deferred to the Dictionary or explained why she was adopting the expert’s testimony over the Dictionary’s definition. We find that there was no actual conflict for the purposes of this legal question. Other circuits have found that the expert and the Dictionary conflict where they disagreed in categorizing or describing the requirements of a job as it is performed in the national economy. See, e.g., Donahue v. Barnhart, 279 F.3d 441, 445 (7th Cir.2002); Carey v. Apfel, 230 F.3d 131, 145-46 (5th Cir.2000); Haddock v. Apfel, 196 F.3d 1084, 1087, 1091 (10th Cir.1999); Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir.1999); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995); Conn v. Sec’y of Health and Human Servs., 51 F.3d 607, 610 (6th Cir.1995); Smith v. Shalala, 46 F.3d 45, 47 (8th Cir.1995). However, we know of no circuits that have found a “conflict” in a discrepancy between, on the one hand, the expert’s description of the job that the claimant actually performed, and the Dictionary’s description of the job as it is performed in the national economy. We have held that in" } ]

[ { "docid": "21480026", "title": "", "text": "PER CURIAM: David Tom appeals from an order of the District Court for the Southern District of New York which denied his motion under 28 U.S.C. § 2255 to vacate his conviction and sentence to twelve years’ imprisonment for violation of the federal narcotics laws. His motion was based on the claim that, due to the influence of narcotics, he had been unable to understand the nature of the charges against him or to assist in his own defense during the three-day trial. Judge Edelstein found that he had possessed “sufficient mental competency to consult with his lawyer with a reasonable degree of rational understanding and was able to assist in his own defense.” It appears not to be disputed that Tom was taking narcotics at the time of the trial. But the record does not show, and we have no reason to believe, that the use of narcotics per se renders a defendant incompetent to stand trial. Whether it had such an effect in this case was an issue of fact, as to which the petitioner had the burden of proof. Johnston v. United States, 292 F.2d 51 (10 Cir.), cert. denied, 368 U.S. 906, 82 S.Ct. 186, 7 L.Ed.2d 100 (1961). There is adequate evidentiarysupport for Judge Edelstein’s conclusion that the petitioner did not sustain the burden of proving his incompetency. Norman Lau Kee, Esq., who represented Tom at the trial and had known him for a number of yeárs, noticed “nothing unusual” in his appearance or demeanor at trial, and he testified that Tom “appeared to respond to my questions without too much difficulty.” These observations were supported by the testimony of Mr. Rosner, who had represented the government, and Leslie Hall, a medical technician who had talked with Tom at the close of the trial. In addition, Tom conceded that he had worked evenings as a dealer in a card game during the course of the trial, and his statements at the time of sentencing do not indicate that he was then incompetent. Affirmed." } ]

[ { "docid": "23541680", "title": "", "text": "defendant Marzano about narcotics? A. I do not remember. “Q. You do not remember? A. I do not know nothing about him. “Q. What is it you remember? A. I never did talk to him. “Q. Never talked to him? A. No. “Q. Did you ever discuss narcotics with him ? A. I never did. “Q. Drugs? A. No, sir. “Q. Are you telling the truth? A. I am. “Q. You know I am going to sentence you, don’t you? A. Yes. “Q. I ask you again, did you have any talk with him about any narcotics? Tell me the truth. A. No, sir.” “The Court: Do you solemnly swear that the testimony you shall give in this case shall be the truth— “The Witness: Your Honor— “The Court: Stop — (he whole truth and nothing but the truth, so help you God? “The Witness: Yes. “Q. What is your full name? A. William Sperduto. “Q. You are a defendant in this case? A. Yes, sir. “Q. You pleaded guilty to two indictments? A. Yes, sir. “Q. Do you know the defendant Marzano? A. Yes, sir, we are neighbors. “Q. How long have you known him? A. For about fifteen years. “Q. Did you have any talk with him about drugs or narcotics? A. No, sir. “The Court: All right, you may cross-examine. “By Mr. Hollinger: Q. When was the last time you talked to Marzano? A. I talked to him every other day or so. “Q. Did you see him in West Street, there in the detention headquarters? A. Yes, sir. “Q. Did you see him last night? A. Yes. “Q. Did you see him this morning? A. Yes. “Q. Did you talk to him about drugs? A. No, sir. “Q. Did you talk to him about this case? A. No. “Q. What did you talk about? A. The usual things; ‘How did you make out.’ That is all. “Q. That is all you talked about? A. That is all. “Mr. Hollinger: That is all. “Mr. Solomon: That is all. 0 “The Court: Just a moment. Just come back" }, { "docid": "13933361", "title": "", "text": "declined such assistance and, acting for themselves, entered a plea of guilty; (2) that Motley requested the assistance of counsel, and a Mr. Bowling was appointed to represent him and did confer with him; (3) that, asked by the court if he had anything to say, Sylvester Goodwin stated, “Well, Sir, Your Honor, I hope the court will have mercy on my brother and K. T. Motley. So far as myself, I don’t ask that. Both of them are hard working boys and they were led into that by me”; (4) that Mr. Bowling, the court appointed counsel for Motley then being asked, “Are you ready to proceed?”, stated, “I would like to have a short conference with Mr. Hauberg,” whereupon Mr. Hauberg and Mr. Bowling went into conference, and, to the court’s question, “Mr. Bowling, have you conferred with your client”, Bowling answered, “Yes, sir”; (5) that after the court had consulted with the petitioner and he had agreed to waive indictment as the others had done to the information, to the qnestion, “How do you plead”, Motley answered, “Guilty”; (6) that upon being asked by the court whether he wished to make a statement before sentence was imposed, Mr. Bowling stated for him that he had never been in trouble before and had no record, whereas the other boys had. “We would like to plead lenieney because this boy was led into it. I talked to him for some time and while he came down here with them, I don’t believe he had any intention of committing a crime when he started out that day.” He asked the court to be more lenient with him than with the others because “I sincerely believe he was led into it by one who had a long criminal record”; (7) that the district attorney then advising the court that Motley’s part in the occurrence was to drive the automobile, that he remained outside the bank while the others were inside it, and that he received a part of the money taken, the court, stating “All of you are equally guilty of" }, { "docid": "22327298", "title": "", "text": "ascertain that Pinson’s plea was knowing and intelligent. Because Pin-son phrased this claim to the district court in terms of ineffective assistance of counsel with respect to his competency, rather than directly claiming that he was incompetent and thus that his plea was invalid, the district court held the claim barred by his appeal waiver. Given the liberal construction we are bound to give the filings of pro se applicants, however, we cannot embrace the district court’s reasoning on this issue. Liberally construed, Pinson’s competency claim goes to the validity of the plea agreement itself — including the appeal waiver provision- — and so the appeal waiver cannot preclude the claim. See Hahn, 359 F.3d at 1325. But, as the district court noted, in accepting Pinson’s guilty plea, the court had ample evidence before it both of Pin-son’s history of emotional problems and his competency as of the date of the hearing. Both prior to accepting the guilty plea and as part of the presentence investigation, Pinson’s competency was thoroughly tested during his original proceedings. At Pinson’s plea colloquy, the following exchange occurred between the judge, the defendant, and the defendant’s counsel: THE COURT: Have you ever been confined in an institution for the treatment of mental illness or ever been found mentally incompetent or mentally ill? DEFENDANT PINSON: Yes, Your Honor. THE COURT: Have you actually been found mentally incompetent or mentally ill— DEFENDANT PINSON: Not mentally incompetent, but suffering from depression and other maladies, but not actually incompetent or anything of that matter. THE COURT: Are you satisfied you understood what you were doing at the time of these alleged offenses? DEFENDANT PINSON: I knew exactly what I was doing, [Y]our Honor. THE COURT: And are you satisfied you understand what’s going on today? DEFENDANT PINSON: I understand everything that’s going on, sir. THE COURT: Do you have any doubt about that, Mr. Wells? MR. WELLS: No. As a matter of fact, on the record, I would inform the Court that I have — the Court authorized me to hire a psychologist to help in this case. He" }, { "docid": "5248045", "title": "", "text": "Nob Lounge? “A. No, sir. “Q. There had been no previous discussion between you and Mr. Logan? “A. No, sir.” (N.T. 149-51). The Government also called Mariana Falce, the owner of the Hob Nob Lounge, whose testimony related solely to her cooperation with, but not participation in, the investigation. . As part of the plea agreement, the Government dismissed another indictment against him which had charged him with numerous other violations of the Hobbs Act. Logan stated during cross examination: “Q. So on the 20th you told the agents you gave Mr. Graner $300, and on the 21st you weren’t sure how much you gave him, or were aware of the details of the change in the assessment? “A. Yes, sir. “Q. How long has it been since you pleaded guilty? “A. It was, I think, I think it was the 11th. I think it was the 11th. I think. “Q. And today, approximately ten days after you pleaded guilty in exchange for which the government agreed to dismiss four counts of violation of the Hobbs Act, you say that you gave Mr. Graner $200 and that Mr. Graner did know all about the pre-arrange-ments for this fixing of the assessment? “A. Yes, sir. * * * * * * “Q. What effect do you believe your testimony against Mr. Graner will have on your sentencing with respect to the guilty plea? “A. I don’t know.” (N.T. 86-88). . The defendant also called his supervisor, Allen Fyock, whose testimony the district court restricted to recounting what transpired when he and the defendant physically inspected the Hob Nob Lounge. . The defendant described his calculations this way: “Q. Now, it sounds like you had some pre-conceived notion that you wanted that assessment to be $6100 when you just worked back from that. “A. Well, I made that comparison with the Melting Pot [the other bar], which was sixty-four, and made a comparison there, and putting the building in for approximately $5 a square foot, comes to $6000 or $6,100. “Q. Was the Melting Pot assessed at approximately $5 per square foot?" }, { "docid": "11686843", "title": "", "text": "be given a sanity hearing, and he told me if he was appointed my attorney that he wouldn’t ask for these changes. “I said, ‘Well, sir, you’re not going to be my attorney.’ “Q. Did you tell him you had been previously committed to the mental institution in Big Springs? “A. Yes, sir. He talked to me about that. “Q. Approximately how long did you talk with Mr. Ratliff on that date ? “A. Approximately 15, 20 minutes. “Q. And that is main contents of your conversation with him? “A. Yes, sir. That was it. “Q. When was the next time that you saw Mr. Ratliff? “A. The evening when I got the 75 years. “Q. All right. Did you ever see him in jail at any time? “A. No, sir. He never came to jail. “Q. The next time you saw him is the time you were again taken before the court, is that correct? “A. That’s right.” Mr. Ratliff’s affidavit introduced in evidence deposed as follows: “I discussed the cases with Mr. Daugherty on January 8, 1960. He told me at that time that he was trying to deal with the District Attorney and that he had signed a confession and was going to make the best deal that he could with the District Attorney. Mr. Daugherty was brought from the jail and I conferred with him in a private room, at which time he told me that he had signed a confession and that he was negotiating with the District Attorney for a lesser sentence. I advised Mr. Daugherty that he did not have to plead guilty and that he was entitled to a jury trial if he so desired, but he informed me that he had signed the confession and that it did not appear that he could beat the cases.” On January 8, following this fifteen or twenty minute conference, Daugherty entered a plea of not guilty to each of the two indictments (R. pp. 84, 107). Mr. Ratliff then left solely to Daugherty the making of a “deal” to plead guilty. By January 19" }, { "docid": "14958039", "title": "", "text": "charges that are made in this indictment? THE DEFENDANT: No, sir. THE COURT: I want you to be sure about this because I have to make a decision as to whether to permit you to plead guilty, and I am not going to permit a man who thinks he didn’t do anything, didn’t do these acts, to plead guilty. THE DEFENDANT: Well, the bank robbery was committed willingly, but the kidnapping wasn’t committed willingly. THE COURT: What is the position of the government in this matter? MR. WOELFLEN: We will stand on the indictment, your Honor, and if we intend to go to trial we intend to prove each element charged in the indictment. THE COURT: Well, now, Mr. Lone, let’s explore this because I want you to be clear-cut in your own mind and not to enter a plea to something you didn’t do, or don’t think you did. Is there some question of terms that disturbs you, because I take it you frankly admit using a weapon in order to rob the bank? THE DEFENDANT: Yes, sir, but when I was shot, I don’t know, you lose your head. I don’t know what other gues would have done. When I was shot I lost my head. I wasn’t in my right mind then. THE COURT: Well, Mr. Hammack, in view of that statement where are we? MR. HAMMACK: I am perfectly willing to do whatever the defendant wishes to do. If he wishes to get the permission of the Court to withdraw his plea of Guilty and change to Not Guilty I am ready to go to trial. THE COURT: He hasn’t pleaded Guilty yet. MR. HAMMACK: I wish the record to show that I wish to do everything I possibly can for the defendant. He must make the decision. THE COURT: Well, he takes the position that — I take it, Mr. Lone, your position is that you either don’t know what you did insofar as the — what you call “kidnapping” is concerned, that is, requiring these people to go with you against their will, or" }, { "docid": "22327299", "title": "", "text": "At Pinson’s plea colloquy, the following exchange occurred between the judge, the defendant, and the defendant’s counsel: THE COURT: Have you ever been confined in an institution for the treatment of mental illness or ever been found mentally incompetent or mentally ill? DEFENDANT PINSON: Yes, Your Honor. THE COURT: Have you actually been found mentally incompetent or mentally ill— DEFENDANT PINSON: Not mentally incompetent, but suffering from depression and other maladies, but not actually incompetent or anything of that matter. THE COURT: Are you satisfied you understood what you were doing at the time of these alleged offenses? DEFENDANT PINSON: I knew exactly what I was doing, [Y]our Honor. THE COURT: And are you satisfied you understand what’s going on today? DEFENDANT PINSON: I understand everything that’s going on, sir. THE COURT: Do you have any doubt about that, Mr. Wells? MR. WELLS: No. As a matter of fact, on the record, I would inform the Court that I have — the Court authorized me to hire a psychologist to help in this case. He has reviewed the records. He has also talked with Mr. Pinson over at the county jail and I do anticipate using him at the time of sentencing for mitigation purposes, but he informed me that it is also his opinion that Mr. Pinson is very competent, that he does have definite issues, but that he is competent to understand what he was doing. (R. vol. 1 at 61-62.) Based upon this exchange and the evidence before the court both at the time of the plea and before sentencing, we cannot say that the original court had any reason to believe that Pinson was not competent to plead guilty and waive his right to appeal. In his § 2255 petition, Pinson adduced no competent evidence that would lead us to question this conclusion. Pinson has thus failed to carry his burden of making out a “substantial showing” of the denial of his right to due process, and we thus decline to grant a COA on this issue. B. Restriction on Correspondence Pinson next argues that an" }, { "docid": "22778937", "title": "", "text": "happen will be sentencing. Lambert: Yes, sir. The Court: All right. You also give up the right to appeal to a higher court after a trial. Do you understand that? Lambert: Yes, sir. The Court: If we completed the trial, Mr. Lambert, or continued with it, you would have the right to hear and to see anyone who gave evidence against you, you would have the right to require witnesses to appear and testify on your behalf, you would have the right to testify yourself or not as you saw fit, and you would be convicted of an offense only if the jury unanimously found that you were guilty based on the evidence beyond a reasonable doubt. Do you understand that? Lambert: Yes, sir. The Court: Mr. Lambert, before I call upon you to state your plea, do you want any more time to consult with your lawyer? Lambert: No, sir. The Court: Do you have any questions for me? Lambert: No sir. Next, the trial court inquired into Lambert’s competency to plead guilty. The court questioned Lambert’s attorney, Romero, and the prosecuting attorney, Rnodell, about the findings of Dr. Mays, the mental health professional who had examined Lambert prior to trial. Satisfied that Lambert was competent, the court then heard the following testimony from Romero: Mr. Romero: For the record, my client has indicated to me that he had been thinking about this decision for quite sometime [sic]. We had — I had met with him on a regular, on a daily basis for the last two weeks preparing him for trial, and also with an anticipation of a plea agreement that was initially rejected by the State also. So it’s not something he decided spontaneously or made a compulsive decision, impulsive decision, excuse me. I gave him the Statement of Defendant on Plea of Guilty and he read it to me aloud, word by word, except for pages, the last two pages. Also present during the reading of the Statement of Defendant on Plea of Guilty was an employee for Grant County jail. After thoroughly reading the statement" }, { "docid": "21001167", "title": "", "text": "guilty to a lesser offense. 8. At the time of entry of the guilty plea, December 14, 1961, the record shows that the Solicitor .stated to the court that “(t)he defendant, through his counsel, in open court, tenders to the state a plea of guilty of assault upon a female with intent to commit rape, which plea the state accepts.” (Tran. p. 1) Immediately thereafter, and sufficiently important to be set out verbatim, occurred the following: “The Court: Is that correct? That is the plea you enter?” “The Defendant: Yes.” (Ibid) “The Court: You do it freely and voluntarily, knowing the probability is you will get an extended prison term, is that right?” “The Defendant: Yes, sir.” (Id., at p. 2) 9. Thereafter, the court proceeded to hear evidence going to the question of guilt for the purpose of determining proper punishment. 10. After the evidence had been heard, Mr. Mooneyham addressed the court asking for leniency, and in the course of his remarks, advised the court that the defendant was submitting to this lesser offense (as compared with the capital felony) because of his prior record, and that he still asserted his innocence. (Tran. p. 10) Whereupon it appears the court said in response: “I thought this man was pleading guilty. I am not finding him guilty. I don’t want any misunderstanding about that because he has plead guilty now, and if there is any misunderstanding, I want him to withdraw it and continue the matter.” “Mr. Mooneyham: No, sir, he knows he has plead guilty.” “The Court: I don’t want him to go out and say he was sentenced for something he didn’t do.” (Tran. pp. 10 and 11) 11. Thereafter, the court afforded the defendant the right of allocution. Nothing was said by the defendant with respect to his plea or with respect to whether he was truly guilty or innocent. 12. After the defendant had spoken at some length, the court again addressed him in words as follows: “Well, you understand you have plead guilty to this thing. That is what you wanted to do, wasn’t" }, { "docid": "8059974", "title": "", "text": "what this is about, has he ? “The Defendant. Yes, sir. “The Court. And you are fully familiar with what you are pleading guilty to, is that right? “The Defendant. Yes, sir. “The Court. And the doctor has been over you today and he says that you have had some narcotics but that he thinks you know perfectly well what you are doing. You do? “The Defendant. Yes, sir. “The Court. You understand everything that is going on ? “The Defendant. Yes, sir. “The Court. And you are, therefore, pleading guilty to Count 9 which charges you with violation of the narcotic laws because you are guilty and for no other reason whatever ? “The Defendant. Yes, sir.” The plea of guilty was thereupon accepted and the matter referred to the probation officer of the court for pre-sentence investigation. After the report of that investigation, and on March 8, 1957, two months after his plea, appellant appeared for sentencing, at which time he was represented by counsel. There was no statement at this appearance, either by appellant or his counsel, relating to appellant’s mental capacity. Nor was any statement made that he was under the influence of narcotics or otherwise mentally incapable at the time of his plea. The following inquiries were made of appellant and his counsel at the time of the sentencing: “Mr. Allder [appellant’s counsel]: * * * I know Your Honor has a full report from the Probation Office before you. This defendant stands before Your Honor after having entered a plea of guilty to one count of selling narcotics. He has a previous record. The only thing I can say to Your Honor is that my information of what happened in this particular instance is it was not a large thing. It was one sale only, one transaction. Even though there were other counts, they were describing the same act, violating the statute in a different manner and he was a user of narcotics at the time. I ask Your Honor to consider those things, his age and that he has been incarcerated now since" }, { "docid": "8059973", "title": "", "text": "be made by Dr. Thomas E. Griffin with regard to appellant’s competence to plead. Dr. Griffin was then, and is now, not only a well known psychiatrist but also Chief of the Legal Psychiatric Services, D. C. Department of Welfare, attached to the District Court, and in charge of the drug addict probationary program in the District of Columbia. In his report, made the same day, Dr. Griffin stated that it was his opinion that appellant was “well enough in control of his faculties to be able to understand the proceedings against him, to assist in his own defense, and to plead to the charges pending against him.” It is true that Dr. Griffin further stated in his report that appellant would “soon begin to suffer from symptoms of withdrawal from drugs and that these symptoms [would] reach their maximum in about 24 hours.” Upon receipt of the report, the trial court made the following inquiries of appellant, who again was accompanied by his counsel: “The Court. Mr. Coates, your counsel has explained to you what this is about, has he ? “The Defendant. Yes, sir. “The Court. And you are fully familiar with what you are pleading guilty to, is that right? “The Defendant. Yes, sir. “The Court. And the doctor has been over you today and he says that you have had some narcotics but that he thinks you know perfectly well what you are doing. You do? “The Defendant. Yes, sir. “The Court. You understand everything that is going on ? “The Defendant. Yes, sir. “The Court. And you are, therefore, pleading guilty to Count 9 which charges you with violation of the narcotic laws because you are guilty and for no other reason whatever ? “The Defendant. Yes, sir.” The plea of guilty was thereupon accepted and the matter referred to the probation officer of the court for pre-sentence investigation. After the report of that investigation, and on March 8, 1957, two months after his plea, appellant appeared for sentencing, at which time he was represented by counsel. There was no statement at this appearance, either" }, { "docid": "21001168", "title": "", "text": "offense (as compared with the capital felony) because of his prior record, and that he still asserted his innocence. (Tran. p. 10) Whereupon it appears the court said in response: “I thought this man was pleading guilty. I am not finding him guilty. I don’t want any misunderstanding about that because he has plead guilty now, and if there is any misunderstanding, I want him to withdraw it and continue the matter.” “Mr. Mooneyham: No, sir, he knows he has plead guilty.” “The Court: I don’t want him to go out and say he was sentenced for something he didn’t do.” (Tran. pp. 10 and 11) 11. Thereafter, the court afforded the defendant the right of allocution. Nothing was said by the defendant with respect to his plea or with respect to whether he was truly guilty or innocent. 12. After the defendant had spoken at some length, the court again addressed him in words as follows: “Well, you understand you have plead guilty to this thing. That is what you wanted to do, wasn’t it ?” “The Defendant: Yes.” (Tran. P-13) 13. Thereupon, the court sentenced the defendant to a term of not less than 12 nor more than 15 years, and the defendant was immediately taken back to jail. 14. The defendant is alert and his ■demeanor is such as to convey the impression that he grasps and understands the nature of the present habeas corpus proceedings. During cross-examination and questioning by the court, his responses to questions indicated complete understanding of the matters being inquired into. He has a sixth grade education and is not lacking in intelligence. According to Dr. Sargent, prison physician, he is “not quite right.” But, also according -to Dr. Sargent, he appreciates and understands the nature of the proceedings and is not “insáne.” He knows and understands the difference between right and wrong. At the time of sentencing he understood the significance of the relevant facts and the nature of the proceeding. 15. No evidence is forthcoming from the petitioner to seriously put in issue the question of his mental competence at" }, { "docid": "744262", "title": "", "text": "it like Dusky where an improper test of mental competency to stand trial was applied and the final decision in the Supreme Court was deemed too late to retrospectively determine the petitioner’s mental competency at the time of trial. On the whole record we are satisfied that the Petitioner was accorded full due process on his mental competency to plead guilty and the judgment is affirmed. . We have repeatedly held that in a § 2255 proceeding where one of the grounds asserted for relief is mental incompetency at the time of the guilty plea, a § 2255 motion cannot be decided “without a hearing in reliance on report of doctors at Medical Center for Federal Prisoners, since defendant was entitled to an opportunity to cross-examine doctors and to present evidence of his own as to his mental condition.” Butler v. United States, 361 F.2d 869 (10th Cir. 1966). . After Wolcott assured the judge that he had had ample time to consult with his attorney, the judge continued: “I would now inquire of the marshal, of the United States Attorney and of the two defendants and also of you, Mr. Carter [appointed counsel], is there any reason to believe that the defendant, Robert John Wolcott, is not able to make an intelligent and comprehensive determination as to whether or not he should execute a waiver in this case to have the matter presented to a Grand Jury?” After Wolcott formally pleaded guilty, the judge inquired: “ * * * have there been any threats or promises of any kind made to you by anyone to obtain your plea of guilty?” DEFENDANT: “No sir, Your Honor.” * * ❖ * THE COURT: “Are you entering a plea of guilty voluntarily and of your own free will, being fully informed and fully capable of making a judgment to enter your plea, and after consultation with your attorney?” DEFENDANT: “Yes sir, Your Honor.” * * * ■ :¡¡ * THE COURT: “Do you understand that by ' pleading guilty you make no claim of innocence, but fully and voluntarily admit that you" }, { "docid": "454999", "title": "", "text": "had been sent for examination immediately after his arrest. Presumably because neither party had seen fit to dispute appellant’s competency to stand trial, this witness was not questioned directly about the critical issue on this appeal. Nevertheless, his testimony included a good deal of information and opinion comment which the trial judge had a right to consider relevant to the competency issue. Portions of Dr. Kernoke’s testimony at appellant’s trial follow: “13. In your capacity as chief of the clinical director at Western State Hospital, will you state whether or not there was referred to you and your staff the case of the person of William (Bill) Conners, who is. the defendant in this action? A. Yes. He was admitted to Western State Hospital on a warrant of arrest on April the 19th. 14. You, of course, have been in the Court room here and have heard the testimony here this morning that this incident occurred on the night of April the 15th? A. Yes sir. 15. It has been testified here his arrest was effected the next day on the 16th. He was in your hospital on the 19th ? A. Yes sir. 16. Some two or three days later? A. Yes sir. 17. How long was this man in your institution and under your treatment and care and observation? A. For one month. 18. Exactly one month? A. Yes sir. He left the 19th of May of this year. 19. During that period of time, say whether you and your staff did, in fact, test and observe this man, William (Bill) Conners? A. That is correct. 20. - In your field as a psychiatrist, did you, based upon your obser vations and your tests and the treatment you gave him during this period, did you arrive at and do you now have an opinion as to the mental condition of Bill Conners and what it was on the night of April 15, 1962? A. I do. 21. What is it, Doctor? BY MR. DONALD OVERBEY: OBJECTION. I object unless the Doctor would state his own observations. It is" }, { "docid": "16259267", "title": "", "text": "he bore the burden to establish his incompetency by clear and convincing evidence. The jury found Allen did not meet his burden of proof, thus finding him competent to stand trial. B. Plea of Guilty Less than a month later, on November 10, 1987, Allen changed tack and entered a blind plea of guilty. In preparing to take the plea, the court inquired of Allen, “[h]ave you ever been treated by a doctor or confined in a hospital for mental illness?” (R. Vol. 3, Tr. Change-of-Plea at 3.) Allen answered in the negative. This colloquy between the court and trial counsel followed and constitutes the sum of the discussion of the prior competency determination: MS. BAUMANN: Judge, he was sent to Eastern State Hospital and spent about 4 months there. He was there for evaluation and treatment, after November of '86, and he was returned as competent. Q. That was not just for competency-determination, but for actual treatment? MS. BAUMANN: I believe he was given medication while he was there and the determination at the very beginning was that he was not competent, and then some 4 months later he was in fact returned as competent. We did have a competency trial last month before Judge Cannon, and at that time the jury returned a verdict of competent as well. Q. The jury determined him to be competent? MS. BAUMANN: Yes, sir. (Id. at 3-4.) Critical to our review, the court then inquired of Baumann, who also represented Allen at the competency trial, “do you have any reason to believe that Mr. Allen is not mentally competent to appreciate and understand the nature, purposes and consequences of this proceeding?” (Id. at 4.) To this question, Baumann responded in the negative and assured the court that Allen had assisted her in presenting any available defense to the charge. Allen assured the court he had reviewed with counsel the charges and possible penalties. The court then engaged in the familiar plea colloquy with Allen, who told the court he understood all of his enumerated rights and had reviewed them with counsel. Contemporaneous" }, { "docid": "763915", "title": "", "text": "Your Honor. “THE COURT: What, that I will allow him to run around loose as long as some doctor comes in here and says that he doesn’t think he can answer quite as well as he should? “MR. LERNER: Well, I would think that if the— “THE COURT: Well, you have that in mind. When your doctor comes in here — and I will have the hearing; I won’t commit him although I think I should. We will set this down for a hearing and I will notify yon later in the day, when I cheek my schedule, so that yon will have time to get whatever medical experts yon need, but after that is concluded he will either be committed to an institution or he will go to trial. “Is that clearly understood?” (Emphasis added). . The text of the United States Attorney’s letter to Dr. R. E. Strange, Dr. Stice’s superior at the Hospital, reads as follows : “On June 11, 1970 the above-named defendant was indicted by a federal grand jury sitting in Philadelphia, for failing to obey a lawful order of Selective Service Local Board No. 334 in Bristol, Pennsylvania directing him to report for and submit to induction into the Armed Forces on December S, 1969. The defendant was arraigned on August 25, 1970 and pleaded not guilty. The case was scheduled for trial on January 4, 1971 before the Honorable Harold K. Wood. In December, defendant’s counsel filed a Motion for a Determination of the Competency of the Defendant to Stand Trial pursuant to Title 18, United States Code, Section 4244. That section provides that in the event such a motion is filed, tile Court must order a hearing to determine the mental competency of the defendant to stand trial. “The questions which I would kindly ask that you answer after having examined the defendant are as follows: “1. Do you believe that the defendant is presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly assist in his own defense? Kindly state the reasons" }, { "docid": "22440004", "title": "", "text": "have never been in prison before and I am ashamed. I would appreciate if you would do the best you can for me. I want to say one other thing, Judge, Mr. Carr didn’t tell the truth on Mr. Echeles when he testified from the stand. Mr. Echeles didn’t tell him to say anything. He asked him a few questions, how long he had been in Hot Springs, things like that. That didn’t tell him no testimony in this trial. That’s all I have to say. Thereafter, on June 27, 1963, upon his plea of guilty Arrington was sentenced to 12 years imprisonment. At the time of his sentencing, Arrington made the following statements in open-court: The Court: And you — I want to test your intelligence here. When you took the witness stand in the case where you were tried and in which you pleaded guilty after the trial had progressed, you took the witness stand and said that you— you admitted that the testimony you had given in respect to your Hot Springs visit was not true, didn’t you? Defendant Arrington: Yes, but I mean about the card— The Court: And you said then that Mr. Echeles did not tell you to do that, isn’t that right? Defendant Arrington: He didn’t tell the clients what to do. The Court: He didn’t tell you what to do about that, did he? You said that from the witness stand and you said it right at the same lectern at which you stand now, isn’t that right? Defendant Arrington: Yes, sir. The Court: That is right, isn’t it ? Defendant Arrington: Yes, sir. The Government submitted this matter to the September, 1963 federal grand jury in Chicago. The grand jury eventually returned an indictment against Echeles, Arrington and Mrs. O’Neil in five counts. Count One involved Arrington only. It charged a violation of Title 18, Section 1621, in that Arrington committed perjury on May 27, 1963, during his narcotics trial, by testifying that on April 6, 1961, he signed a registration card of Carr’s Motel, Hot Springs, Arkansas, and that he" }, { "docid": "14958040", "title": "", "text": "THE DEFENDANT: Yes, sir, but when I was shot, I don’t know, you lose your head. I don’t know what other gues would have done. When I was shot I lost my head. I wasn’t in my right mind then. THE COURT: Well, Mr. Hammack, in view of that statement where are we? MR. HAMMACK: I am perfectly willing to do whatever the defendant wishes to do. If he wishes to get the permission of the Court to withdraw his plea of Guilty and change to Not Guilty I am ready to go to trial. THE COURT: He hasn’t pleaded Guilty yet. MR. HAMMACK: I wish the record to show that I wish to do everything I possibly can for the defendant. He must make the decision. THE COURT: Well, he takes the position that — I take it, Mr. Lone, your position is that you either don’t know what you did insofar as the — what you call “kidnapping” is concerned, that is, requiring these people to go with you against their will, or that whatever you did was not your voluntary act ? THE DEFENDANT: Yes, sir. THE COURT: If you plead guilty, of course you are pleading guilty to all of the charges, and the United States Attorney says that he intends to proceed. As a matter of fact, Mr. Woelflen, aren’t these separate charges in the same indictment? MR. WOELFLEN: No, I don’t believe they are, your Honor. It is my understanding they are merged into the indictment insofar as the penalty aspects are concerned. I think we had a discussion about this case here before your Honor approximately a year ago when we were discussing a bank robbery case. It was my understanding at that time, from the research that your Honor undertook and I undertook, that these were part and parcel of the same offense. MR. HAMMACK: That is true, your Honor, and there is no objection to pleading the anti-trust provisions thereof and dismissing the others. It is true the lesser are merged in the greater. No doubt about that. I have discussed" }, { "docid": "14859542", "title": "", "text": "the influence of any drugs or alcohol? A I drink a lot. Q Have you today? A No, sir. Q Have you had any drugs at all today? A Yes, sir. Q Take any kind of medication today? A No, sir. The prosecutor did not ask the petitioner what drugs he had taken that day. Nor did the court pursue the point when it questioned petitioner moments later. The prosecutor then concluded his examination of petitioner: Q Are you completely — have all your faculties, you understand everything that’s going on here? A I don’t understand all of it but I understand most of it. Q You understand you’re pleading guilty to murder? A Yes, sir. , Q Mr. Gaddy, to this charge of murder ... how do you plead; guilty or not guilty? ' A Guilty. At this point, the prosecutor had petitioner and his attorney sign the indictment. Petitioner signed with an “X”; his mother witnessed his mark by affixing her signature to the indictment. Thereafter, the court addressed petitioner: THE COURT: You understand what you are charged with in this indictment? MR. GADDY: Yes, sir. THE COURT: Tell me what you are charged with. MR. GADDY: Murder. THE COURT: What kind of sentence could be imposed on a person convicted of murder? MR. GADDY: Life or death. THE COURT: Have you had a chance to talk with your lawyer about this case? MR. GADDY,: Yes, sir. THE COURT: After talking with your lawyer, did you make up your own mind about whether to plead guilty? MR. GADDY: Yes, sir. (Whereupon a recess was taken in the hearing.) THE COURT: After talking with your lawyer and talking with your mother, did you make up your own mind about pleading guilty on this charge? MR. GADDY: Yes, sir. The court then addressed petitioner’s counsel: THE COURT: Mr. Spruell, are you satisfied that James Herschel Gaddy understands the charges against him? MR. SPRUELL: Yes, sir. THE COURT: Are you satisfied he understands this proceeding; that by entering a plea of guilty he gives up the right to contest the issues" }, { "docid": "9509231", "title": "", "text": "do you sir? BY OBIE DIAH STROTHER: Yes sir. BY THE' COURT: Has anybody offered you any inducement to plead guilty to any or all of these counts? BY OBIE DIAH STROTHER: No sir. BY MR. WILLIAMSON : Judge, so far as we have been able to understand there has been no promises made whatsoever to him. BY THE COURT: I believe you understand something as simple as I am asking you. I want to know if anybody has caused you to want to plead guilty to something so serious as this or has somebody done or said something to make your plea other than completely voluntary? BY OBIE DIAH STROTHER: No sir. BY THE COURT: In other words you knowingly and understandingly wish to enter a plea of guilty to all of the counts? BY OBIE DIAH STROTHER : Yes sir. BY THE COURT: How many of them are there? BY MR. STRANGE (Assistant U. S. Attorney) : Two counts, Your Honor. BY THE COURT: Two counts and you wish to enter that plea of guilty under those circumstances ? BY OBIE MAI-1 STROTHER: Yes sir. BY THE COURT: All right. You say he has waived venue? BY MR. STRANGE: Yes sir, Your Honor. BY THE COURT:' All right. All right, on your plea of guilty on count one and two of this indictment I adjudge you, Obie Diali Strother, to be guilty of the charges contained in count one and count two of this indictment and I will defer sentence to await receipt of a presentence report and I understand that that -will take some little time.” . “BY MR. STRANGE: May it please the Court, the next case that government has is against Obie Diah Strother. It is an indictment from the Western District of Tennessee charging him with the interstate transportation of a stolen motor vehicle and the concealing of a stolen motor vehicle. Tlie defendant lias previously executed a consent to have the matter transferred here pursuant to Rule 20. He has been furnished a copy of the indictment and Mr. Leslie Williamson and Mr." } ]

[ { "docid": "3645180", "title": "", "text": "fees as “costs” should be read into Rule 68. It is, thus, appellant’s position that as a matter of law this Rule 68 offer of judgment translates into an offer to pay $5,000 plus traditional costs plus attorney’s fees. The City of Springfield challenges appellants’ interpretation arguing that the $5,000 settlement figure is inclusive of attorney’s fees, and that under the phrase “plus costs then accrued” they are responsible only for the traditional “costs” which may be assessed under 28 U.S.C. § 1920. There is no dispositive case law on this issue. Although some members of the Court spoke to the problem in Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981), the majority opinion did not address whether a Rule 68 offer of judgment necessarily includes attorney’s fees within the offer to pay “costs then accrued.” In a separate opinion concurring in the result, Justice Powell notes that in Title VII cases a Rule 68 offer of judgment is a proposal of settlement that, by definition, stipulates that the plaintiff shall be treated as a prevailing party and that the “costs” component of the Rule 68 offer will include reasonable attorney’s fees. Id., at 363, 101 S.Ct. at 1155. Justice Powell reasons that because “costs” are no where defined in the Federal Rules of Civil Procedure, one must look to the fee provision of the Civil Rights Act, 42 U.S.C. § 1988, to determine the types of costs assessable under Rule 68. Since Section 1988 includes attorney’s fees “as a part of the costs,\" then, a Rule 68 offer of judgment providing for “costs then accrued” must be read to include “costs and attorney’s fees then accrued.” Justice Rehnquist, with whom the Chief Justice and Justice Stewart joined in dissent, disagree with Justice Powell. Id, at 375-380, 101 S.Ct. at 1161-1164. Relying upon Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980), they contend that “the ‘contemporaneous understanding’ of the term ‘costs’ when the Federal Rules of Civil Procedure were promulgated in 1938 did not include" } ]

[ { "docid": "8087654", "title": "", "text": "own costs and attorneys’ fees taxed against Payne, once again because the final award Payne received was less than the amount they had offered. The district court (Magistrate Judge Gorence, sitting by consent) decided that Milwaukee County was entitled to both its costs pursuant to Rule 68 and its attorneys’ fees, while Sutton was not entitled to anything. II Although a prevailing plaintiff in a civil rights case is normally entitled to costs pursuant to Fed.R.Civ.P. 54(d), and to attorneys’ fees under 42 U.S.C. § 1988, those rules are qualified by the operation of Fed.R.Civ.P. 68. Rule 68 is designed to provide a disincentive for plaintiffs from continuing to litigate a case after being presented with a reasonable offer. The part of Rule 68 critical to this appeal is a cost-shifting provision affecting a plaintiff who rejects a good-faith offer that turns out to be equal to or more than the actual judgment: If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. See Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985); Delta Air Lines, Inc. v. August, 450 U.S. 346, 351-56, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981). Payne finds himself precisely in the situation covered by Rule 68: in hindsight, he would have been better off accepting either one of Milwaukee County’s offers, rather than taking his chances at trial. He therefore must bear whatever consequences the rule prescribes for his failure accurately to evaluate his claim (or perhaps for the murkiness of his crystal ball). Rule 68 is designed to change the incentive structure of a plaintiff faced with a reasonable offer. The twin aims of the rule, in its ex post application, are to compensate the defense for costs it ought not to have incurred, and to deter future plaintiffs from lightly disregarding reasonable settlement offers made with the formalities prescribed by the rule. See Moriarty v. Svec, 233 F.3d 955, 967 (7th Cir.2000). These twin aims lead to two analytically distinct questions" }, { "docid": "3645182", "title": "", "text": "attorney’s fees.... ” Delta Air Lines, supra, 450 U.S. at 377, 101 S.Ct. at 1162. Similarly, they argue that the intent of the drafters, as well as the interests of public policy, dictate against construing Rule 68 to allow attorney’s fees to be recoverable as costs. Thus, they conclude that attorney’s “fees are just as susceptible to compromise and settlement as are other inchoate consequences of liability such as compensatory damages or backpay.” (footnote omitted) Id., at 378-79, 101 S.Ct. at 1163. Although there is no easy answer to the question whether, in a Rule 68 offer of judgment in a civil rights action, the phrase “with costs then accrued” includes attorney’s fees, we are inclined to agree with Justice Powell’s analysis. Other courts which have considered the issue are divided. Two District Courts have concluded that the only reasonable accommodation of Rule 68 and the fees provision of the underlying statutes involves treating an offer for “costs then accrued” as including attorney’s fees. See Waters v. Heublein, 485 F.Supp. 110 (N.D.Cal.1979); Scheriff v. Beck, 452 F.Supp. 1254 (D.Colo.1978). In Scheriff, the defendant served an offer of judgment on the plaintiff “in the amount of $2,200 together with costs, not including attorney’s fees, incurred to date.” Plaintiff rejected the offer and eventually recovered less than the amount offered. When defendant sought to invoke the penalties of Rule 68, plaintiff countered that the offer of judgment was fatally defective because it had excluded attorney’s fees then accrued. The Scheriff court agreed. Id., at 1260: Rule 68 requires that an offer of judgment include payment of costs then accrued. In civil rights actions attorney’s fees can constitute part of the costs. Rule 68 does not permit an offeror to choose which accrued costs he is willing to pay. Thus, the offer of judgment is invalid and [defendant] will not be awarded his costs which accrued after the date of the offer of judgment. Likewise, we agree. When Congress drafted 42 U.S.C. § 1988, it described attorney’s fees “as a part of the costs.” Congress could have simply authorized the recovery of attorney’s" }, { "docid": "23591707", "title": "", "text": "which may soon be resolved by the Supreme Court. Compare Fulps v. City of Springfield, 715 F.2d 1088 (6th Cir.1983) (attorneys’ fees included) with Chesny v. Marek, 720 F.2d 474 (7th Cir.1983) (fees not included), cert. granted, — U.S. —, 104 S.Ct. 2149, 80 L.Ed.2d 536 (1984), argued, 53 U.S.L.W. 3430 (Dec. 5, 1984) (No. 83-1437) and Pigeaud v. Maclaren, 699 F.2d 401 (7th Cir.1983) (same); compare Delta Air Lines, Inc. v. August, 450 U.S. 346, 376-79, 101 S.Ct. 1146, 1162-64, 67 L.Ed.2d 287 (1981) (Rehnquist, J., with whom Burger, C.J. and Stewart, J., joined dissenting) (fees not included) with id. at 362-63, 101 S.Ct. at 1155-56 (Powell, J., concurring) (fees included when underlying statute on which action is brought includes attorneys’ fees as costs). As the question of whether attorneys’ fees are costs within Rule 68 is now before the Supreme Court, we shall not presently review the district court's ruling that they are not costs. We focus instead on the district court’s determination that the judgment obtained was more favorable than the offer. If that conclusion is valid, it is immaterial whether attorneys’ fees are includable within Rule 68 costs, since defendants would not be entitled to costs. Before deciding whether or not to sustain the district court’s finding, we may ask whether Rule 68 applies at all in cases like this which involve complex injunctive remedies rather than easily compared dollar damages. The rule is silent and there is little authority on this issue. In the circumstances, we shall assume, without deciding, that Rule 68 is not limited to actions involving liquidated relief. But, adopting that approach, it seems obvious the district court’s determination of favorableness must be given a great deal of deference, since in complex cases involving unliquidated relief the relative merits of an early consent settlement and a later decree involve a host of considerations which the trial court is best able to appreciate and compare. Indeed, the decision as to which is the more favorable will ordinarily present a question of fact reviewable under the clearly erroneous standard. See Foggs v. Block, 722" }, { "docid": "13074836", "title": "", "text": "August, 450 U.S. 346, 363, 101 S.Ct. 1146, 1155, 67 L.Ed.2d 287, plaintiff has unearthed no truly supporting authorities. Since Justice Powell was alone in his view that Rule 68’s reference to costs includes a reasonable attorney fee, his view is not controlling. If Pigeaud had wished to obtain reasonable attorney’s fees before accepting the Offer of Judgment, he should have insisted that McLaren so provide in the Offer instead of unconditionally accepting the Offer whose text referred only to “costs and expenses provided for” in Rule 68. In Cruz v. Pacific American Insurance Corp., 337 F.2d 746 (9th Cir.1964), an offer of judgment was made by a defendant pursuant to Rule 68 offering to allow judgment to be taken against it for a certain amount “and for the necessary costs expended in this action by the plaintiffs.” The court noted that, as here, the offer of judgment did not refer to attorney’s fees and therefore required the trial judge to deny plaintiff attorney’s fees while awarding $37 costs. Similarly, in Gamlen Chemical Co. v. Dacar Chemical Products Co., 5 F.R.D. 215 (W.D.Pa.1946), the offer of judgment under Rule 68 did not refer to attorney’s fees and consequently the court refused to allow the successful party, Gamlen, attorney’s fees even though the general rule is to allow attorney’s fees in copyright actions such as Gamlen’s. Finally, in Greenwood v. Stevenson, 88 F.R.D. 225 (D.R.I.1980), defendants offer of judgment to plaintiff under Rule 68 included “accrued costs.” The court refused to award plaintiff attorney’s fees because the offer of judgment did not go beyond the legal meaning of costs and therefore did not include attorney’s fees. The treatises are in accord with the foregoing authorities. Thus 7 Moore’s Federal Practice, H 68.04 n. 4, cites with approval the Cruz case, supra, holding that an offer of judgment referring to costs — like McLaren’s — does not include attorney’s fees. The 1982-1983 supplement to volume 7, Moore’s Federal Practice cites with approval Judge Shadur’s ruling in the present case as well as the decision in Greenwood v. Stevenson, supra at 108 n." }, { "docid": "16964156", "title": "", "text": "be financially unable to make an offer at the higher amounts required. Still others, even if able to do so, will simply refuse to pay the higher sums and instead take their chances on prevailing at trial. Thus, contrary to the Supreme Court's instruction that the Rule be construed so as to further its purpose of encouraging settlements, see Marek, 473 U.S. at 6, 105 S.Ct. at 3015 (“This construction of the Rule best furthers the objective of the Rule, which is to encourage settlements.”); Delta Air Lines, Inc. v. August, 450 U.S. 346, 352, 101 S.Ct. 1146, 1150, 67 L.Ed.2d 287 (1981) (“Our interpretation of the Rule is consistent with its purpose. The purpose of Rule 68 is to encourage the settlement of litigation.”), the majority has construed the Rule in a manner that in fact will decrease the settlement incentives of both parties. C. The majority’s interpretation of the term “judgment finally obtained” to include preoffer attorney’s fees is also inconsistent with the interpretation of the Rule followed by this court in the recent case of Spencer v. General Elec. Co., 894 F.2d 651 (4th Cir.1990), a case not cited by the majority. There, the defendants made a Rule 68 settlement offer of $10,000 plus attorneys’ fees, job-related relief, and an injunction. The plaintiff rejected the offer, prevailed at trial, but received only nominal damages of one dollar. After trial, the district court awarded the plaintiff pre-offer fees of $52,-179, local counsel fees of $2,252.20, and expenses of $2,278.20, but denied her request for post-offer fees on the ground that the defendant’s offer of judgment was more favorable than the judgment that she finally obtained at trial. We affirmed, reasoning contrary to the majority today, that “[t]he judgment [the plaintiff] finally obtained was for one dollar.” Id. at 664. In determining whether the judgment finally obtained exceeded the defendant’s offer, we did not, as the majority’s opinion would require, include in the judgment finally obtained by the plaintiff the $56,709.40 in pre-offer costs awarded by the district court. We observed, in language apparently directed to a different aspect" }, { "docid": "23591705", "title": "", "text": "rule did not contemplate an award of attorneys’ fees, and that defendants’ offer had not, in any event, been more favorable than the relief obtained by the plaintiffs. In computing the amount of the award, the court allowed plaintiffs to recover fees from defendants for legal work covering all claims, including certain unsuccessful ones. It also allowed fees to plaintiffs for services related to their monitoring activities. The court awarded a bonus of 20 percent to two of plaintiffs’ counsel, for a total award of $220,140.58. Final judgment was entered. Defendants and plaintiffs both appeal from this determination. In No. 83-1946, defendants claim that the district court erred in denying their motion for fees and costs under Rule 68, and they challenge the inclusion of several items in the award made to plaintiffs. Plaintiffs cross-appeal, claiming the district court erred in failing to grant them interest on their fees award. In No. 83-1947 plaintiffs challenge the district court’s refusal to grant them fees against the school districts. We discuss these contentions below. II. DEFENDANTS’ FEES CLAIM UNDER RULE 68 Defendants contend that their pretrial offer of judgment under Rule 68 was at least as favorable as the judgment plaintiffs finally obtained. For that reason, they say the district court erred in disallowing their motion for post-offer costs including attorneys’ fees. In defendants’ view, Rule 68 entitles them to recover their own attorneys’ fees from plaintiffs, and bars plaintiffs from recovering their fees from defendants. At very least, say defendants, the latter is so — plaintiffs’ right, as the prevailing party, to recover fees is cut off by Rule 68. See Bitsouni v. Sheraton Hartford Corp., 52 U.S.L.W. 2354 (D.Conn. Nov. 23, 1983). In rejecting defendants’ post-trial motion for costs, including attorneys’ fees as a consequence of their earlier Rule 68 offer, the district court determined that the judgment finally obtained was more favorable than the offer. The court also held that attorneys’ fees were not “costs” within Fed.R.Civ.P. 68. Whether Congress meant attorneys’ fees to be recoverable costs under the rule is a question over which courts have differed but" }, { "docid": "7836219", "title": "", "text": "awardable” to Veoh under § 505, they were not award-able under Rule 68 either. B. Even though Veoh is not entitled to attorney’s fees under Rule 68, it may be entitled to its other costs. See, e.g., Champion, 342 F.3d at 1028 (holding that even though attorney’s fees were not properly awardable under Rule 68, costs (excluding fees) were mandatory). The district court, however, did not analyze whether costs apart from fees were warranted. Veoh has already been awarded some of its costs under Federal Rule of Civil Procedure 54(d), but it argues on appeal that it is entitled to all of its post-settlement offer costs under Rule 68. This may be true, if certain conditions are met. First, costs are awardable under Rule 68 where “the judgment that the offeree finally obtains is not more favorable than the unaccepted offer.” Fed.R.Civ.P. 68(d). Veoh argues that “[bjecause Veoh was already taking the measures set forth in the [stipulated] injunction, and UMG was primarily seeking monetary damages, the value of that stipulation was less than Veoh’s Rule 68 Offer.” Although this may prove true, the value of the stipulated injunction is not clear on this record. Second, Veoh can recover Rule 68 costs only if it is not a prevailing defendant. In Delta Air Lines, Inc. v. August, 450 U.S. 346, 352, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981), the Supreme Court held that Rule 68 “applies only to offers made by the defendant and only to judgments obtained by the plaintiff,” and “therefore is simply inapplicable [where] it was the defendant that obtained the judgment.” See also Goldberg v. Pac. Indem. Co., 627 F.3d 752, 755 (9th Cir.2010) (“Rule 68 does not allow a defendant to recover costs when judgment is entered in the defendant’s favor.”). The Court observed that holding otherwise would create an odd system in which “any settlement offer, no matter how small, would apparently trigger the operation of the Rule,” and “[t]hus any defendant, by performing the meaningless act of making a nominal settlement offer, could eliminate the trial judge’s discretion under Rule 54(d).” Delta, 450" }, { "docid": "14690709", "title": "", "text": "of any other plaintiff will involve the same issues (including the issue next decided in this opinion). Pigeaud and McLaren are entitled to seek review of the Opinion and this opinion without having to await the outcome of years of now-unrelated litigation. Accordingly, in accordance with Rule 54(b) this Court expressly determines that there is no just reason for delay and expressly directs that final judgment be entered in favor of Pigeaud. Attorneys’ Fees Under Rule 68 Under Rule 68 Pigeaud is entitled to “costs then accrued” (“then” of course refers to the time the Rule 68 offer was made). McLaren specifically referred to that provision in the Offer, which was for one dollar and “all costs and expenses provided for [in Rule 68] . . . . ” Pigeaud maintains that Rule 68 “costs” include a reasonable attorney’s fee and has submitted a bill of costs requesting a fee award. First, the Opinion has already stated that Pigeaud’s contention is not supported by the Rule 68 award of attorneys’ fees in Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981), where the defendant’s offer had specifically “include[d] attorney’s fees,” id. at 1148 n.2. Moreover Delta Air Lines was a Title VII ease, where the statute entitles a prevailing plaintiff to “a reasonable attorney’s fee as a part of the costs.” 42 U.S.C. § 2000e-5(k). Neither of those factors operates in Pigeaud’s favor here. Pigeaud advances several other cases as supporting the award of attorneys’ fees as a part of Rule 68 costs. Scheriff v. Beck, 452 F.Supp. 1254 (D.Colo.1978); Coop v. City of South Bend, 635 F.2d 652 (7th Cir. 1980); Coyote v. Roberts, 502 F.Supp. 1342 (D.R.I.1980). In each of those decisions the award of attorneys’ fees was made under the substantive law involved (such as the Title VII provision) and not under the terms of Rule 68 itself. Thus Pigeaud has cited no authority concluding that by its own terms the Rule 68 “costs” provision includes attorneys’ fees. Given the universal American Rule that “costs” do not embrace attorneys’ fees" }, { "docid": "3645181", "title": "", "text": "that the plaintiff shall be treated as a prevailing party and that the “costs” component of the Rule 68 offer will include reasonable attorney’s fees. Id., at 363, 101 S.Ct. at 1155. Justice Powell reasons that because “costs” are no where defined in the Federal Rules of Civil Procedure, one must look to the fee provision of the Civil Rights Act, 42 U.S.C. § 1988, to determine the types of costs assessable under Rule 68. Since Section 1988 includes attorney’s fees “as a part of the costs,\" then, a Rule 68 offer of judgment providing for “costs then accrued” must be read to include “costs and attorney’s fees then accrued.” Justice Rehnquist, with whom the Chief Justice and Justice Stewart joined in dissent, disagree with Justice Powell. Id, at 375-380, 101 S.Ct. at 1161-1164. Relying upon Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980), they contend that “the ‘contemporaneous understanding’ of the term ‘costs’ when the Federal Rules of Civil Procedure were promulgated in 1938 did not include attorney’s fees.... ” Delta Air Lines, supra, 450 U.S. at 377, 101 S.Ct. at 1162. Similarly, they argue that the intent of the drafters, as well as the interests of public policy, dictate against construing Rule 68 to allow attorney’s fees to be recoverable as costs. Thus, they conclude that attorney’s “fees are just as susceptible to compromise and settlement as are other inchoate consequences of liability such as compensatory damages or backpay.” (footnote omitted) Id., at 378-79, 101 S.Ct. at 1163. Although there is no easy answer to the question whether, in a Rule 68 offer of judgment in a civil rights action, the phrase “with costs then accrued” includes attorney’s fees, we are inclined to agree with Justice Powell’s analysis. Other courts which have considered the issue are divided. Two District Courts have concluded that the only reasonable accommodation of Rule 68 and the fees provision of the underlying statutes involves treating an offer for “costs then accrued” as including attorney’s fees. See Waters v. Heublein, 485 F.Supp. 110 (N.D.Cal.1979); Scheriff v. Beck," }, { "docid": "23591706", "title": "", "text": "CLAIM UNDER RULE 68 Defendants contend that their pretrial offer of judgment under Rule 68 was at least as favorable as the judgment plaintiffs finally obtained. For that reason, they say the district court erred in disallowing their motion for post-offer costs including attorneys’ fees. In defendants’ view, Rule 68 entitles them to recover their own attorneys’ fees from plaintiffs, and bars plaintiffs from recovering their fees from defendants. At very least, say defendants, the latter is so — plaintiffs’ right, as the prevailing party, to recover fees is cut off by Rule 68. See Bitsouni v. Sheraton Hartford Corp., 52 U.S.L.W. 2354 (D.Conn. Nov. 23, 1983). In rejecting defendants’ post-trial motion for costs, including attorneys’ fees as a consequence of their earlier Rule 68 offer, the district court determined that the judgment finally obtained was more favorable than the offer. The court also held that attorneys’ fees were not “costs” within Fed.R.Civ.P. 68. Whether Congress meant attorneys’ fees to be recoverable costs under the rule is a question over which courts have differed but which may soon be resolved by the Supreme Court. Compare Fulps v. City of Springfield, 715 F.2d 1088 (6th Cir.1983) (attorneys’ fees included) with Chesny v. Marek, 720 F.2d 474 (7th Cir.1983) (fees not included), cert. granted, — U.S. —, 104 S.Ct. 2149, 80 L.Ed.2d 536 (1984), argued, 53 U.S.L.W. 3430 (Dec. 5, 1984) (No. 83-1437) and Pigeaud v. Maclaren, 699 F.2d 401 (7th Cir.1983) (same); compare Delta Air Lines, Inc. v. August, 450 U.S. 346, 376-79, 101 S.Ct. 1146, 1162-64, 67 L.Ed.2d 287 (1981) (Rehnquist, J., with whom Burger, C.J. and Stewart, J., joined dissenting) (fees not included) with id. at 362-63, 101 S.Ct. at 1155-56 (Powell, J., concurring) (fees included when underlying statute on which action is brought includes attorneys’ fees as costs). As the question of whether attorneys’ fees are costs within Rule 68 is now before the Supreme Court, we shall not presently review the district court's ruling that they are not costs. We focus instead on the district court’s determination that the judgment obtained was more favorable than the offer." }, { "docid": "13074834", "title": "", "text": "from the denial of attorney’s fees. We affirm. I First of all Pigeaud argues that he was entitled to attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976. While 42 U.S.C. § 1988 does permit the court in its discretion to allow “the prevailing party * * * a reasonable attorney’s fee as part of the costs,” Pigeaud cannot be considered a prevailing party because the second paragraph of the Offer of Judgment provided that nothing in the Offer “shall be construed as an admission of liability.” Moreover, Pigeaud established no success on the merits, so that he was not entitled to attorney’s fees under that provision. Hanrahan v. Hampton, 446 U.S. 754, 756-759, 100 S.Ct. 1987, 1988-1990, 64 L.Ed.2d 670; see Muscare v. Quinn, 680 F.2d 42, 44-45 (7th Cir.1982). Since Pigeaud received none of the relief sought in his complaint, he cannot recover attorney’s fees under Section 1988 Powe v. City of Chicago, 664 F.2d 639, 652 (7th Cir.1981). II Alternatively Pigeaud argues that he is entitled to attorney’s fees as part of his “costs” under Rule 68. But when the draftsmen of the Federal Rules of Civil Procedure wished to include attorney’s fees, they have been specifically mentioned. See, e.g., Rules 30(g), 37(a)(4), 37(d) and 56(g). Similarly, the definition of “costs” in Rule 54(d) does not include attorney’s fees. See 6 Moore’s Federal Practice, ¶¶ 54.70[1] and 54.77[2]; White v. New Hampshire Dept. of Employment Sec., 629 F.2d 697, 702-703 (1st Cir.1980), reversed on other grounds, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325. As Judge Shadur pointed out in his second opinion, Pigeaud was able to supply no cases awarding a prevailing party a reasonable attorney’s fee as part of the costs unless the defendant’s offer specifically included attorney’s fees or the governing statutes so provided. The district court also noted “the universal American Rule that ‘costs’ do not embrace attorneys’ fees unless expressly provided for * * *.” 92 F.R.D. at 757. Except for a quotation from Justice Powell’s separate “concurred in the result” opinion in Delta Air Lines, Inc. v." }, { "docid": "14690710", "title": "", "text": "Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981), where the defendant’s offer had specifically “include[d] attorney’s fees,” id. at 1148 n.2. Moreover Delta Air Lines was a Title VII ease, where the statute entitles a prevailing plaintiff to “a reasonable attorney’s fee as a part of the costs.” 42 U.S.C. § 2000e-5(k). Neither of those factors operates in Pigeaud’s favor here. Pigeaud advances several other cases as supporting the award of attorneys’ fees as a part of Rule 68 costs. Scheriff v. Beck, 452 F.Supp. 1254 (D.Colo.1978); Coop v. City of South Bend, 635 F.2d 652 (7th Cir. 1980); Coyote v. Roberts, 502 F.Supp. 1342 (D.R.I.1980). In each of those decisions the award of attorneys’ fees was made under the substantive law involved (such as the Title VII provision) and not under the terms of Rule 68 itself. Thus Pigeaud has cited no authority concluding that by its own terms the Rule 68 “costs” provision includes attorneys’ fees. Given the universal American Rule that “costs” do not embrace attorneys’ fees unless expressly provided for, this Court rejects Pigeaud’s construction of Rule 68. Alternatively Pigeaud urges that attorneys’ fees should be awarded under 42 U.S.C. § 1988: In any action ... to enforce a provision of [42 U.S.C. §§ 1983 or 1985] ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs. No such exercise of discretion is called for here, because Pigeaud is plainly not a “prevailing party” under Section 1988. He sought injunctive and declaratory relief and damages from the named defendants. By securing a Rule 68 judgment for $1.00 he did not obtain, in whole or in part, any of that relief. Moreover the judgment expressly disclaims any admission of liability on McLaren’s part. Even apart from Pigeaud’s failure to secure relief, he cannot be said to have won his battle from McLaren in any sense. In determining whether a plaintiff has “prevailed” for Section 1988 purposes where no decision on the merits has been rendered, the Court’s task is to determine" }, { "docid": "10499232", "title": "", "text": "a judgment in the amount of $50,-000.00 and his costs, including attorneys' fees and expenses.” Both parties rely on the Supreme Court’s decision in Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1984). In Marek, the Supreme Court reached two important conclusions concerning Rule 68. First, that “where the underlying statute defines ‘costs’ to include attorneys’ fees, ... such fees are to be included as costs for purposes of Rule 68.” Id. at 9, 105 S.Ct. at 3016. The present action duplicates Marek in that plaintiff sued under § 1983 and moved for fees pursuant to § 1988 which, as indicated, includes attorneys’ fees as costs. Although the plaintiff in Marek rejected defendants’ Offer of Judgment, the principle that costs, within the context of Rule 68 and § 1988, includes attorneys’ fees, remains directly apposite. Second, the Supreme Court rejected plaintiff’s argument that a valid Rule 68 offer had to itemize the amount tendered for settlement and the amount tendered for costs. Id. at 6, 105 S.Ct. at 3015. The Court reasoned that Rule 68’s express intention of encouraging complete settlement of litigation would be furthered by this construction. The Court wrote: If defendants are not allowed to make lump-sum offers that would, if accepted, represent their total liability, they would understandably be reluctant to make settlement offers. Id. at 6-7, 105 S.Ct. at 3015-3016; See Evans v. Jeff D., 475 U.S. 717, 733-744, 106 S.Ct. 1531, 1540-1546, 89 L.Ed.2d 747 (1985); (“To promote both settlement and civil rights, we implicitly acknowledge in Marek v. Chesny, the possibility of a tradeoff between merits relief and attorneys’ fees when we upheld the defendants’ lump sum offer_”). Importantly, the Court quoted the language of the Court of Appeals that “many a defendant would be unwilling to make a binding settlement offer on terms that left it exposed to liability for attorneys’ fees in whatever amount the court might fix on motion of the plaintiff.” Marek, 473 U.S. at 7, 105 S.Ct. at 3015; quoting Chesny v. Marek, 720 F.2d 474, 477 (7th Cir.1983). Plaintiff distinguishes Marek by arguing" }, { "docid": "21567096", "title": "", "text": "the awarding of attorneys’ fees to parties who prevail in the prosecution of certain civil rights.) Absent such explicit authorization, federal courts may exercise their inherent powers to tax attorneys’ fees only in the narrowly defined circumstances. Roadway Express v. Piper, 447 U.S. 752, 765, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980); Ray A. Scharer & Co. v. Plabell Rubber Prod., Inc., 858 F.2d 317, 320 (6th Cir.1988). The Court again addressed attorneys’ fees in Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985). There, the plaintiff brought an action against police officers, premised on 42 U.S.C. § 1983 and state tort law, for the shooting and killing of his son. The defendant made an offer of judgment pursuant to Fed.R.Civ.P. 68 of $100,000, including costs and attorneys’ fees, that was rejected. At trial, the plaintiff prevailed and was awarded $5,000 on the state law claim, $52,000 on the section 1983 claim, and $3,000 in punitive damages. He then moved for attorneys’ fees under 42 U.S.C. § 1988, including fees for work done subsequent to the petitioner’s settlement offer. The district court declined to award attorneys’ fees for work done after the defendant offered a settlement pursuant to the language in Fed.R.Civ.P. 68; viz., that if an offeree rejects a timely pretrial offer of settlement and later obtains a judgment for less than the offer, he must pay the costs incurred after the making of the offer. The Supreme Court affirmed, holding the word “costs” in Rule 68 was intended to refer to “all costs awardable under the relevant substantive statute,” and if the statute allows attorneys’ fees as costs, they are included as costs for Rule 68 purposes. Id. at 9, 105 S.Ct. at 3017. But see Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981) (the cost-shifting provision of Rule 68 applies only in cases where the offeree obtains a judgment less than the pretrial offer; where the offeree loses completely, cost-shifting is not permitted). As earlier indicated, in Crawford Fitting Co. v. J.T. Gibbons, Inc.," }, { "docid": "19078450", "title": "", "text": "within the parties’ contemplation before the bankruptcy plan was confirmed. First, the parties could not reasonably have expected that attorneys’ fees would be awarded to the prevailing party pursuant to Fed.R.Civ.P. 68 because that rule only provides for an award of costs and not for an award of attorneys’ fees. See Fed.R.Civ.P. 68 (“If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.”) (emphasis added). The Kentucky district court stated that it would look to the unsuccessful party to pay attorneys’ fees. However, the law is clear that the court does not have the power under Rule 68 to award attorneys’ fees and that each party is responsible for bearing its own attorneys’ fees. See Colombrito v. Kelly, 764 F.2d 122, 133 (2d Cir.1985). Also, Rule 68 applies only when offers are made by the defendant and a judgment is obtained by the plaintiff. See Delta Air Lines, Inc. v. August, 450 U.S. 346, 350, 101 S.Ct. 1146, 1149, 67 L.Ed.2d 287 (1981). Because the defendant obtained judgment in its favor, Rule 68 would be inapplicable to this case. Thus, based upon events prior to confirmation, it was unreasonable to believe that attorneys’ fees would be awarded in derogation of law. , Moreover, it is plain to us, as it was to Judge Wilhoit, that the parties never agreed to the offers and that no enforceable contract to pay attorneys’ fees was formed. The Kentucky district court rejected the offers as a basis for attorneys’ fees specifically stating that it would not rely on the offers because they were never accepted and therefore “no contract was created between the parties.” Big Yank Corp., No. 92-401, at 4. It was only on July 13, 1995, that the Kentucky district court, after finding that attorneys’ fees could not be awarded on the basis of contract, decided to award sanctions in the amount of Liberty’s attorneys’ fees against Big Yank for conducting the litigation in bad faith. We conclude from the record that the parties" }, { "docid": "18617865", "title": "", "text": "a judgment “awarded to” the plaintiffs; it is a judgment suffered by the plaintiffs. If this were the sort of “judgment” to which fees may be added, even a judgment in defendants’ favor after full deliberation would produce an award of fees to plaintiffs — for a judgment reading “Plaintiffs shall take nothing by their complaint” is still a judgment. Cf. Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983) (a “success” requirement is read into attorneys’ fees statutes that are silent on the subject). And if we understand the judgment here as equivalent to “plaintiffs prevailed out of court and so recover nothing in court”, then Delta Air Lines, Inc. v. August, 460 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981), makes it doubtful that we could call such an order a “judgment awarded to the plaintiff’ for purposes of fees and costs. A rule of civil procedure permits either party to make an offer of judgment and provides that “[i]f the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.” Fed.R.Civ.P. 68. A defendant offered $450; the plaintiff went to trial and recovered nothing; Delta Air Lines held that a complete lack of success did not require the offeree to pay the other side’s costs. Only a positive award to the offeree permits cost shifting under Rule 68, the Court concluded, because only a decision favorable in some respect is a judgment “obtained by” the plaintiff. By a similar approach, only concrete relief is a “judgment awarded to the plaintiff’ that permits fee shifting under § 201(c). Plaintiffs offer a different way to read “in addition to any judgment”. They deemphasize “judgment” and stress “in addition to”. Then § 201(c) means that the award of fees comes on top o/the stakes of the litigation, rather than out of the recovery. Other titles of the LMRDA provide for monetary and equitable relief but do not contain any provision respecting attorneys’ fees. Hall v. Cole, 412 U.S." }, { "docid": "21567097", "title": "", "text": "for work done subsequent to the petitioner’s settlement offer. The district court declined to award attorneys’ fees for work done after the defendant offered a settlement pursuant to the language in Fed.R.Civ.P. 68; viz., that if an offeree rejects a timely pretrial offer of settlement and later obtains a judgment for less than the offer, he must pay the costs incurred after the making of the offer. The Supreme Court affirmed, holding the word “costs” in Rule 68 was intended to refer to “all costs awardable under the relevant substantive statute,” and if the statute allows attorneys’ fees as costs, they are included as costs for Rule 68 purposes. Id. at 9, 105 S.Ct. at 3017. But see Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981) (the cost-shifting provision of Rule 68 applies only in cases where the offeree obtains a judgment less than the pretrial offer; where the offeree loses completely, cost-shifting is not permitted). As earlier indicated, in Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987), the issue before the Court was whether federal courts could require losing parties to pay compensation for the prevailing party’s expert witness fees in excess of the $30.00 per day provided for in 28 U.S.C. § 1821. The Court held the district court had no such power. Id. 107 S.Ct. at 2499. The Court noted that “Title 28 U.S.C. § 1920 now embodies Congress’ considered choice as to the kinds of expenses that a federal court may tax as costs against the losing party,” id. at 2496, and that “the comprehensive scope” of the 1853 Fee Act and the faithfulness with which Congress has followed it demonstrated to the Court “that Congress meant to impose rigid controls on cost-shifting in federal courts.” Id. at 2499. The Court went on to hold that to read Fed.R.Civ.P. 54(d) as “a separate source of power authorizing district courts to tax costs and expenses not enumerated in [28 U.S.C.] § 1920” rendered that section superfluous, in that courts could" }, { "docid": "22139747", "title": "", "text": "of judgment pursuant to Rule 68 which would have permitted plaintiff to take judgment against defendant for $750.00. Plaintiff rejected this offer and the case proceeded to trial on April 23, 1987. After completion of the trial, the District Court held that plaintiff had failed to prove all but one of her claims — that she was discriminatorily excluded from nurses’ meetings in violation of section 1981. It awarded her nominal damages in the amount of $100.00 for the section 1981 violation. Both plaintiff and defendant requested attorney’s fees under section 1988. At a hearing on August 12, 1987 the District Court denied both requests. Defendant then moved for the award of costs pursuant to Rule 68. Rule 68 provides that after an offer of judgment is made and refused “the offeree must pay the costs incurred after the making of the offer” if the offeree obtains a final judgment less favorable than the offer. See Fed.R.Civ.P. 68. Costs in a civil rights case include any award of attorney’s fees. Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985). The District Court, applying Rule 68, “very reluctantly” held that defendant was entitled to attorney’s fees as part of costs under Rule 68 but declined to make a specific award pending a hearing. On September 1, 1987 the District Court conducted a telephone conference between counsel for the parties. During this conference the District Judge sua sponte vacated the award of nominal damages to plaintiff on her section 1981 claim. In a subsequent written opinion the District Court justified its oral ruling based upon Rule 60(b)(6) and entered judgment in favor of defendant on all claims — including the section 1981 claim for which it had previously awarded nominal damages. The District Court then denied defendant’s motion for costs under Rule 68 because the rule is applicable only when the plaintiff obtains a judgment less favorable than the offer and not when the plaintiff obtains no judgment at all. See Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981). In" }, { "docid": "13074835", "title": "", "text": "as part of his “costs” under Rule 68. But when the draftsmen of the Federal Rules of Civil Procedure wished to include attorney’s fees, they have been specifically mentioned. See, e.g., Rules 30(g), 37(a)(4), 37(d) and 56(g). Similarly, the definition of “costs” in Rule 54(d) does not include attorney’s fees. See 6 Moore’s Federal Practice, ¶¶ 54.70[1] and 54.77[2]; White v. New Hampshire Dept. of Employment Sec., 629 F.2d 697, 702-703 (1st Cir.1980), reversed on other grounds, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325. As Judge Shadur pointed out in his second opinion, Pigeaud was able to supply no cases awarding a prevailing party a reasonable attorney’s fee as part of the costs unless the defendant’s offer specifically included attorney’s fees or the governing statutes so provided. The district court also noted “the universal American Rule that ‘costs’ do not embrace attorneys’ fees unless expressly provided for * * *.” 92 F.R.D. at 757. Except for a quotation from Justice Powell’s separate “concurred in the result” opinion in Delta Air Lines, Inc. v. August, 450 U.S. 346, 363, 101 S.Ct. 1146, 1155, 67 L.Ed.2d 287, plaintiff has unearthed no truly supporting authorities. Since Justice Powell was alone in his view that Rule 68’s reference to costs includes a reasonable attorney fee, his view is not controlling. If Pigeaud had wished to obtain reasonable attorney’s fees before accepting the Offer of Judgment, he should have insisted that McLaren so provide in the Offer instead of unconditionally accepting the Offer whose text referred only to “costs and expenses provided for” in Rule 68. In Cruz v. Pacific American Insurance Corp., 337 F.2d 746 (9th Cir.1964), an offer of judgment was made by a defendant pursuant to Rule 68 offering to allow judgment to be taken against it for a certain amount “and for the necessary costs expended in this action by the plaintiffs.” The court noted that, as here, the offer of judgment did not refer to attorney’s fees and therefore required the trial judge to deny plaintiff attorney’s fees while awarding $37 costs. Similarly, in Gamlen Chemical Co. v." }, { "docid": "13490481", "title": "", "text": "incurs after making the offer if the plaintiffs judgment is less favorable than the offer. See Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075 (7th Cir. 1999). We review the district court’s underlying factual findings for clear error, but to the extent a party’s entitlement to costs rests on an interpretation of Rule 68, we review the district court’s legal conclusions de novo. See id. Although Rule 68 by its terms only applies to costs, the Supreme Court has held that attorney’s fees are included within the definition of “costs” for purposes of Rule 68 when the underlying statute includes attorney’s fees in its definition of costs. See Marek, 473 U.S. at 9, 105 S.Ct. 3012. Section 505 of the Copyright Act defines costs to include attorney’s fees, but only the prevailing party is entitled to their award. See 17 U.S.C. § 505 (“Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.”). This appeal thus asks us to determine whether Arnell must be a prevailing party under the Copyright Act in order to recover attorney’s fees pursuant to Rule 68. Courts that have addressed whether a non-prevailing party can nevertheless obtain attorney’s fees under Rule 68 have expressed differing views. In Crossman v. Marcoccio, 806 F.2d 329 (1st Cir.1986), cert. denied, 481 U.S. 1029, 107 S.Ct. 1955, 95 L.Ed.2d 527 (1987), the First Circuit held that a losing defendant could not recover post-offer attorney’s fees because it was not the prevailing party. See Crossman, 806 F.2d at 334. (“Although appellants’ attorney’s fees were ‘properly awardable’ costs under section 1988, appel-lees’ attorney’s fees were not. The statute awards costs only to a ‘prevailing party.’ ”) (emphasis in original); see also O’Brien v. City of Greers Ferry, 873 F.2d 1115, 1120 (8th Cir.1989). The First Circuit in Crossman rejected the same argument that Arnell makes here, explaining that the effort to dismiss the “prevailing party” language in Marek distorts the law governing the relationship between Rule 68 and [the substantive statute] by ignoring the two" } ]

[ { "docid": "7336291", "title": "", "text": "Retail Credit Co., 420 F.Supp. 859, 863 (W.D.Pa.1976). In this case, the consent of Defendant Todd was not conveyed to the court in any manner within thirty days of service upon him. His filing of an answer in this court on January 28 is not significant, since the answer was not only silent as to removal but also fell outside the thirty day period. Todd neither joined the other Defendants’ petition nor officially filed or voiced his consent to it within the statutory period. The alleged fact that Todd informed the other Defendants of his consent is insufficient to constitute a joinder under the statute. Godman v. Sears, Roebuck and Co., 588 F.Supp. 121, 124 (E.D.Mich.1984); Mason v. International Business Machines, Inc., 543 F.Supp. 444, 445 (M.D.N. C.1982). Because removal is a purely statutory right, removal statutes should be strictly construed in favor of state court jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-9, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Rembrant, Inc. v. Phillips Const. Co., Inc., 500 F.Supp. 766, 768 (S.D.Ga.1980). The court therefore finds that Defendants have failed to meet the thirty day requirement of 28 U.S.C. § 1446(b). The time limitation for removal is not jurisdictional, however, and may be waived. Harris v. Edward Hyman Co., 664 F.2d 943, 945 (5th Cir.1981); Weeks v. Fidelity and Casualty Co., 218 F.2d 503, 504 (5th Cir.1955). Several courts have held that a waiver will be found only when there is “affirmative conduct or unequivocal assent of a sort which would render it offensive to fundamental principles to remand.” Feller v. National Enquirer, 555 F.Supp. 1114, 1121 (N.D.Ohio 1983), quoting Maybruck v. Haim, 290 F.Supp. 721, 724 (S.D.N.Y.1968). See also Godman, 588 F.Supp. at 124. Examples of such conduct include unsuccessfully litigating a substantial issue in the case, or filing an amended complaint seeking further or different relief. Id. at 124; Maybruck, 290 F.Supp. at 724. In Harris, supra, the Court of Appeals for the Fifth Circuit held that “a party who delays in seeking a remand, or otherwise participates in the proceedings in" } ]

[ { "docid": "1683919", "title": "", "text": "defendants filed any papers in this Court indicating their consent to the removal. In fact, as noted above, none of the defendants have filed a notice of appearance with the Court. After filing his opposition papers, Boyd moved for a stay of the Court’s ruling on Codapro’s motion to remand and for an order granting discovery limited to the circumstances surrounding Edel’s affidavit which, Boyd contends, was “probably” the result of Codapro’s “coercion.” II. DISCUSSION A. Remand Removing a case from state to federal court pursuant to 28 U.S.C. § 1446, defendants are required to file the notice of removal “within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b). “Subsection 1447(c) authorizes a remand on the basis of any defect in removal procedure or because the district court lacks subject matter jurisdiction,” LaFarge Coppee v. Venezolana De Cementos; S.A.C.A., 81 F.3d 70, 72 (2d Cir.1994) (internal quotations and citations omitted). “There are several well-established principles governing the propriety of removal petitions under Section 1446, which the court must keep in mind here.” Town of Moreau, et al. v. State Dept. of Environmental Conservation, et al., 96 Civ. 983, 1997 WL 243258, at *1 (N.D.N.Y.1997) (internal quotations and citation omitted). First, “[r]emoval jurisdiction must be strictly construed, both because the federal courts are courts of limited jurisdiction and because removal of a case implicates significant federalism concerns.” In re NASDAQ Market Makers Antitrust Litigation, 929 F.Supp. 174, 178 (S.D.N.Y.1996) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109, 61 S.Ct. 868, 872, 85 L.Ed. 1214) (“Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined,”); State of New York v. Lutheran Center for the Aging, Inc., 957 F.Supp. 393, (E.D.N.Y.1997) (“Removal statutes are to be strictly construed])]”). Thus, “all doubts should be resolved in favor of remand.” Leslie" }, { "docid": "19912166", "title": "", "text": "jurisdiction when: (1) it filed its June 23, 2006 complaint; and (2) after filing its motion to remand it requested that the Court grant a temporary restraining order. Alternatively, defendants argue plaintiff is judicially es-topped from objecting to removal because it has taken inconsistent positions and it has engaged in blatant forum shopping. Finally, defendants argue plaintiff is not entitled to an award of attorneys’ fees because removal was substantially justified and not contrary to settled law. A. Plaintiffs motion to remand Generally, removal is appropriate only if a federal district court has original jurisdiction over the action. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993)(citing 28 U.S.C. § 1441). The party seeking removal bears the burden of establishing federal jurisdiction and removal statutes are narrowly construed. Id. (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921); Illinois v. Kerr-McGee Chem. Corp., 677 F.2d 571, 576 (7th Cir.1982), cert. denied, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618). Additionally, any doubt regarding jurisdiction should be resolved in favor of the states. Id. (citing Jones v. Gen. Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976)). Accordingly, as a preliminary matter, the Court must address whether it has original jurisdiction over this action. Federal courts are courts of limited jurisdiction. They can adjudicate only those cases that the Constitution and Congress authorize them to adjudicate which generally are those in which: (1) the United States is a party, (2) a federal question is involved; or (3) diversity of citizenship exists. See Allstate Life Ins. Co. v. Hanson, 200 F.Supp.2d 1012, 1014 (E.D.Wis.2002) (iciting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). The United States is not a party to this action. Additionally, it is undisputed that this action does not involve a federal question. Accordingly, the Court has original jurisdiction over this action only if diversity of citizenship exists. Id. For jurisdictional purposes, plaintiff is a Delaware corporation with its principal place of business in the State of Minnesota." }, { "docid": "913648", "title": "", "text": "filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based ... “If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable ...” All named defendants must consent to or join the petition for removal. Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen and Assistants’ Local 349, 427 F.2d 325, 326-27 (5th Cir.1970); Clyde v. Nat’l Data Corp., 609 F.Supp. 216, 218 (N.D.Ga.1985) (Evans, J.). Defendants must express this unanimity to the court within the thirty day period. See, e.g., Harris v. Edward Hyman Co., 664 F.2d 943, 945 (5th Cir.1981), reh’g denied, 669 F.2d 733 (5th Cir.1982) (defendants must “manifest” consent within thirty days); Clyde, 609 F.Supp. at 218. Removal is a purely statutory right. Accordingly, a court should strictly construe removal statutes in favor of state court jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Clyde, 609 F.Supp. at 219. B. Application 1. Removability Plaintiffs’ initial pleading did not indicate Plaintiffs’ state of residency. As a result of this oversight, Defendants argue that they could not ascertain whether Plaintiffs’ action was removable until the initial interrogatories were answered. Plaintiffs contend that, under section 1446(b), the initial complaint was sufficient to determine the existence of federal diversity jurisdiction. The initial pleading must provide a clear statement of the case that will allow the defendant to examine the basis for the action. In particular, the defendant must be able to “intelligently ascertain removability from [the] face” of the initial pleading. Perimeter Lighting, Inc. v. Karlton, 456 F.Supp. 355, 358 (N.D.Ga.1978) (O’Kelley, J.) When the initial pleading provides at least a clue as to the plaintiffs" }, { "docid": "7341609", "title": "", "text": "thus a non-diverse defendant in the suit. Beech, a Kansas corporation, then remained the only party defendant not dismissed or released from the suit. On November 3, 1986, Beech filed an ex parte motion in state court to dismiss A.R. Mills from the suit. Attached to the motion was a copy of the plaintiff's receipt and release of A.R. Mills. The state court denied Beech’s motion for lack of standing. On March 26, 1987, Beech was specifically advised in a conference with plaintiff’s counsel that the omission of A.R. Mills’ name from the motion and judgment of dismissal was inadvertent. Defendant petitioned this court for removal on April 24, 1987. The time and manner for removing an action which becomes removable after its original filing is set forth in 28 U.S.C. § 1446(b): If the case stated by the initial pleading is not removable, a petition for removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has become removable. It is well settled that the removal statutes must be strictly construed. A federal court may encroach upon a state court’s right to hear and determine cases properly brought in a state forum only pursuant to the express authority granted by Congress. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). The thirty day limitation mandated by § 1446(b) has a dual purpose. On the one hand it forecloses a defendant from adopting a wait and see approach in the state court. See Wilson v. Intercollegiate (Big Ten) Conference Athletic Association, 668 F.2d 962, 965 (7th Cir.1982). On the second hand, the statutory requirement minimizes the delay and waste of resources involved in federal court after substantial proceedings have taken place in state court. Id. Gorman v. Abbott Laboratories, 629 F.Supp. 1196, 1199 (D.R.I.1986). A federal district court does not have authority to enlarge or extend this" }, { "docid": "8316587", "title": "", "text": "too much. While the language of the statute does suggest a single national standard based upon notice, the congressional reports accompanying the 1949 amendment do not say that state service rules are irrelevant in determining commencement of the removal period. See 1949 U.S.Code Cong.Serv. at 1253-54 (S.Rep. No. 303), 1268 (H.R.Rep. No. 352); cf. Potter v. McCauley, 186 F.Supp. 146, 149 (D.C.Md.1960) (discussing operation of statute in four situations under Love approach). Rather, they simply express congressional desire to correct the problems that arose under the 1948 removal statute and repeat, more or less, the provision of the statute. This ambiguity in (or, perhaps more accurately, absence of) legislative history does not compel rejection of the Tyler position. It is well-established that removal statutes are to be construed narrowly and against removal. Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571, 576 (7th Cir.1982). See Tyler, 524 F.Supp. at 1213. This principle — when considered in light of the straightforward, unambiguous language of the statute and the absence or ambivalence of any congressional intent on the issue — presents the second and stronger argument in support of the Tyler holding. It also persuades this court that the plain meaning of the statute should be accepted as its legal meaning. Cf. Love, 542 F.Supp. at 67 (“Plaintiffs’ argument ... is based directly on the language of the section 1446(a) [sic]. On the surface, there is much to recommend this argument.”) I hold, therefore, that receipt of an initial pleading by the defendant, irrespective of the technicalities of state service of process law, begins the thirty-day countdown during which a removal petition must be filed. With this standard established, the motion before the court is easily decided. The defendant’s affidavit states that he returned home on March 10, 1986,- to find a complaint and attached summons under his apartment door. See Mem. in Support of Motion to Remand, Ex. A at 113. His motion to quash service in the state court, which was never ruled on," }, { "docid": "14853529", "title": "", "text": "for timely filing a notice of removal “is not jurisdictional, but it is mandatory and must be strictly applied.” Shadley v. Miller, 733 F.Supp. 54, 55 (E.D.Mich.1990); Pillin’s Place, Inc. v. Bank One, Akron, N.A., 771 F.Supp. 205, 206 (N.D.Ohio 1991); Northern Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270, 273 (7th Cir.1982). Untimeliness is a ground for remand so long as the timeliness defect has not been waived. Id. Plaintiff Kerr maintains that the plain language of the statute requires that the thirty-day period begin to run upon the defendant’s receipt of a copy of the complaint, regardless of whether the defendant has been formally served. Hence Kerr argues that in this case Holland’s removal was untimely as it came 80 days after its receipt of the Complaint. Holland disputes this interpretation of § 1446(b), arguing that the thirty-day period does not commence until the defendant has received a copy of the Complaint and been properly served. Thus Holland believes its removal was timely as it came 28 days after it was formally served. The issue presented by Kerr’s Motion to Remand is one which has divided federal district courts for over thirty years, and the positions taken by Holland and Kerr respectively reflect one of the two distinct lines of cases developed over the years. Like Defendant Holland, several district courts — principally district courts in the Fifth and Eleventh circuits and in Puerto Rico, and some district courts in California — have followed the position articulated in Love v. State Farm Mutual Auto. Ins. Co., 542 F.Supp. 65 (N.D.Ga.1982), that only perfected service of process, not receipt of a courtesy copy of an unserved complaint, triggers § 1446(b)’s thirty-day removal period. See, Marion Corp. v. Lloyds Bank, PLC, 738 F.Supp. 1377 (S.D.Ala.1990); Bennett v. Allstate Ins. Co., 753 F.Supp. 299 (N.D.Cal.1990); Goodyear Tire and Rubber Co. v. Fuji Photo Film Co., 645 F.Supp. 37 (S.D.Fla.1986); Hunter v. American Express Travel Related Services, 643 F.Supp. 168 (S.D.Miss.1986); Thomason v. Republic Ins. Co., 630 F.Supp. 331 (E.D.Cal.1986); Gibbs v. Paley, 354 F.Supp. 270 (D.P.R.1973). These cases hold" }, { "docid": "8537981", "title": "", "text": "local rule. On April 8, 1997, defendant Linda Moore filed a consent to removal of the case. Also on April 8, Linda and Eric Moore filed copies of the state court proceedings. II. Procedural Deficiencies Because federal courts are courts of limited jurisdiction, there is a presumption against federal jurisdiction, and the party invoking such jurisdiction bears the burden of proof. Penteco Corp. Ltd. Partnership-1985A v. Union Gas Sys., 929 F.2d 1519, 1521 (10th Cir.1991); Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). “Removal statutes are to be strictly construed, and all doubts are to be resolved against removal.” Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.1982) (citation omitted). A. Timeliness of Removal Plaintiffs assert that the notice of removal, filed March 7, 1997, was untimely. The procedure for removal is governed by 28 U.S.C. § 1446, which states in part: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.... 28 U.S.C. § 1446(b). Plaintiffs have provided a copy of a letter from Eric Moore to a bank president that refers to the petition filed by plaintiffs in October of 1996 and gives the case number assigned to the petition; the letter is dated November 21, 1996, more than thirty days before Mr. Moore’s notice of removal. This argument is countered by affidavits by Linda and Eric Moore. According to the affidavits, Linda Moore, Eric’s mother, wrote the November 21 letter; she signed Eric Moore’s name to the letter because they “had determined that Eric alone should communicate with [the bank] due to his background in and knowledge of banking.” The affidavits state that, although Linda Moore received a copy of the petition in “late 1996”, Eric Moore never received or viewed a copy of the petition before February 18, 1997, when counsel entered an appearance on behalf of the Moores. The Moores" }, { "docid": "21842521", "title": "", "text": "1673, 128 L.Ed.2d 391(1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994). For this reason, statutes authorizing removal of actions to federal courts are to be strictly construed against removal. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Burns, 31 F.3d at 1094 (“[RJemoval statutes are construed narrowly; where the plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand.”). In fact, because “[fjederal courts are of limited jurisdiction[,] ... there is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand.” Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir.2001) (internal citations and quotations omitted). It is well established that a removing party must present facts establishing its right to remove. See Perez v. AT & T Co., 139 F.3d 1368, 1373 (11th Cir.1998); see also Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir.1996). When the defendant fails to do so, remand is favored. Nevertheless, a federal court should “be cautious about remand, lest it erroneously deprive [a] defendant of the right to a federal forum.” 14A Charles Wright, Arthur Miller & Edward H. Cooper, Federal Practice and Procedure, § 3721 at 218-19 (2d ed. 1985) (“Wright & Miller”). V. LEGAL ANALYSIS A. TIMELINESS Title 28 U.S.C. § 1446(b) provides, in relevant part: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. 28 U.S.C. § 1446(b). Pursuant to this limitations period, if the thirty day clock began to run on the date Hi Performance was served, then the Notice of Removal was untimely. Conversely, if the thirty period commenced on the date S.B. Trucking and Jackson were served, the Notice of Removal was timely. The courts that have considered the timeliness issue in" }, { "docid": "8968353", "title": "", "text": "of cases require only receipt of the complaint and give the “or otherwise” language a common sense reading. Again, the pertinent language reads as follows: “The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based ...” 28 U.S.C. § 1446(b) (emphasis added). Several arguments can be made in support of reading this language to start the removal period upon receipt of the complaint. First, the plain language of the statute shows that formal service is not required, and we are not to read more into statutes than is clear on the face. See INS v. Cardozar-Fonseca, 480 U.S. 421, 431-32, 107 S.Ct. 1207, 1213, 94 L.Ed.2d 434 (1987); INS v. Phinpathya, 464 U.S. 183, 189, 104 S.Ct. 584, 589, 78 L.Ed.2d 401 (1984); American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982). The plain language of Section 1446(b) indicates that the 30 day removal period begins when the defendant receives a copy of the complaint. As Judge Ingram concluded: “This court ... remains convinced that ‘receipt by defendant, through service or otherwise’ means ‘receipt by defendant, through service or otherwise.’ ” Silverwood, 793 F.Supp. at 228. We are equally convinced that reading the plain language of the statute in this manner is most appropriate. Second, requiring perfected service would run contrary to our instruction from the Ninth Circuit and the Supreme Court “that removal statutes are strictly construed against removal.” Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.1979), citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). Third, Congress’ purpose in enacting the removal statute, as noted earlier, was to establish a uniform federal system of removal. If the statute is read literally so that actual receipt of the complaint triggers the removal period, uniformity will be achieved. See Schwartz Brothers, Inc." }, { "docid": "19356302", "title": "", "text": "that [t]he notice of removal ... shall be filed within thirty days after the receipt by the defendant, through sendee or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based ... 28 U.S.C. § 1446(b) (emphasis added). Although many courts have held that the 30-day removal period commences upon perfection of service, the better rule is that the 30-day period commences upon receipt of an initial pleading providing notice that the action is removable. See, e.g., Roe v. O’Donohue, 38 F.3d 298 (7th Cir.1994); Tech Hills II Associates v. Phoenix Home Life Mutual Ins. Co., 5 F.3d 963 (6th Cir.1993); Weimer v. City of Johnstown, N.Y., 931 F.Supp. 985 (N.D.N.Y.1996); Mermelstein v. Maki, 830 F.Supp. 180 (S.D.N.Y.1993); Figueroa v. Kim, 813 F.Supp. 267 (S.D.N.Y.1993). Although many of these decisions state that the division between advocates of the service and the receipt rules is fairly equal, see, e.g., Figueroa, 813 F.Supp. at 268, the only appellate courts that have construed the statute have adopted the receipt rule and have not required proper service. As the Roe court stated, [accordingly, we hold that the 30 days commences when the defendant, or its authorized agent, comes into possession of a copy of the complaint whether or not the delivery complies with the requirements of “service.” 38 F.3d at 304. The focus of the statute is clearly “to enable the defendant to intelligently ascertain removeability from the face of [the] initial pleading.” Ardison v. Villa, 248 F.2d 226, 227 (10th Cir.1957). The conclusion, that receipt and not service, triggers the thirty day clock, is consonant with the focus on ascertainment of removeability and makes sense of the “or otherwise” language of 28 U.S.C. § 1447(a). Moreover, as the Figueroa court put it, it is “buttressed by the well-established rule that removal statutes are to be construed strictly and against removal.” 813 F.Supp. at 268 (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941)). B. Was Life Fitness Served with an" }, { "docid": "13392513", "title": "", "text": "regarding the propriety of removal are resolved in favor of remand and state court jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, supra; Clyde v. National Data Corp., 609 F.Supp. 216 (N.D.Ga.1985). This overarching principle guides the Court in construing the disputed “service or otherwise” language in 28 U.S.C. § 1446, as does the plain language of the statute. II. The Timeliness Challenge: What Does “Service or Otherwise” Mean? At the outset, it seems useful to state the obvious: The statute should be taken to mean what it says. As noted earlier, 28 U.S.C. § 1446 provides that the thirty day removal period begins “after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based....” A conflict exists in the case literature, and between the parties now before this Court, over when the removal period is triggered for a defendant who receives a copy of the initial pleading before a technically valid service of process is made. One line of cases interprets the “or otherwise” language to mean that some receipt of the initial pleading alone triggers the start of the thirty day period. Tyler v. Prudential Ins. Co. of Am., 524 F.Supp. 1211 (W.D.Pa.1981). The other line of cases interprets the same language to require proper service of process to trigger the removal period. Love v. State Farm Mut. Auto Ins. Co., 542 F.Supp. 65 (N.D.Ga.1982). A. The “Proper Service” Rule In Love v. State Farm Mutual Auto Ins. Co., 542 F.Supp. 65 (N.D.Ga.1982), the court held that the statutory removal period did not commence when the defendant received a courtesy copy of an unserved complaint. Rather, the court said, the removal period commences only when the defendant has been properly served pursuant to state law and has also received a copy of the complaint “through service or otherwise.” This “proper service” rule has since been followed in other cases where courts held that defective service did not trigger the thirty day period for filing a removal petition. See, e.g.," }, { "docid": "14853528", "title": "", "text": "general principle, the removal statutes are to be construed narrowly. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). Further, “[t]he party seeking removal bears the burden of establishing its right thereto.” Her Majesty the Queen in Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th Cir.1989). 28 U.S.C. § 1446(b) sets forth the time requirements for removal of cases to federal district courts. It provides, in pertinent part: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not re quired to be served on the defendant, whichever period is shorter. (Emphasis added.) Section 1446’s time requirement for timely filing a notice of removal “is not jurisdictional, but it is mandatory and must be strictly applied.” Shadley v. Miller, 733 F.Supp. 54, 55 (E.D.Mich.1990); Pillin’s Place, Inc. v. Bank One, Akron, N.A., 771 F.Supp. 205, 206 (N.D.Ohio 1991); Northern Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270, 273 (7th Cir.1982). Untimeliness is a ground for remand so long as the timeliness defect has not been waived. Id. Plaintiff Kerr maintains that the plain language of the statute requires that the thirty-day period begin to run upon the defendant’s receipt of a copy of the complaint, regardless of whether the defendant has been formally served. Hence Kerr argues that in this case Holland’s removal was untimely as it came 80 days after its receipt of the Complaint. Holland disputes this interpretation of § 1446(b), arguing that the thirty-day period does not commence until the defendant has received a copy of the Complaint and been properly served. Thus Holland believes its removal was timely as it came 28 days after it was" }, { "docid": "13392512", "title": "", "text": "a proper respect to the role of state courts in our federal structure, has further instructed that federal courts are to construe the statute against removal and in favor of remand to state court. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). See also, Abels v. State Farm Fire & Cas. Co., 770 F.2d 26 (3d Cir.1985); Takeda v. Northwestern Nat. Life Ins. Co., 765 F.2d 815 (9th Cir.1985); Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331 (10th Cir.1982); Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571 (7th Cir.1982) cert. denied, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618 (1982); Wilson v. U.S. Dept. of Agriculture, 584 F.2d 137 (6th Cir.1978); Skidmore v. Beech Aircraft Corp., 672 F.Supp. 923 (M.D.La.1987). Federal courts, then, should be vigilant to possible settings which might result in the diminishment of state jurisdiction, and we should respect, when appropriate, plaintiffs choice of forum. See also, Smith v. Executive Fund Life Ins. Co., 651 F.Supp. 269 (M.D.La.1986). Thus, any doubts regarding the propriety of removal are resolved in favor of remand and state court jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, supra; Clyde v. National Data Corp., 609 F.Supp. 216 (N.D.Ga.1985). This overarching principle guides the Court in construing the disputed “service or otherwise” language in 28 U.S.C. § 1446, as does the plain language of the statute. II. The Timeliness Challenge: What Does “Service or Otherwise” Mean? At the outset, it seems useful to state the obvious: The statute should be taken to mean what it says. As noted earlier, 28 U.S.C. § 1446 provides that the thirty day removal period begins “after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based....” A conflict exists in the case literature, and between the parties now before this Court, over when the removal period is triggered for a defendant who receives a copy of the initial pleading before a technically valid service of process is" }, { "docid": "13750031", "title": "", "text": "1446(b), provides: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.... The Ninth Circuit has not yet adopted a position as to when the thirty-day period in section 1446(b) begins to run. There are two positions, and the courts are split. The first position states that the thirty-day period begins only after the defendant receives a copy of the complaint through proper service. Love v. State Farm Mutual Auto Ins. Co., 542 F.Supp. 65 (N.D.Ga.1982). This view is based on the Love court’s understanding of the legislative history of section 1446(b) and the purpose of amending its language to include “or otherwise” when referring to the method of delivery. According to Thomason v. Republic Ins. Co., 630 F.Supp. 331, 333 (E.D.Cal.1986), the change, made in 1949, was meant to expand the removal period in states that allowed a plaintiff to commence a suit without filing a complaint. The Love case held that the “or otherwise” language allowed the thirty-day period to begin in such states whenever the initial pleading was received by the defendant. In all other states, proper service is required to trigger the thirty-day period. The second view states that receipt of the initial pleading will trigger the thirty-day period, provided that the pleading contains sufficient information from which the defendant can ascertain that the action is removable. Tyler v. Prudential Ins. Co., 524 F.Supp. 1211 (W.D.Pa.1981). This view relies on the rule that removal statutes are to be construed strictly and against removal. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-9, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.1979). Following Tyler, the court in Pic-Mount Corp. v. Stoffel Seals Corp., 708 F.Supp. 1113, 1118 (D.Nev.1989), held that the thirty-day removal period begins upon defendant’s receipt of the initial pleadings, irrespective of the technicalities of" }, { "docid": "15494732", "title": "", "text": "of a removable action. Defendants’ Brief at 9-13. The Moving Defendants also contend that a stay of proceedings does not toll the running of the limitations period. Id. at 10-13. a. Removal Under 28 U.S.C. § Under the general federal removal statutes, an action brought in state court can be removed by defendants to the federal district court encompassing the state court if that federal district court would have had original jurisdiction. 28 U.S.C. § 1441(a). A defendant seeking to remove a case must file “a notice of removal ... containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served....” 28 U.S.C. § 1446(a). Section 1446 provides a thirty day limitations period for removal. 28 U.S.C. § 1446(b). The notice of removal must be filed within thirty days after receipt by service of process or otherwise of the initial pleading setting forth the basis for removal. Id. If the initial pleading does not reveal a basis for removal, then the notice of removal may be filed within thirty days of receipt by any means , of an amended pleading, motion, order or other paper which indicates the case is removable. Id. The thirty day limitation is mandatory and cannot be extended by the court. Balestrieri v. Bell Asbestos Mines, Ltd., 544 F.Supp. 528, 529 (E.D.Pa.1982); Typh, Inc. v. Typhoon Fence of Penn., Inc., 461 F.Supp. 994, 996 (E.D.Pa.1978); see also Northern III. Gas Co. v. Aireo Indus. Gases Div. of Airco Inc., 676 F.2d 270, 273 (7th Cir.1982); Courtney v. Benedetto, 627 F.Supp. 523 (M.D.La.1986). Moreover, the thirty day period does not commence running from when the party seeking removal has actual knowledge of the propriety of removal; all that is required is the receipt of a paper indicating removal is proper. Rowe v. Marder, 750 F.Supp. 718, 721 (W.D.Pa.1990). Consequently, the party seeking removal cannot attempt to excuse an untimely filing of the notice of removal by claiming that he did not read the paper or that the paper was somehow incomplete. Id. A case may be" }, { "docid": "22268698", "title": "", "text": "After simply assuming jurisdiction, the district court proceeded to dismiss Doe’s suit against Allied as a rehash of Doe I and sent the claim against Acme back to state court. The court’s resolution of Doe II was mistaken. A federal court may remove to its jurisdiction a civil suit filed in state court so long as the district court has original jurisdiction. 28 U.S.C. § 1441. Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum. Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571, 576 (7th Cir.1982), certiorari denied, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618. Any doubt regarding jurisdiction should be resolved in favor of the states. Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976), and the burden of establishing federal jurisdiction falls on the party seeking removal. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921). One measure of the limited scope of the removal power is the well-established doctrine that a case may not be heard in district court when the only federal question posed is raised by a defense argument, even if the plaintiff anticipated the defense argument and even if both parties concede the federal question is the only real issue in the case. Caterpillar, Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 2430, 96 L.Ed.2d 318 (1987). There is no dispute that the district court lacked diversity jurisdiction in this case, meaning that the court only had subject matter jurisdiction if it was able to pluck a legitimate federal question out of the filings. Courts usually determine jurisdiction based on a well-pleaded complaint. See Poulos v. Naas Foods, Inc., 959 F.2d 69, 72 (7th Cir.1992) (noting existence of well-pleaded complaint rule). Indeed, a plaintiff may avoid federal court even though certain federal questions may be implicit in his or her claim. Id. (citing Louisville & N.R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). However, a plaintiff may not dodge federal court, and so" }, { "docid": "6853324", "title": "", "text": "herein, the motion to remand is GRANTED, and the motion for costs and fees is DENIED. II. ANALYSIS It has long been settled that as a general principle the removal statutes are to be construed strictly out of “[d]ue regard for the rightful independence of state governments____” Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). Further, “[t]he party seeking removal bears the burden of establishing its right thereto.” Her Majesty the Queen in Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th Cir.1989) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97-98, 42 S.Ct. 35, 37-38, 66 L.Ed. 144 (1921)). Section 1446(b) provides in pertinent part that “[t]he notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.” “The [§ 1446] requirement for timely filing is not jurisdictional, but it is mandatory and must be strictly applied.” Shadley v. Miller, 733 F.Supp. 54, 55 (E.D.Mich.1990) (citations omitted). The issue raised by the Plaintiff’s motion is whether the April 26, 1991 facsimile transmission to Brown triggered § 1446(b)’s thirty day removal period. ■ The Defendants correctly notes that there is a split of authority on the proper interpretation of the words “receipt ... through service or otherwise____” Courts adopting the “Proper Service Rule” look to the legislative history behind the 1949 amendment of § 1446(b) which added the “service or otherwise” language to the statute. Love v. State Farm Mutual Automobile Insurance Co., 542 F.Supp. 65, 68 (N.D.Ga.1982). See also, Marion Corp. v. Lloyds Bank, PLC, 738 F.Supp. 1377, 1379 (S.D.Ala.1990). In so doing, they construe the 1948 amendment solely as" }, { "docid": "15372119", "title": "", "text": "constitutional. See McCurtain County Production Corp. v. Cowett, 482 F.Supp. 809, 812 (E.D.Okla.1978); Abernathy v. Consolidated Cab Co., 169 F.Supp. 831, 833 (D.Kan.1959). Removal statutes are to be construed strictly. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); McCurtain, 482 F.Supp. at 812. Any doubt as to the propriety of removal is to be resolved in favor of remand. See Fajen v. Foundation Reserve Insurance Co., 683 F.2d 331, 333 (10th Cir.1982); Radio Shack Franchise Department v. Williams, 804 F.Supp. 151, 153 (D.Kan.1992); see also Lorraine Motors, Inc. v. Aetna Casualty and Surety Co., 166 F.Supp. 319, 323 (E.D.N.Y.1958) (Because “want of federal jurisdiction would make futile the litigation of any of the issues in this court, every doubt should be resolved in favor of remand.” (internal quotes omitted) (quoting Rodriguez, 121 F.Supp. at 828)). Defendant, as the party asserting jurisdiction, has the burden of proving all jurisdictional facts and of establishing a right to removal. See Her Majesty the Queen in Right of Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th Cir.1989) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97-98, 42 S.Ct. 35, 66 L.Ed. 144 (1921)); P.P. Farmers’ Ele vator Co. v. Farmers Elevator Mutual Insurance Co., 395 F.2d 546, 548 (7th Cir.1968); see also Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673; Henderson v. Holmes 920 F.Supp. 1184, 1186 (D.Kan.1996). B. Discussion Plaintiff contends that this lawsuit should be remanded to state court for three alternative reasons: (1) untimeliness; (2) waiver; and (3) lack of subject matter jurisdiction. The Court agrees that Defendants’ removal was untimely and that, even if removal was timely, Defendants, by their acts in state court, waived there removal right. The Court does not reach the jurisdiction question, but leaves that for the state court to decide. 1. Timeliness Timeliness of removal is a matter of statute and of perspective. Under 28 U.S.C. § 1446(b): The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt" }, { "docid": "9548256", "title": "", "text": "the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. 28 U.S.C. § 1446(a) and (b) (emphasis added). Removal statutes have historically been strictly construed. As the United States Supreme Court noted in 1941, “[n]ot only does the language of the Act of 1887 evidence the Congressional purpose to restrict the jurisdiction of federal courts on removal, but the policy of the successive acts of Congress regulating the jurisdiction of federal courts is one calling for the strict construction of such legislation.” Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). The Ninth Circuit has consistently reaffirmed strict construction against removal. Gould v. Mutual Life Ins. Co. of New York, 790 F.2d 769, 773 (9th Cir.1986), cert. denied, 479 U.S. 987, 107 S.Ct. 580, 93 L.Ed.2d 582; Takeda v. Northwestern National Life Ins. Co., 765 F.2d 815, 818 (9th Cir.1985); Salveson v. Western States Bankcard Ass’n., 731 F.2d 1423, 1426 (9th Cir.1984); Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.1979). Strict construction is especially warranted in diversity cases, since concerns of comity mandate that state courts be allowed to decide state cases unless the removal action falls squarely within the bounds Congress has created." }, { "docid": "13392511", "title": "", "text": "decisions in the Eastern District of Louisiana resolving the thrust of the “service or otherwise” language of Section 1446(b), several other courts have spoken to the issue, and their decisions demand this Court’s attention in resolving the dispute here. I. Challenges to Removal, Generally Much of the literature is not in conflict, and some first principles are unchallenged. When a plaintiff questions the propriety of a defendant’s removal petition, the defendant bears the burden of showing that the removal was proper. Miller v. Stauffer Chemical Co., 527 F.Supp. 775, 777 (D.Kan.1981). The thirty day removal period is considered as mandatory, unless the party seeking a remand waives that requirement. Dow Corning Corp. v. Schpak, 65 F.R.D. 72, 74 (N.D.Ill.1974). Moreover, the removal statute is subject to strict construction. Butts v. Hansen, 650 F.Supp. 996 (D.Minn.1987). Finally, a removal petition not timely filed constitutes an “improvident” removal within the meaning of 28 U.S.C. § 1447(c), and remand is required. Royal v. State Farm Fire and Casualty Co., 685 F.2d 124 (5th Cir.1982). The Supreme Court, paying a proper respect to the role of state courts in our federal structure, has further instructed that federal courts are to construe the statute against removal and in favor of remand to state court. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). See also, Abels v. State Farm Fire & Cas. Co., 770 F.2d 26 (3d Cir.1985); Takeda v. Northwestern Nat. Life Ins. Co., 765 F.2d 815 (9th Cir.1985); Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331 (10th Cir.1982); Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571 (7th Cir.1982) cert. denied, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618 (1982); Wilson v. U.S. Dept. of Agriculture, 584 F.2d 137 (6th Cir.1978); Skidmore v. Beech Aircraft Corp., 672 F.Supp. 923 (M.D.La.1987). Federal courts, then, should be vigilant to possible settings which might result in the diminishment of state jurisdiction, and we should respect, when appropriate, plaintiffs choice of forum. See also, Smith v. Executive Fund Life Ins. Co., 651 F.Supp. 269 (M.D.La.1986). Thus, any doubts" } ]

[ { "docid": "22652580", "title": "", "text": "(1965) (fundamental fairness exception applies to claims that defendant asked counsel to raise on direct appeal). It is clear that collateral relief would be unavailable to petitioner. See People v. Beamon, 31 Ill. App. 3d 145, 145-146, 333 N. E. 2d 575, 575-576 (1975) (abstract of decision) (not invoking fundamental fairness exception and holding that Swain claim not raised on direct appeal could not be raised for the first time in collateral proceedings). As a result, petitioner has exhausted his state remedies under 28 U. S. C. § 2254(b) with respect to the Swain claim. See Engle v. Isaac, 456 U. S. 107, 125-126, n. 28 (1982); United States ex rel. Williams v. Brantley, 502 F. 2d 1383, 1385-1386 (CA7 1974). Under Wainwright v. Sykes, 433 U. S. 72, 87-91 (1977), petitioner is barred from raising the Swain claim in a federal habeas corpus proceeding unless he can show cause for the default and prejudice resulting therefrom. See Engle v. Isaac, supra, at 113-114, 117, 124-135 (applying procedural default rule to claim that had never been raised in state court). Petitioner does not attempt to show cause for his default. Instead, he argues that the claim is not barred because it was addressed by the Illinois Appellate Court. Cf. Caldwell v. Mississippi, 472 U. S. 320, 327-328 (1985). We cannot agree with petitioner’s argument. The Illinois Appellate Court rejected petitioner’s Sixth Amendment fair cross section claim ivithout mentioning the Equal Protection Clause on which Swain was based or discussing whether Swain allows a prosecutor to be questioned about his use of peremptory challenges once he volunteers an explanation. See People v. Teague, 108 Ill. App. 3d, at 895-896, 439 N. E. 2d, at 1070. Accordingly, we hold that petitioner’s Swain claim is procedurally barred, and do not address its merits. Our application of the procedural default rule here is consistent with Hands v. Reed, ante, at 263, which holds that 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" } ]

[ { "docid": "23476466", "title": "", "text": "the claim was unexhausted and permitted him to present this claim before a state court. Because this claim has not yet been aired in a state court proceeding, Lott contends, then no state court has enforced a procedural sanction against him, and his claim necessarily cannot then be procedurally barred, and the district court’s finding of procedural default, therefore, was erroneous. We disagree. State prisoners must exhaust their state remedies prior to raising claims in federal habeas corpus proceedings. See 28 U.S.C. § 2254(b), (c). This requirement is satisfied “when the highest court in the state in which the petitioner was convicted has been given a full and fair opportunity to rule on the petitioner’s claims.” Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.1990). The district court in the case at bar, quoting our decision in Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994), found that the jurisdiction issue was procedurally barred because Lott lacked any remedy for the alleged error in the state courts; the absence of available relief, it reasoned, rendered moot the exhaustion question: “If no remedy exists, and the substance of a claim has not been presented to the state courts, no exhaustion problem exists; rather, it is a problem of determining whether cause and prejudice exist to excuse the failure to present the claim in the state courts.” The district court expressly rejected Lott’s contention that he had available to him an opportunity to file a successor delayed application for reconsideration, noting that “[t]here is no available mechanism through which Lott could present his claims to the Ohio state courts.” The district court's conclusion is correct if its underlying assumption — that Lott was legally prohibited from raising the jurisdiction issue in a post-conviction action — is in fact true, a question we cannot answer given the record presently before us. Lott states that he filed his first successor post-conviction petition on March 31, 2000, raising this precise jurisdiction question. Because we do not have before us the actual petition, or information concerning the posture of this action, we cannot determine whether the" }, { "docid": "23457963", "title": "", "text": "direct appeal to the Ohio Supreme Court have expired, a delayed claim of ineffective assistance of appellate counsel must first be brought in an application for delayed reconsideration in the court of appeals where the alleged error took place, and, if delayed reconsideration is denied, the defendant must file a delayed appeal in the Ohio Supreme Court. Because Rust complied with these requirements by filing an application for delayed reconsideration in the court of appeals, and by filing a delayed appeal in the Ohio Supreme Court, Rust has exhausted his available state court remedies. We must therefore determine whether Rust’s claims are barred by his procedural default. Cause and Prejudice If a habeas corpus petitioner is barred from presenting one or more of his claims to the state courts because of procedural default, he has waived those claims for purposes of federal habeas corpus review unless he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error. Rust is barred from presenting his constitutional claims to the state courts because he had the opportunity to raise the issues during the course of his direct appeal but failed to do so. See State v. Roberts, 1 Ohio St.3d 36, 39, 1 O.B.R. 71, 73, 437 N.E.2d 598, 601 (1982) (the doctrine of res judicata precludes a petitioner from asserting constitutional issues in a postconviction proceeding that were not raised “at the earliest possible time”). Because Rust failed to raise his constitutional issues in his direct appeal, and because Rust’s procedural default constituted an “adequate and independent” state ground on which the state relied to foreclose judicial review of his constitutional claims, we may not consider Rust’s constitutional claims unless he can show cause to excuse his failure to present the claims in state court and actual prejudice to his defense at trial or on appeal. See Riggins v. McMackin, 935 F.2d 790, 793 (6th Cir.1991) (“[Because Ohio law establishes a procedural bar to Riggins’ due process claim, this court will not consider that claim unless Riggins establishes adequate cause to excuse his failure to raise" }, { "docid": "23457962", "title": "", "text": "court must dismiss habeas petitions containing both unexhausted and exhausted claims.”). Exhaustion is a problem only if the state still provides a remedy for the habeas petitioner to pursue, thus providing the state courts an opportunity to correct a constitutionally infirm state court conviction. If no remedy exists, and the substance of a claim has not been presented to the state courts, no exhaustion problem exists; rather, it is a problem of determining whether cause and prejudice exist to excuse the failure to present the claim in the state courts. Accordingly, we must determine whether Ohio provides a remedy for Rust to pursue. In State v. Murnahan, the Supreme Court of Ohio held that: claims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings (at the trial court level); claims of ineffective assistance of appellate counsel may be raised in an application for reconsideration in the court of appeals or in a direct appeal to the Ohio Supreme Court; and, where the time periods for reconsideration in the court of appeals and direct appeal to the Ohio Supreme Court have expired, a delayed claim of ineffective assistance of appellate counsel must first be brought in an application for delayed reconsideration in the court of appeals where the alleged error took place, and, if delayed reconsideration is denied, the defendant must file a delayed appeal in the Ohio Supreme Court. Because Rust complied with these requirements by filing an application for delayed reconsideration in the court of appeals, and by filing a delayed appeal in the Ohio Supreme Court, Rust has exhausted his available state court remedies. We must therefore determine whether Rust’s claims are barred by his procedural default. Cause and Prejudice If a habeas corpus petitioner is barred from presenting one or more of his claims to the state courts because of procedural default, he has waived those claims for purposes of federal habeas corpus review unless he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error. Rust is barred from presenting his constitutional claims to the state courts" }, { "docid": "23666264", "title": "", "text": "majority’s conclusion that Petitioner procedurally defaulted his juror bias claim and did not demonstrate cause and prejudice to excuse the procedural default. However, I disagree with the majority’s conclusion that Petitioner did not “fairly present” his Sixth Amendment claim to the Ohio state courts, as well as with the majority’s disposition of Petitioner’s Brady claim. Petitioner claims that the prosecution’s failure to timely produce evidence of the victim’s prior rape allegations violated his Sixth Amendment right to confrontation. The majority concluded that Petitioner did not fairly present his Sixth Amendment claim to the Ohio state courts and as a consequence, waived the claim for federal habeas review. A state prisoner seeking federal habeas relief “fairly presents” the substance of each claim to state courts, as required, by citing applicable provisions of the Constitution, federal decisions using constitutional analysis, or state decisions employing constitutional analysis in similar fact patterns. See 28 U.S.C. § 2254(b); Carter v. Bell, 218 F.3d 581, 606-07 (6th Cir.2000). Because Petitioner cited the Sixth Amendment in his state court appeal, and because the Ohio Court of Appeals understood that Petitioner was asserting his Sixth Amendment right to confront a witness as evidenced by the language used in its opinion, I believe that Petitioner “fairly presented” his confrontation claim to the Ohio state courts. I therefore believe the majority should have reached the merits of Petitioner’s Sixth Amendment claim. Although the majority is correct in concluding that Petitioner procedurally defaulted on his Brady claim, a review of Petitioner’s claim is not foreclosed so long as he can “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A petitioner can generally demonstrate cause if he can present a substantial reason to excuse the default. See Rust v. Zent, 17 F.3d 155, 161 (6th Cir.1994). In Murray v. Carrier, the Supreme Court stated that “the existence of cause for procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the" }, { "docid": "35627", "title": "", "text": "We have jurisdiction to review the dismissal of the habeas petition pursuant to 28 U.S.C. § 2253. Denial of petitioner’s habeas petition is subject to de novo review. See Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir.1994). District court findings of fact are reviewed for clear error. See id. Petitioner challenges the constitutionality of his state conviction by seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. The federal courts will not review a habeas petition where the state prisoner has not first presented his claims to the state courts and exhausted all state court remedies available to him. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). When a habeas corpus petitioner was denied the opportunity to present his claims to the state courts because of procedural default, the federal courts will consider his habeas petition only under limited circumstances. In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court explained that [i]n 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. For purposes of federal review in habeas cases, we may consider as an adequate and independent state procedural rule only a state procedural rule that was “firmly established and regularly followed by the time as of which it [was] to be applied,” in this case during the time when petitioner had a right to a direct appeal. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (quotation omitted); see also Warner v. United States, 975 F.2d 1207, 1213 (6th Cir.1992). Because M.C.R. 6.508(D)(3) was not enacted until 1989, long after the time for petitioner’s appeal of right, we must first determine whether Michigan’s prohibition against" }, { "docid": "468725", "title": "", "text": "L.Ed.2d 640 (1991). This can occur when an individual fails to present an issue to a state appellate court upon the only opportunity to do so. Teague v. Lane, 489 U.S. 288, 297-98, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). In Coleman, the Supreme Court held that if the decision of the last state court to which a habeas petitioner presented his federal claims fairly appeared to rest primarily on federal law, or to be interwoven with federal law, and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition. Id. at 735, 111 S.Ct. 2546. The Court went on to note: This rule does not apply if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred. In such a case there is a procedural default for purposes of federal ha-beas regardless of the decision of the last state court to which the petitioner actually presented his claims, [citation omitted] Id. at 735 n. 1, 111 S.Ct. 2546. The record demonstrates that Petitioner did not timely seek review of his habeas claims on direct appeal to the Michigan Supreme Court. The Michigan Supreme Court rejected his delayed application for leave to appeal because Petitioner submitted the application beyond the 56-day time period for seeking such review under Michigan Court Rule 7.302(C)(3). Thus, Petitioner has procedurally defaulted his habeas claims. When a petitioner has procedurally defaulted a claim by failing to raise it on direct appeal, the claim may be raised on habeas review only if the petitioner can first demonstrate either “cause” and “actual prejudice,” Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), or show that he is “actually innocent,” Id. at 496, 106 S.Ct. 2639; Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). The cause and prejudice test should be applied to" }, { "docid": "16489628", "title": "", "text": "Cir.1994); Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). The petitioner bears the burden of proving he has exhausted those remedies. Rust v. Zent, 17 F.3d at 160; Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.), cert. denied, 506 U.S. 924, 113 S.Ct. 347, 121 L.Ed.2d 262 (1992). Normally, the exhaustion requirement is satisfied after the petitioner fairly presents all his claims to the highest court in the state in which the petitioner was convicted, thus giving it a full and fair opportunity to rule on his claims before seeking relief in federal court. Rust, 17 F.3d at 160; Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir.1993); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.1990). If a prisoner fails to present his claims to a state court and is now barred from pursuing relief in the state courts, then his petition should not be dismissed for lack of exhaustion because there are simply no remedies available for him to exhaust. Hannah v. Conley, 49 F.3d at 1196. Although there is not an exhaustion problem in this type of case, the prisoner will not be allowed to present claims never before presented in the state courts unless he can show cause to excuse his failure to present the claim in the state courts and actual prejudice to his defense at trial or appeal. Gray v. Netherland, 518 U.S. 152, 160-161, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). Jones presents two claims in his § 2254 petition. His second claim of ineffective assistance of counsel consists of claims of ineffective assistance of counsel during different stages of his state court proceedings. The only claim he has not procedurally defaulted on is the claim that trial counsel was ineffective. Jones presented this issue to the Tennessee Supreme Court and accordingly, this Court will only address the claim of ineffective assistance of trial counsel. The claim he received ineffective assistance of counsel at all other stages of his criminal and post-conviction proceedings, and the claim his sentence was enhanced with an unconstitutional Idaho conviction have not been fairly presented to" }, { "docid": "23457961", "title": "", "text": "habeas corpus relief pursuant to 28 U.S.C. § 2254, the state prisoner must first exhaust his available state court remedies by presenting his claims to the state courts to provide the courts an opportunity to remedy any constitutional infirmities in his conviction. It is the petitioner’s burden to prove exhaustion. Darr v. Burford, 339 U.S. 200, 218-19, 70 S.Ct. 587, 597-98, 94 L.Ed. 761 (1950). The exhaustion requirement is satisfied when the highest court in the state in which the petitioner was convicted has been given a full and fair opportunity to rule on the petitioner’s claims.” Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.1990) (citations omitted). In fact, a petition containing at least one issue which was not presented to the state courts must be dismissed for failure to comply with the total exhaustion rule. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982) (“[BJecause a total exhaustion rule promotes comity and does not unreasonably impair the prisoner’s right to relief, we hold that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims.”). Exhaustion is a problem only if the state still provides a remedy for the habeas petitioner to pursue, thus providing the state courts an opportunity to correct a constitutionally infirm state court conviction. If no remedy exists, and the substance of a claim has not been presented to the state courts, no exhaustion problem exists; rather, it is a problem of determining whether cause and prejudice exist to excuse the failure to present the claim in the state courts. Accordingly, we must determine whether Ohio provides a remedy for Rust to pursue. In State v. Murnahan, the Supreme Court of Ohio held that: claims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings (at the trial court level); claims of ineffective assistance of appellate counsel may be raised in an application for reconsideration in the court of appeals or in a direct appeal to the Ohio Supreme Court; and, where the time periods for reconsideration in the court of appeals and" }, { "docid": "1976943", "title": "", "text": "direct appeal. Moreover, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Id. at 478, 486. As for the “prejudice” component of the fourth Maupin factor, the prejudice component of the cause and prejudice test utilized in collateral attacks upon a State court judgment is not satisfied if there is strong evidence of a petitioner’s guilt and a lack of evidence to support his claim. See Rust v. Zent, 17 F.3d 155, 161 (6th Cir.1994). Morales has not alleged that there was not “strong evidence” of his guilt; accordingly, the prejudice component “is not satisfied.” Id. at 162. The Court having thus generally determined that Morales cannot show cause and prejudice in connection with the procedural default of the aforesaid claims, unless Morales can show that his case somehow falls within the “ ‘fundamental miscarriage of justice’ exception to the procedural default rule,” Thompson, 118 S.Ct. at 1500 (quoting Coleman, 501 U.S. at 750, 111 S.Ct. 2546), those claims cannot be heard in federal habeas. Id. At this juncture, the Court will recapitulate Respondent’s procedural default argument for each separate ground for relief. The Court will then examine Morales’ arguments in this regard and Respondent’s rejoinder thereto. The Court will then render its opinion with respect to whether each particular ground or claim has been procedurally defaulted, and whether Morales has demonstrated any valid reason to forgive or excuse the procedural default of those of his claims which have been defaulted, so as to permit this Court to address the merits of those grounds. Finally, Court will address the merits of each of the claims asserted in the twelve grounds for relief in the Application which the Court has determined were not procedurally defaulted. In section VI infra, the Court will then examine Morales’ five remaining grounds for relief (those which Respondent does not argue have been procedurally defaulted) on the merits. Ground 1 — Petitioner Morales Was Denied The Right To The Effective Assistance Of" }, { "docid": "14595258", "title": "", "text": "findings of fact for clear error. See id. Given the complexity of this case, our review, of necessity, must be explicit. Primary or historical facts found by state courts are “presumed correct and are rebuttable only by clear and convincing evidence.” Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir.1999). District court findings of fact based upon its review of state court records or written decisions receive plenary review. See Caldwell v. Russell, 181 F.3d 731, 735 (6th Cir.1999). Determinations of federal law, or determinations involving mixed questions of fact and law, receive de novo review. See Mapes, 171 F.3d at 413. State court interpretations of state law generally bind the federal reviewing court. See Caldwell, 181 F.3d at 735-36. Before addressing the merits of his claims, we examine whether Gall has exhausted his state remedies, which he must do to gain habeas relief. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). With one exception, Gall presented the Kentucky courts with every constitutional claim that he raised before the district court and this Court. While Gall never asserted in state court the Confrontation Clause claim that he has argued below and before this Court, we agree with the Commonwealth that he procedurally defaulted on that claim because, without cause, he failed to bring it either on his direct appeal or state postconviction petition. See infra. Because the exhaustion requirement “refers only to remedies still available at the time of the federal petition ..., it is satisfied ‘if it is clear that [the habeas petitioner’s] claims are now procedurally barred under [state] law.” Gray v. Netherland, 518 U.S. 152, 161, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (citation omitted); see also Rust, 17 F.3d at 160 (stating that because “no remedy exists” in state court for petitioner’s constitutional claim, “no exhaustion problem exists”). Thus, Gall has exhausted all state remedies available to him. III. Gall challenges a number of aspects of the guilt phase of his trial. A. Legal Competence Gall argues that his due process rights were violated because he was not competent to stand trial, having lacked" }, { "docid": "15258476", "title": "", "text": "burden of proving that he has exhausted these remedies. See id. Caver, however, counters the Attorney General’s procedural default argument by noting that issues “raised for the first time on appeal are not properly before the court.” J.C. Wyckoff & Assocs., Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1488 (6th Cir.1991). A review of the record shows that Respondent did not raise the issue of default before the district court, instead attempting to meet the ineffective assistance of appellate counsel arguments on the merits of the issue. Accordingly, the Court need not address Caver’s alleged procedural default because Respondent did not, in fact, raise the issue in the proceedings before the district court. B. Caver Did Not Procedurally Default His Ineffective Assistance of Trial Counsel Claim The Attorney General also argues that Caver procedurally defaulted his trial counsel claim. As described above, exhaustion occurs where a petitioner gives the state courts a fair and full opportunity to rule on his claims by fairly presenting all claims to the highest court in the state in which the petitioner was convicted. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). The exhaustion requirement is also satisfied if it is clear that a claim is procedurally barred under state law. Gray v. Netherland, 518 U.S. 152, 161-62, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). In such a case, however, the habeas petitioner must overcome the procedural default, an independent and adequate state-law ground for the conviction and sentence that prevents federal habeas corpus review, by demonstrating cause and prejudice for the default. Id. at 162, 116 S.Ct. 2074. This court has previously announced a four part test to determine whether a claim has been procedurally defaulted: First, the court must determine that there is a state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed to comply with the rule_Second, the court must decide whether the state courts actually enforced the state procedural sanction .... Third, the court must decide whether the state procedural forfeiture is an “adequate and independent” state ground on which the" }, { "docid": "19850950", "title": "", "text": "cause and prejudice to excuse the default. See id. at 636-46. Addressing the underlying constitutional issue, the district court held that Cvijetinovic was sentenced under provisions of Ohio’s sentencing scheme that “permitted sentencing enhancements based on judicial fact-finding, and thus violate[d] Blakely.” Id. at 647. After finding that this error was not harmless, see id. at 649, the district court ordered Cvijetinovic re-sentenced within ninety days or released from incarceration, see id. at 654. The warden now appeals. II “In appeals of federal habeas corpus proceedings, we review the district court’s legal conclusions de novo and its factual findings under a ‘clearly erroneous’ standard.” Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999) (citing Fair v. United States, 157 F.3d 427, 430 (6th Cir.1998)); see also Moore v. Haviland, 531 F.3d 393, 401 (6th Cir.2008) (“We review a district court’s legal conclusions in a habeas petition de novo.”). Accordingly, “we review the district court’s decision applying the ‘cause and prejudice’ rules to the ‘procedural bar’ issues de novo.” Lucas, 179 F.3d at 416 (citing Lusk v. Singletary, 112 F.3d 1103, 1105 (11th Cir.1997)); see also Deitz v. Money, 391 F.3d 804, 808 (6th Cir.2004) (“The district court’s determination regarding procedural default and its resolution of whether ‘cause and prejudice’ exist to excuse the default are ... subject to de novo review.”). III It is undisputed that Cvijetinovic procedurally defaulted his Blakely claim, see Appellee’s Br. at 9 (“Appellee admits that he did not present his Sixth Amendment claim to the state court.”), a circumstance that typically precludes federal habeas review, see Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994) (“If a habeas corpus petitioner is barred from presenting one or more of his claims to the state courts because of procedural default, he has waived those claims for purposes of federal habeas corpus review....”). However, “[w]hen a habeas claim is procedurally defaulted, it may nevertheless be considered if the petitioner shows ‘cause for the procedural default and prejudice attributable thereto....'\" Burroughs v. Makowski, 411 F.3d 665, 667 (6th Cir.2005) (quoting Murray v. Carrier, 477 U.S. 478, 484, 106 S.Ct." }, { "docid": "6085104", "title": "", "text": "petitioner has shown cause for violating the state procedural rule and prejudice resulting from the alleged constitutional error. Id. Petitioner argues that res judicata was an inadequate procedural bar in this case because he was denied a reasonable opportunity to present his claims in state court in violation of Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955). However, this Court, in Rust v. Zent, 17 F.3d 155 (6th Cir.1994), and Riggins v. McMackin, 935 F.2d 790 (6th Cir.1991), has held that application of res judicata under § 2953.21 is an adequate and independent state ground justifying foreclosure of constitutional claims in habeas. Petitioner argues that Keener v. Ridenour, 594 F.2d 581 (6th Cir.1979), supports his position that application of res judicata under § 2953.21 was not an adequate and independent state ground for barring his habeas claims. In Keener, this Court found: The Ohio Supreme Court has construed the Post Conviction Act to preclude judicial review of new issues in all but a limited number of circumstances. As a result, Ohio post-conviction collateral relief is not coextensive with federal statutory habeas corpus. So long as the Ohio Post Conviction Act, as construed by the Supreme Court of Ohio in State v. Perry, remains unamended, there will be repeated instances in which an Ohio prisoner will present claims, cognizable in federal court, which have never been reviewed by the State courts of Ohio. Keener, 594 F.2d at 590 (footnote omitted). In Riggins, this Court did not address the coextensiveness of procedural default under the Ohio Post Conviction Act and federal habeas. Rather, this Court simply concluded, under Perry, that petitioner was: precluded from raising his due process claim in Ohio state court because he had the opportunity to raise the issue during the course of his direct appeal and failed to do so ... Thus, because Ohio law establishes a procedural bar to [petitioner’s] due process claim, this court will not consider that claim unless [petitioner] establishes [cause and prejudice]. Riggins, 935 F.2d at 793 (citing Perry, 226 N.E.2d at 104). In Rust, citing Riggins, this" }, { "docid": "2876084", "title": "", "text": "App. 9th Dist. Jan. 29, 2003); State v. Sanders, No. C-020077, 2002 WL 31127540 at *2 (Ohio App. 1st Dist. Sept. 27, 2002)(death penalty case); State v. Lott, Nos. 79790, 79791, 79792, 2002 WL 1265579 at *5 (Ohio App. 8th Dist. May 30, 2002)(death penalty case); State v. Davie, No. 2000-T-0104, 2001 WL 1647193 at *6 (Ohio App. 11th Dist. Dec. 21, 2001)(death penalty case). Thus, Ohio Rev.Code § 2953.23(A) was at the time of Sheppard’s second or successive petition for post-conviction relief and remains an independent and adequate state procedural rule, satisfying the third Maupin requirement. Therefore, Sheppard’s second, third, fifth, and sixth sub-claims are procedurally defaulted. In addition, insofar as the trial court relied on the doctrine of res judicata in its denial of Sheppard’s second or successive post-conviction relief petition, that state procedural rule has also been found to be an independent and adequate state ground upon which to find a habeas petitioner’s claim procedurally defaulted. Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir.2001); Coleman v. Mitchell, 268 F.3d 417, 429 (6th Cir.2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir.2000), cert. denied 531 U.S. 1082, 121 S.Ct. 786, 148 L.Ed.2d 682 (2001); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir.1994). Thus, to the extent the trial court relied on the doctrine of res judicata in denying the relevant sub-claims, the sub-claims are procedurally defaulted. Except for his third sub-claim, Sheppard has made no showing of cause and prejudice to excuse the procedural default as it relates to the present sub-claims. (Amended Petition, Doc. No. 77 at 46-49; Merits Brief and Traverse, Doc. No. 89 at 107-9.) Thus, the Magistrate Judge recommends the second, fifth, and sixth sub-claims be denied as they are procedurally defaulted. The Court notes, however, that in his next ground for relief, Sheppard argues that his appellate counsels’ ineffectiveness accounts for his failure to raise trial counsels’ ineffectiveness respecting the systemic discrimination issue in Sheppard’s second sub-claim. (Amended Petition, Doc. No. 77 at 54.) For the reasons stated below, Sheppard has not demonstrated that his counsel on direct appeal were" }, { "docid": "15258477", "title": "", "text": "in which the petitioner was convicted. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). The exhaustion requirement is also satisfied if it is clear that a claim is procedurally barred under state law. Gray v. Netherland, 518 U.S. 152, 161-62, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). In such a case, however, the habeas petitioner must overcome the procedural default, an independent and adequate state-law ground for the conviction and sentence that prevents federal habeas corpus review, by demonstrating cause and prejudice for the default. Id. at 162, 116 S.Ct. 2074. This court has previously announced a four part test to determine whether a claim has been procedurally defaulted: First, the court must determine that there is a state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed to comply with the rule_Second, the court must decide whether the state courts actually enforced the state procedural sanction .... Third, the court must decide whether the state procedural forfeiture is an “adequate and independent” state ground on which the state can rely to foreclose review of a federal constitutional claim.... [Fourth,] the petitioner must demonstrate under [Wainwright v.] Sykes, [433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)] that there was “cause” for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). M.C.R. 6.508(D)(3) governs the procedures for collateral appeals and denies relief if the defendant alleges claims that could have been raised in the direct appeal from the conviction. See People v. Jackson, 465 Mich. 390, 633 N.W.2d 825 (2001). Specifically, the Attorney General asserts that the issue of denial of counsel during a “critical stage” of the trial was not presented to the state courts. Ultimately, then, the issue is whether Caver fairly presented the claim to the Michigan courts in his one and only motion for relief from judgment. Fair presentation of an issue requires that a petitioner give state courts a full opportunity to resolve any constitutional issues by invoking “one" }, { "docid": "468727", "title": "", "text": "all occasions where a procedural default bars state litigation of a constitutional claim. Coleman, 501 U.S. at 750, 111 S.Ct. 2546. To establish cause, a petitioner must establish that some external impediment frustrated his ability to comply with the state’s procedural rule. Murray, 477 U.S. at 488, 106 S.Ct. 2639. A petitioner must present a substantial reason to excuse the default. Amadeo v. Zant, 486 U.S. 214, 223, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988); Rust, 17 F.3d at 161. In this case, Petitioner neither alleges nor establishes cause to excuse his failure to timely seek leave to appeal his convictions and sentences to the Michigan Supreme Court. This Court need not address the issue of prejudice when a petitioner fails to establish cause to excuse a procedural default. See, e.g., Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th Cir.1983). Petitioner’s claim is thus barred by procedural default. As noted, when a petitioner has defaulted his state remedies and has not demonstrated cause and prejudice, a federal court may entertain the habeas petition only if the petitioner makes a showing of actual innocence. Murray, 477 U.S. at 496, 106 S.Ct. 2639; see also Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998) (to establish actual innocence, meaning “factual innocence, not merely legal insufficiency,” a habeas petitioner must demonstrate that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him”). Petitioner has made no such showing in the case at hand. His habeas claims are thus barred by the doctrine of procedural default. IY. Conclusion For the reasons stated, the Court concludes that Petitioner’s claims are barred by procedural default and that he is not entitled to federal habeas relief on the claims presented. Accordingly, IT IS ORDERED that Petitioner’s request for habeas relief is DENIED and his application for writ of habeas corpus is DISMISSED WITH PREJUDICE. JUDGMENT The above-entitled matter having come before the Court on a Petition for" }, { "docid": "2563219", "title": "", "text": "Lentz, 70 Ohio St.3d 527, 639 N.E.2d 784, 785 (1994). This court has held that this rule is regularly and consistently applied by Ohio courts as required by the four-part Maupin test. See Byrd, 209 F.3d at 521-22. Buell contends that the Ohio state courts did not invoke any applicable procedural rule. Yet the Ohio courts could not invoke a procedural rule against claims that were not brought before it. Buell asserted four claims on direct appeal and in his post-conviction petition, while his habeas petition contained thirty-three claims and hundreds of subclaims. This court has previously stated that a petitioner’s failure to raise his claims in Ohio courts is an adequate and independent state law ground for upholding the petitioner’s conviction and sentence. See Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir.1999). Recently, we stated that a petitioner “cannot obtain federal habeas relief under 28 U.S.C. § 2254 unless he has completely exhausted his available state court remedies to the state’s highest court.” Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir.2001). Furthermore, we noted that “a petitioner cannot circumvent the exhaustion requirement by failing to comply with state procedural rules.” Ibid. This is precisely what Buell has done. We conclude that portions of Buell’s third, sixth, and tenth claims and his entire seventh, eighth, and ninth claims were procedurally defaulted because they were not presented to the Ohio courts on direct appeal. Buell attempts to use the ineffective assistance of appellate counsel claims that he brought to the Ohio courts as cause to excuse his procedurally defaulted claims. In Edwards v. Carpenter, the Supreme Court held that “an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted.” 529 U.S. 446, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). The Court pointed out that it may be possible for a procedurally defaulted ineffective assistance of appellate counsel claim to “be excused if the prisoner can satisfy the cause-and-prejudice standard with respect to that claim.” Ibid. The State asserts that Buell defaulted his ineffective assistance of appellate counsel claims by failure" }, { "docid": "19850951", "title": "", "text": "v. Singletary, 112 F.3d 1103, 1105 (11th Cir.1997)); see also Deitz v. Money, 391 F.3d 804, 808 (6th Cir.2004) (“The district court’s determination regarding procedural default and its resolution of whether ‘cause and prejudice’ exist to excuse the default are ... subject to de novo review.”). III It is undisputed that Cvijetinovic procedurally defaulted his Blakely claim, see Appellee’s Br. at 9 (“Appellee admits that he did not present his Sixth Amendment claim to the state court.”), a circumstance that typically precludes federal habeas review, see Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994) (“If a habeas corpus petitioner is barred from presenting one or more of his claims to the state courts because of procedural default, he has waived those claims for purposes of federal habeas corpus review....”). However, “[w]hen a habeas claim is procedurally defaulted, it may nevertheless be considered if the petitioner shows ‘cause for the procedural default and prejudice attributable thereto....'\" Burroughs v. Makowski, 411 F.3d 665, 667 (6th Cir.2005) (quoting Murray v. Carrier, 477 U.S. 478, 484, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)); see also Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir.2009) (“A defendant can overcome a procedural default by showing (a) cause for the default and (b) actual prejudice from it.”). Consequently, we may only affirm the district court’s judgment if we are satisfied that Cvijetinovic has demonstrated both cause and prejudice. Ultimately, we are not so persuaded. Our inquiry begins and ends with the issue of cause. “[T]he 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.” Murray, 477 U.S. at 488, 106 S.Ct. 2639; see also Shorter v. Ohio Dep’t of Rehab. & Corr., 180 F.3d 723, 726 (6th Cir.1999) (noting that petitioner had failed to demonstrate cause because his “[cjounsel’s efforts to comply with the State’s procedural rule were not impeded by some objective factor external to the defense”). “Such factors may include ‘interference by officials,’ attorney error rising to the level" }, { "docid": "8923560", "title": "", "text": "state remedies remain available to a habeas petitioner who has not fairly presented his constitutional claim to the state courts, the exhaustion doctrine precludes a federal court from granting him relief on that claim: although a federal court now has the option of denying the claim on its merits, 28 U.S.C. § 2254(b)(2), it must otherwise dismiss his habeas petition without prejudice so that the petitioner may return to state court in order to litigate the claim.” Perruquet, 390 F.3d at 514; Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); see 28 U.S.C. § 2254(b)(1)(A). Where the petitioner has already pursued his state court remedies “and there is no longer any state corrective process available to him, it is not the exhaustion doctrine that stands in the path to habeas relief, see 28 U.S.C. § 2254(b)(1)(B)(i), but rather the separate but related doctrine of procedural default.” Perruquet, 390 F.3d at 514. See also Coleman v. Hardy, 628 F.3d 314, 318 (7th Cir.2010) (when a petitioner fails to raise a particular claim on direct appeal or in post-conviction proceedings, the claim is proeedurally defaulted). Procedural default generally precludes a federal court from reaching the merits of a habeas claim when the claim was not presented to the state courts and it is clear that the state courts would now find the claim proeedurally barred. Perruquet, 390 F.3d at 514. Procedural default may be excused, however, if the petitioner can show both cause for and prejudice from the default, or can demonstrate that the district court’s failure to consider the claim would result in a fundamental miscarriage of justice. Dretke v. Haley, 541 U.S. 386, 393, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) (a federal court will not entertain a proeedurally defaulted constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse the default); Coleman, 628 F.3d at 318 (procedural default may be avoided if a petitioner can demonstrate cause and prejudice, or a fundamental" }, { "docid": "35626", "title": "", "text": "in the U.S. District Court for the Eastern District of Michigan, claiming as constitutional error most of the same claims raised in his 1992 motion for relief from judgment. Although the magistrate judge recommended that respondent be ordered to answer the petition, see J.A at 98-109 (Magistrate J. R & R), the district judge ruled that because the issues raised in the habeas petition were procedurally defaulted under Michigan law, it could not review petitioner’s claims. See J.A. at 138-39 (Dist. Ct. Op. and Order). The district court also concluded that petitioner presented no evidence to support his claim of ineffective assistance of counsel. See J.A. at 139 (Dist. Ct. Op. and Order); see also Petitioner’s App. at A-28-29 (Cir. Ct. for County of Wayne Op. and Order (finding that petitioner’s appellate counsel withdrew with judicial permission after petitioner had discharged him)). Accordingly, the district court found that petitioner failed to show either cause for the default or likelihood of success on the merits, and dismissed petitioner’s habeas petition. See J.A. at 139. II. ANALYSIS We have jurisdiction to review the dismissal of the habeas petition pursuant to 28 U.S.C. § 2253. Denial of petitioner’s habeas petition is subject to de novo review. See Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir.1994). District court findings of fact are reviewed for clear error. See id. Petitioner challenges the constitutionality of his state conviction by seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. The federal courts will not review a habeas petition where the state prisoner has not first presented his claims to the state courts and exhausted all state court remedies available to him. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). When a habeas corpus petitioner was denied the opportunity to present his claims to the state courts because of procedural default, the federal courts will consider his habeas petition only under limited circumstances. In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court explained that [i]n all cases in which a state prisoner has defaulted his federal" } ]

[ { "docid": "9395537", "title": "", "text": "remand. Following oral argument, the case is now before the court for decision on plaintiff’s motion. Four challenges to this court’s removal jurisdiction have been asserted. I. Plaintiff first claims that 28 U.S.C. § 1332(c) requires that in any “direct action” against an insurer in which the insured is not joined as a defendant, the insurer shall be deemed a citizen of the same state as the insured. Since the insured is not joined as a defendant in the present action, plaintiff argues that § 1332(c) is applicable to the present case and compels us to remand it to state court for lack of diversity jurisdiction. Counsel have not cited and we have not found any Supreme Court or Fifth Circuit decisions construing the proviso clause to § 1332(c). The only Court of Appeals case construing the proviso appears to be White v. United States Fidelity & Guaranty Co., 356 F.2d 746 (1 Cir. 1966). In that case the plaintiff sued her liability insurer in a Rhode Island state court; the insurer’s attempted removal to federal court was contested by plaintiff on the same ground as in the case at bar. The First Circuit held, in sustaining removal jurisdiction, that the words “direct action” referred exclusively to statutes such as those of Louisiana and Wisconsin which allow a party injured by negligence of an insured tort-feasor to sue his liability insurer alone without joining the insured. As evidence that Congress intended the words “direct action” to be so limited, the Court in White cited Senate Report # 1308, submitted by Senator Eastland, Chairman of the Senate Judiciary Committee, which drafted the 1964 amendment creating the proviso to § 1332 (c). That report clearly shows that the purpose of the limitation on federal jurisdiction provided by § 1332(c) proviso was to lessen the flood of litigation in federal courts brought about by the direct action statutes of Louisiana and Wisconsin. A district court case directly in point is Inman v. M. F. A. Mutual Ins. Co., 264 F.Supp. 727 (D.C.Ark.1967), in which an insured sued her own insurer in Arkansas state" } ]

[ { "docid": "794989", "title": "", "text": "apply as excess to the extent their respective aggregate limits exceed those of the primary policy.” The clause added that “the maximum recovery under all insurance” was the “amount which would have been payable under the provisions of the insurance providing the highest dollar limit____” On May 14, 1985, Smith sued in state court for a declaratory judgment that State Farm owed him the additional $15,000 on his parents’ policy. On June 5, 1985, State Farm filed a petition for removal to this court under 28 U.S.C. sections 1332, 1441, 1446. Before this court today is Smith’s motion for remand. Analysis Smith advances two grounds to support his argument that the case should be remanded to state court. I 28 U.S.C. section 1332(c)' provides in pertinent part: For the purpose of this section ... a corporation shall be deemed a citizen of any state by which it has been incorporated and of the state where it has its principal place of business: Provided further, That in any direct action against the insurer of a policy or contract of liability insurance.. .to which action the insured is not joined as a party defendant, such insurer shall be deemed a citizen of the state of which the insured is a citizen____ As plaintiff herein, Smith, the insured, is, obviously, not joined as a defendant. Urging that the above quoted language be read literally, he argues that there is no diversity jurisdiction because State Farm should be considered a citizen of the same state as the insured. Smith cites several cases in support of his contention. They are not in point. In none of them did plaintiff sue his own insurance company. For example, in McMurry v. Prudential Property and Casualty Ins. Co., 458 F.Supp. 209 (E.D. Mich.1978), the court held that section 1332(c), supra, applied to no-fault cases because they were direct actions. However, the insured was not the plaintiff. Properly, section 1332(c) applies in third-party tort liability eases, in which the insured is the defendant-tortfeasor, not the plaintiff-victim who is suing his own insurer on a contract theory. Thornton v. Allstate," }, { "docid": "18162124", "title": "", "text": "PER CURIAM: This is an attempted appeal via trial de novo from an award of workmen’s compensation by the Texas Industrial Accident Board. Diversity jurisdiction would exist but for 28 U.S.C. § 1332(c): “(c) For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business: Provided further, that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business.” The district court dismissed the insurance company’s suit on the authority of Hernandez v. Travelers Insurance Co., 489 F.2d 721 (5th Cir. 1974), in which we held that in such an attempted appeal by the injured workman, the insurer sued should be deemed a citizen of the state of the insured-employer. Diversity jurisdiction was therefore wanting. The sole distinction between Hernandez and this case is that here it is the insurer which wishes to appeal and has sought to invoke federal jurisdiction to do so. We hold it is without a difference. All the policy considerations arguing for the application of § 1332(c) made in Hernandez, and so well set out there, argue that it be applied here. Appellant asserts that this is not such a “direct action against the insurer” as § 1332(c) concerns. As for “directness,” the case is as immediate between the injured claimant and the insurer as was Hernandez. That opinion disposes of all but the circumstance that here the shoe is on the other foot, the insurer is bringing suit to appeal against the claimant. The distinction urged is valid, but too thin. As noted, all the same policy considerations for our earlier holding apply here." }, { "docid": "5967296", "title": "", "text": "REVISED MEMORANDUM OPINION AND ORDER NEESE, District Judge. The plaintiff Mr. Cunningham sued this defendant’s insured in tort in this Court, Cunningham v. Higgins, civil action no. 2303, this division, and sued this defendant for breach of a contract of liability insurance in a Tennessee state court. He claims that this defendant contracted thereunder by implication to pay him the full amount of damages for which Mr. Higgins is liable to him. This action was removed to this Court from the state court. 28 U.S.C. §§ 1441(a), 1332(a) (1), (c). It was alleged in the removal petition herein that the plaintiff in both actions is a citizen of Ohio, that the tortfeasor is a Tennessee citizen, and that the corporate defendant herein is an Illinois corporation, not incorporated by either Tennessee or Ohio, with its principal place of business in Illinois. The plaintiff moves for a remand of this action as having been removed improvidently without jurisdiction, 28 U.S. C. § 1447(c), because this is a direct action against the insurer of a policy or contract of liability insurance, to which the insured is not joined as a party defendant ; and, therefore, that in this situation this defendant-insurer must be deemed a citizen of Tennessee. 28 U.S.C. § 1332(c). A defendant is not entitled to remove an action from a state court if any of the parties in interest properly joined and served as defendants is a citizen of the state in which the action is brought. 28 U.S.C. § 1441(b). The 1964 amendment to 28 U.S.C. § 1332(c), providing that, in a direct action against the insurer of a policy or contract of liability insurance, to which action the insured is not joined as a party-defendant, the insurer is to be deemed a citizen of the state of which the insured is a citizen, was enacted to prevent further increasing of the diversity caseload of federal courts in states (such as Wisconsin and Louisiana), where statutes had been enacted permitting suits directly against insurance companies without the necessity of joining the insured as a party. Henderson v. Selective" }, { "docid": "23193988", "title": "", "text": "California on the basis of diversity jurisdiction. No motion to remand the action to state court was made at that time. The court denied Beck-ham’s request for a jury trial as untimely because it was not made within 10 days of Safeco’s last responsive pleading, as required by Fed.R.Civ.P. 38(b). The district court then granted Safeco’s motion for summary judgment on all of Beckham’s claims. After entry of summary judgment, Beckham moved to remand the action to state court on the ground that there was no diversity of citizenship between the parties. The court denied this motion. Beckham filed a timely notice of appeal, and we note jurisdiction under 28 U.S.C. § 1291. DISCUSSION Beckham argues on appeal that the district court lacked subject matter jurisdiction over her action, that the court erred in granting summary judgment, and that the court abused its discretion in denying her request for a jury trial. We affirm the district court in all respects except as to the grant of summary judgment on Beckham’s claim under § 790.03(h)(5). A. Diversity Jurisdiction Safeco is incorporated and has its principal place of business in the state of Washington, and thus is deemed a citizen of that state for purposes of determining diversify. See 28 U.S.C. § 1332(c). Since Beckham is a citizen of California, diversity jurisdiction is established. Beckham contends, however, that her suit'against Safeco is a “direct action” within the meaning of § 1332(c) to which Mankin, Safeco’s insured, has not been joined as a defendant. Since Safeco must therefore be considered a citizen of California, the state of which Mankin is a citizen, diversity is lacking. We disagree. Section 1332(c) provides in pertinent part that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen .... This portion of § 1332(c) was enacted in 1964 specifically to eliminate from diversity jurisdiction tort claims in which both the" }, { "docid": "17031405", "title": "", "text": "of Keel v. MFA Insurance Co., 553 P.2d 153 (Okl. 1976), and that as Plaintiff is a Texas citizen, Defendant is deemed to be a Texas citizen under 28 U.S.C. § 1332(c) so that this Court lacks jurisdiction and this case should therefore be remanded to the District Court of Oklahoma County. In its Brief, Defendant contends that the “direct action” provision of 28 U.S.C. § 1332(c) was intended to apply to the situation where one person is allowed to sue the insurer of a second person without joining said second person and does not apply to a suit brought by an insured against his own insurer under the uninsured motorist provisions of the policy. 28 U.S.C. § 1332(c) provides as follows: “For the purposes of this section and section 1441 of this title, a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business: Provided further, That in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business.” The proviso of the above section was added in 1964. The legislative history of the 1964 amendment to § 1332(c) discussed in White v. United States Fidelity and Guaranty Co., 356 F.2d 746 (1 Cir. 1966), makes it clear that the words “direct action” were used to refer to statutes such as those in Louisiana and Wisconsin which allow a party injured by the negligence of an insured to pursue his right of action against the insurer alone. Therefore, the primary purpose of § 1332(c) would seem to have been to remedy the overcrowding of the dockets of the federal courts in Louisiana and Wisconsin caused by the fact that citizens" }, { "docid": "11036944", "title": "", "text": "MEMORANDUM AND ORDER PERRY, District Judge. This matter is before the undersigned on the plaintiffs’ motion to remand this action to state court. Plaintiffs filed this cause of action in the Circuit Court for the City of St. Louis, State of Missouri, pursuant to § 379.200 R.S.Mo., the Missouri “equitable garnishment” statute. In the suit plaintiffs seek to collect a judgment they obtained in state court against defendant’s insureds, who are Missouri citizens. Defendant’s removal petition alleges that the plaintiffs are citizens of the state of Texas, and that it is an Illinois corporation with its principal place of business in Illinois, and that therefore diversity jurisdiction is proper under 28 U.S.C. 1332(a), as an action between citizens of different states. Plaintiffs’ motion to remand asserts that this is a direct action against an insurance company and that therefore the defendant insurance company must be deemed a citizen of the state of Missouri, pursuant to 28 U.S.C. § 1332(c)(1), since that is the citizenship of its insureds. Plaintiffs assert, therefore, that this action is nonremovable under 28 U.S.C. § 1441(b) because defendant is deemed a Missouri citizen. The Court agrees with plaintiffs that an action under § 379.200, R.S.Mo., is a direct action as that term is used in § 1332(e)(1), and that therefore defendant is deemed a citizen of Missouri and may not remove the action. The plaintiffs’ motion to remand will therefore be granted. Section 379.200, R.S.Mo., provides a method for collection of insurance proceeds by a plaintiff who has obtained a final judgment against an insured defendant for covered actions. The statute provides: ... if the judgment is not satisfied within thirty days after the date when it is ren dered, the judgment creditor may proceed in equity against the defendant and the insurance company to reach and apply the insurance money to the satisfaction of the judgment. Plaintiffs’ petition alleges that they obtained a judgment against two entities who were insured by defendant, and that the judgment was for losses covered by defendant’s insurance policy. Plaintiffs did not join the judgment debtors as defendants in this" }, { "docid": "6128145", "title": "", "text": "once again filed a motion in the Middle District of Florida to have her action against Allied remanded to a Florida state court. In her motion, Kong again argued her claim against Allied was a direct action, which would defeat diversity. The district court deferred ruling on the motion until the proceedings in California concluded. Once those proceedings had ended, however, the district court denied Kong’s motion for essentially the same reasons it had denied her prior motion to remand — that is, that Kong’s claim against Allied was not a “direct action” under § 1332(c). The district court then determined that it had been conclusively decided in the California proceedings that Allied’s insurance policy with Costello did not cover Kong’s injury. It therefore entered judgment in favor of Allied. II Kong argues before this Court that the district court erred in concluding it had diversity jurisdiction. She maintains that her claim against Allied falls within the direct-action provision of 28 U.S.C. § 1332(c) and thus defeats diversity jurisdiction. In response, Allied contends that Kong’s claim against it is not a “direct action” within the meaning of the diversity statute. Section 1332(c) defines a corporation’s citizenship for the purposes of determining diversity. It provides that a corporation is generally deemed to be a citizen of every state in which it was incorporated, as well as the state in which it maintains its principal place of business. 28 U.S.C. § 1332(c). However, the statute creates an exception for insurance companies in certain circumstances. It provides that “in any direct action against the insurer of a policy or contract of liability insurance ... to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of every State and foreign state of which the insured is a citizen.” Id. In other words, if a third-party plaintiff brings a direct action against a tortfeasor’s liability insurer, the insurer is considered a citizen of the insured’s state. Section 1332(c) does not define what constitutes a direct action for purposes of the diversity determination. As this Circuit has recognized," }, { "docid": "12291211", "title": "", "text": "of citizenship does not exist in this case because this is a direct action against the insurer of a policy of liability insurance and Title 28 U.S.C. § 1332(e)(1) and 28 U.S.C. § 1441 deem the insurer a citizen of the state of which the insured is a citizen. A. Amount in Controversy Plaintiff has not made a liquidated claim for damages in either her original petition or Motion for Remand. Plaintiff did make two pre-suit settlement demands of $50,000.00 and $35,000.00 and in her Motion for Remand has stated the amount in controversy does not appear to exceed $50,000 (Affidavit of Cary Jones, paragraph 7.) However, Plaintiff has unliquidated damages claims which include pain and suffering and under the liability insurance policy the Plaintiff has at least the potential to recover up to $100,000. The total amount sought for damages must appear to a legal certainty to be less than the jurisdictional amount to justify remand of a case to state court. Johns-Manville Sales Corp. v. Mitchell Enterprises, Inc., 417 F.2d 129 (5th Cir.1969). In this case it does not appear to a legal certainty that the amount in controversy is less than the jurisdictional limit, therefore, the $50,000.00 requirement is met. B. Diversity Plaintiff argues that Defendant Allstate must be deemed a citizen of the State of Texas because of Title 28 U.S.C. § 1332(c)(1) which provides: In any direct action against the insurer of a policy or contract of liability insurance ... such insurer shall be deemed a citizen of the State of which the insured is a citizen ... Section 1332(c)(1) and its legislative history clearly show that an action by an insured against his own insurer is not a “direct action.” Adams v. State Farm Automobile Insurance Company, 313 F.Supp. 1349 (N.D.Miss.1970). Plaintiff is suing her own insurance company in this case, therefore Defendant is not deemed a citizen of this state and diversity exists between the parties. Accordingly, it is ORDERED that Plaintiff’s Motion for Remand is hereby DENIED. It is further ORDERED that Plaintiff’s request for costs of the Motion for Remand is" }, { "docid": "11036948", "title": "", "text": "statute after Louisiana passed a “direct action” statute, which had the effect of “ereat[ing] diversity jurisdiction in cases in which both the tortfeasor and the injured party were residents of Louisiana, but the tortfeasor’s insurer was considered a resident of another state.” 493 U.S. at 10, 110 S.Ct. at 299. Congress amended the statute because such a result was not within the “spirit or intent” of diversity jurisdiction. From a policy point of view, this case presents a very similar situation. The defendant insurance company in this case is not being sued for any action it took against the plaintiffs, but is simply being sued in an attempt to collect a judgment that has already been entered against its insured, a Missouri citizen. The cases relied on by defendant in support of removal all deal with claims against insurance companies for their own actions, such as vexatious refusal to pay, and not to mere attempts to collect directly for covered losses caused by the insureds. Missouri’s equitable garnishment statute essentially does in two steps what the Louisiana statute that lead to the change in § 1332(c)(1) did in one step, and provides to the suing plaintiff the same remedy that a direct action against the insurance company would have provided, were that allowed under Missouri law. Therefore the Court holds that the insurance company is deemed a citizen of the state of Missouri for purposes of this suit. Because a citizen of Missouri is a defendant in this suit, the case is not removable. 28 U.S.C. § 1441(b). Accordingly, IT IS HEREBY ORDERED that plaintiffs’ motion to remand [# 8] is granted. IT IS FURTHER ORDERED that the Clerk of the Court shall remand this case to the Circuit Court for the City of St. Louis, State of Missouri, from which it was removed." }, { "docid": "15373703", "title": "", "text": "action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as any state by which the insurer has been incorporated and of the State where it has its principle place of business. This statute is most often cited in cases where “a party suffering injuries or damage for which another is legally responsible is entitled to bring suit against the other’s liability insurer without joining the insured or first obtaining a judgment against him.” Rosa v. Allstate Ins. Co., 981 F.2d 669 (2nd Cir.1992). If state law “permit[s] one claiming injury at the hands of another who was covered by liability insurance to sué the liability insurer rather than the alleged wrongdoer,” § 1332(c)(1) adds the requirement of diversity of jurisdiction between the tortfeasor and the injured plaintiff — even though the tortfeasor is not a party. Ford Motor Co. v. Insurance Co. of N. Am., 669 F.2d 421, 424 (6th Cir.1982). “By cloaking the nonresident insurer with the citizenship of its insured, Congress removed the basis of diversity jurisdiction.” Id. In Kormanik, Judge Polster concluded that § 1332(c)(1) applies to Scott-Pontzer cases, so that, when an employee sues his employer’s insurance company for UM/UIM coverage, the defendant insurance company must be deemed a resident of the same state as the employer-insured. In response to the Cornelias’ motion to remand, the defendants respectfully assert that Kormanik was wrongly decided. The defendants insist § 1332(c)(1) does not operate to preclude diversity jurisdiction in this case because: (1) this is not a “direct action;” and (2) the UM/UIM coverage provided by St. Paul and Guaranty National is not “a policy or contract of liability insurance.” With regard to the first assertion, the defendants argue that a “direct action” is “limited to cases where a party sues an insurer, on the basis of an insured’s liability, without joining and first obtaining a judgment against the insured ...." }, { "docid": "12291212", "title": "", "text": "In this case it does not appear to a legal certainty that the amount in controversy is less than the jurisdictional limit, therefore, the $50,000.00 requirement is met. B. Diversity Plaintiff argues that Defendant Allstate must be deemed a citizen of the State of Texas because of Title 28 U.S.C. § 1332(c)(1) which provides: In any direct action against the insurer of a policy or contract of liability insurance ... such insurer shall be deemed a citizen of the State of which the insured is a citizen ... Section 1332(c)(1) and its legislative history clearly show that an action by an insured against his own insurer is not a “direct action.” Adams v. State Farm Automobile Insurance Company, 313 F.Supp. 1349 (N.D.Miss.1970). Plaintiff is suing her own insurance company in this case, therefore Defendant is not deemed a citizen of this state and diversity exists between the parties. Accordingly, it is ORDERED that Plaintiff’s Motion for Remand is hereby DENIED. It is further ORDERED that Plaintiff’s request for costs of the Motion for Remand is hereby DENIED." }, { "docid": "5967297", "title": "", "text": "contract of liability insurance, to which the insured is not joined as a party defendant ; and, therefore, that in this situation this defendant-insurer must be deemed a citizen of Tennessee. 28 U.S.C. § 1332(c). A defendant is not entitled to remove an action from a state court if any of the parties in interest properly joined and served as defendants is a citizen of the state in which the action is brought. 28 U.S.C. § 1441(b). The 1964 amendment to 28 U.S.C. § 1332(c), providing that, in a direct action against the insurer of a policy or contract of liability insurance, to which action the insured is not joined as a party-defendant, the insurer is to be deemed a citizen of the state of which the insured is a citizen, was enacted to prevent further increasing of the diversity caseload of federal courts in states (such as Wisconsin and Louisiana), where statutes had been enacted permitting suits directly against insurance companies without the necessity of joining the insured as a party. Henderson v. Selective Insurance Company, C.A.6th (1966), 369 F.2d 143, 149, headnote 3. The instant action is not such “direct action” as was contemplated by the Congress in the sense of 28 U.S.C. § 1332(c), and the amended language is inapplicable here. Cf. Carvin v. Stand ard Accident Insurance Co., D.C.Tenn. (1966), 258 F.Supp. 232, 234, headnote 2. The plaintiff’s motion of February 17, 1969 to remand this action to the state court whence it came hereby is Denied. Pretrial conferences will be rescheduled by the clerk herein and in the companion case, civil action no. 2303, this division, at a convenient time. Superceding the memorandum opinion and order herein of April 2, 1969. Vines v. United States Fidelity & Guaranty Company, D.C.Tenn. (1967), 267 F.Supp. 436, cited by the plaintiff, is in-apposite because an employee covered by the Tennessee workmen’s compensation law has a direct action for benefits thereunder against his employer’s insurer. T.C.A. § 50-1209." }, { "docid": "7483492", "title": "", "text": "$10,000 exclusive of interest and costs. 28 U.S.C. §§ 1441, 1332. 28 U.S.C. § 1332(c) provides: “(c) For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business: Provided further, that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business.” (Emphasis supplied.) The Receiver has moved to remand this action to the state court on the ground that it is a “direct action against the insurer [Federal] of a policy or contract of liability insurance, * * * to which action the insured [the Receiver] is not joined as a party defendant * * On this literal reading of the statute the Receiver asserts that Federal should be “deemed a citizen of the State” of Delaware “of which the Receiver is a citizen” within the meaning of 28 U.S.C. § 1332(c) and concludes that diversity of citizenship is lacking between the plaintiff and the defendant. The Court disagrees. The legislative history of 28 U.S.C. § 1332(c) indicates that Congress was concerned with the large volume of diversity litigation in those states which permitted direct actions by injured persons against liability insurance carriers of tortfeasors without joining the insured as a party defendant. U. S. Congressional & Administrative News, 1964, pp. 2778 et seq. Courts which have construed § 1332(c) have uniformly held that Congress intended the word “direct” to limit the word “action” so that its impact is narrowed to those situations in which an injured party is permitted to sue, directly and without joinder of the tortfeasor, the tortfeasor’s liability insurer without first obtaining a judgment" }, { "docid": "17031404", "title": "", "text": "ORDER DAUGHERTY, Chief Judge. This is an action arising out of an auto accident in Logan County, Oklahoma, in which Plaintiff seeks recovery under the uninsured motorist provisions of an insurance policy issued to Plaintiff’s wife by Defendant. Plaintiff originally brought this action in the District Court of Oklahoma County and Defendant removed the case to this Court alleging that diversity jurisdiction exists as Plaintiff is a Texas resident and citizen and Defendant is an Illinois corporation with its principal place of business in Illinois and the amount in controversy exceeds $10,000.00. Defendant subsequently filed a Motion for Consolidation in which Defendant seeks to consolidate this case for trial with Case No. CIV-77-0026-D which arose out of the same accident that gave rise to the instant case. However, prior to entertaining Defendant’s Motion, the Court requested a Brief concerning the Court’s jurisdiction from all parties in these two actions. In his Brief filed at the Court’s request, Plaintiff asserts that this case is an action brought directly against Plaintiff’s insurance carrier based on the holding of Keel v. MFA Insurance Co., 553 P.2d 153 (Okl. 1976), and that as Plaintiff is a Texas citizen, Defendant is deemed to be a Texas citizen under 28 U.S.C. § 1332(c) so that this Court lacks jurisdiction and this case should therefore be remanded to the District Court of Oklahoma County. In its Brief, Defendant contends that the “direct action” provision of 28 U.S.C. § 1332(c) was intended to apply to the situation where one person is allowed to sue the insurer of a second person without joining said second person and does not apply to a suit brought by an insured against his own insurer under the uninsured motorist provisions of the policy. 28 U.S.C. § 1332(c) provides as follows: “For the purposes of this section and section 1441 of this title, a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business: Provided further, That in any direct action against the insurer of" }, { "docid": "10304512", "title": "", "text": "MEMORANDUM AND ORDER NICKERSON, District Judge. Plaintiff brought this action in the Supreme Court, Queens County, for payment allegedly due under his health insurance policy with defendant. Defendant removed the action, pursuant to 28 U.S.C. § 1441, alleging diversity between the parties and an amount in controversy in excess of $50,-000. Plaintiff moves to remand on the grounds that under 28 U.S.C. § 1332(c) this court has no jurisdiction. Under 28 U.S.C. § 1441, a “civil action brought in a State court of which the district courts of the United States have original jurisdiction” “may be removed by the defendant” to the appropriate district court. Plaintiff does not dispute that the parties are diverse and that the amount in controversy exceeds $50,000. Plaintiff argues that under 28 U.S.C. § 1332(c) the defendant insurance company is deemed to be a citizen of the state of which plaintiff is a citizen and that thus this court has no jurisdiction. That section provides in pertinent part: [For purposes of diversity and removal], a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business: Provided further, That in any direct action against the insurer of a policy or contract of liability insurance ... to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business, (emphasis supplied) Plaintiff argues that, within the meaning of the quoted language, this is a direct action on a “liability” insurance contract against an insurer in which the “insured” has not been joined as a defendant. Congress enacted the proviso in section 1332(c) to alleviate federal court calendar conges tion in states allowing an injured plaintiff to sue a tortfeasor’s insurer directly without suing the insured. Courts in this circuit appear not to have ruled on the contention made by plaintiff." }, { "docid": "2840147", "title": "", "text": "40 of the amended complaint. Defendants contend that Section 1332 (c) of the Judicial Code [28 U.S.C. § 1332(c)] applies to plaintiff; plaintiff and defendants have their principal place of business in New York; and this Court thus lacks subject matter jurisdiction in that all of the parties are New York citizens within the meaning of Section 1332 of the Judicial Code. Plaintiff argues that as an alien it can sue “defendants of the United States” in this district; Section 1332(c) does not apply to alien corporations; and even if it does, as a matter of fact, its principal place of business is in Liberia. THE STATUTE § 1332 Diversity of citizenship; amount in controversy; costs (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between- — • (1) citizens of different States; (2) citizens of a State, and foreign states or citizens or subjects thereof; and (3) citizens of different States and in which foreign states or citizens or subjects thereof are additional parties. (b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $10,-000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff. (c) For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business: Provided further, That in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall" }, { "docid": "19314426", "title": "", "text": "OPINION AND ORDER REMANDING CASE TO THE CIRCUIT COURT FOR THE COUNTY OF WAYNE, STATE OF MICHIGAN CORNELIA G. KENNEDY, Chief Judge. Plaintiff Jackie McMurry was injured in an automobile accident that occurred June 12, 1977, while she was a passenger in an automobile driven and owned by one L. C. King. Plaintiff, who is a Michigan resident, filed suit in the Wayne County Circuit Court under the Michigan No-Fault Insurance Act, Mich.Comp.L.Ann. §§ 500.3101— 500.3179 against defendant, Prudential Property and Casualty Insurance Company, the insurer of King’s automobile, alleging that it had failed to reimburse her for all of her medical expenses incurred on account of injuries sustained in the June 1977 accident and that its failure to pay those expenses was willful and wanton. Defendant insurer, which is incorporated in New Jersey and has its principal place of business in that state, removed the action to this court, asserting diversity of citizenship and the requisite jurisdictional amount in controversy. On August 31, 1978, this Court ordered the defendant to show cause why this suit should not be remanded to state court on the grounds that under direct action proviso to 28 U.S.C. § 1332(c) there is no federal jurisdiction, since absent the No-Fault Insurance Act, plaintiff would have the right to sue King directly for the same damages she seeks in this action. The defendant filed a timely reply, and the Court must now determine whether it does have jurisdiction to hear the case. In order to do so, the Court must consider the application of the proviso to 28 U.S.C. § 1332(c) to this case. In 1964 Congress amended 28 U.S.C. § 1332(c) in order to limit federal jurisdiction in certain cases involving insurance companies. It added the following proviso: Provided further, That in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by" }, { "docid": "17849958", "title": "", "text": "ORDER CARR, District Judge. This is a declaratory judgment action in which the plaintiff, who was injured in an automobile accident, has sued his employer’s insurance carrier, seeking uninsured/underinsured motorists (UM/UIM) coverage. The carrier, which is neither incorporated in nor has its principal place of business in Ohio, removed the suit from the Fulton County, Ohio, Court of Common Pleas, where it had been initiated, to this court. Pending is plaintiffs motion for remand. For the reasons that follow, the motion for remand shall be granted. Plaintiff bases his remand motion on 28 U.S.C. § 1332(c)(1), which provides: a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business. (Emphasis supplied). The insured (the Board of Education for the Toledo City School District) has not been joined in this case, so the first prerequisite mandated by § 1332(c)(1) has been met. The parties disagree about the other two requirements: namely, whether plaintiffs suit against his employer’s insurance company is a “direct action,” and, even if so, whether the policy on which plaintiffs claim is based is a “policy or contract of liability insurance.” If these requirements are met, § 1332(c)(1) requires remand to the state court, because the defendant insurance company then will be deemed, by operation of that provision, to be a citizen of Ohio. Because the plaintiff is also a citizen of Ohio, there will be no diversity of citizenship, and thus, no jurisdiction in this court. With regard to the issue of whether a claim such as that being raised here constitutes direct action," }, { "docid": "12291210", "title": "", "text": "ORDER WALTER S. SMITH, Jr., District Judge. Came on this date for consideration the Plaintiff’s Motion for Remand. The Court, having considered said motion, finds that it lacks merit and should be denied. Background Plaintiff, Pamela Barton, had an automobile accident with Tericia Ann Loran whose insurance carrier at the time of the accident was in receivership. Plaintiff filed suit in the 200th Judicial District Court of Travis County, Texas against her insurance company, Allstate Insurance Company, seeking recovery of damages under her uninsured/underinsured motorist coverage with Allstate. In her Original Petition Plaintiff prays for damages to compensate for necessary medical care, pain and suffering, mental anguish, future medical bills and physical impairment. Defendant removed the case to this Court pursuant to diversity jurisdiction under 28 U.S.C. § 1332 and pursuant to the provisions of 28 U.S.C. §§ 1441(a), 1441(b), and 1446. Plaintiffs Motion to Remand Plaintiff moves for remand on two grounds. First, because the amount in controversy does not appear to exceed $50,000, the jurisdictional hurdle of this Court; and second because diversity of citizenship does not exist in this case because this is a direct action against the insurer of a policy of liability insurance and Title 28 U.S.C. § 1332(e)(1) and 28 U.S.C. § 1441 deem the insurer a citizen of the state of which the insured is a citizen. A. Amount in Controversy Plaintiff has not made a liquidated claim for damages in either her original petition or Motion for Remand. Plaintiff did make two pre-suit settlement demands of $50,000.00 and $35,000.00 and in her Motion for Remand has stated the amount in controversy does not appear to exceed $50,000 (Affidavit of Cary Jones, paragraph 7.) However, Plaintiff has unliquidated damages claims which include pain and suffering and under the liability insurance policy the Plaintiff has at least the potential to recover up to $100,000. The total amount sought for damages must appear to a legal certainty to be less than the jurisdictional amount to justify remand of a case to state court. Johns-Manville Sales Corp. v. Mitchell Enterprises, Inc., 417 F.2d 129 (5th Cir.1969)." }, { "docid": "11389409", "title": "", "text": "Illinois, and therefore a citizen of the State of Illinois. However, in this Court’s opinion Allstate is also a citizen of California pursuant to the amended provisions of 28 U.S.C. § 1332(c)(1). As this Court’s determination defeats diversity of the parties, the Court must remand this action back to the Superior Court of the State of California for the County of Los Angeles for lack of subject matter jurisdiction. 28 U.S.C. § 1332(c)(1) provides in pertinent part that: in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business ... This case involves a direct action against an insurer, Allstate, by the insured, Maria Chavarria under the provisions of a liability insurance policy. Thus, for diversity purposes, Allstate must be considered a citizen of the State of which the insured is a citizen pursuant to § 1332(c)(1). Since both Plaintiff and Defendant can be considered citizens of California, diversity of citizenship between the parties is destroyed, thereby depriving this Court of subject matter jurisdiction. Allstate argues that a bad faith action by the insured against an insurer under the provisions of a liability insurance policy does not constitute a direct action for the purposes of § 1332(c)(1), citing Beckham v. Safeco Insurance Company of America, 691 F.2d 898, 901 (9th Cir.1982), in support of this contention. According to Allstate, a direct action is one in which a party suffering injuries or damage for which another is legally responsible is entitled to bring suit against the other’s liability insurer without joining the insured. However, due to a recent Supreme Court opinion discussing § 1332(c)(1) and basic principles of statutory construction, this Court cannot agree with Allstate’s interpretation of 28 U.S.C. § 1332(c)(1). In Northbrook National Insurance Co. v. Brewer, 493" } ]

[ { "docid": "12746423", "title": "", "text": "UNDER ADVISEMENT ORDER RE: “PUT RIGHT” CHARLES G. CASE, II, Bankruptcy Judge. I. Introduction This Order resolves several related matters. First, Einstein/Noah Bagel Corp. (“ENBC”) and Einstein/Noah Bagel Partners, L.P. (“Bagel Partners”), (collectively “Debtors”), filed their “Motion for Order Pursuant to Bankruptcy Rule 3013 Determining Classification Contained in the Debtors’ Joint Plan of Reorganization” on May 10, 2000 (the “Rule 3013 Motion”). The Rule 3013 Motion seeks an order that Debtors have properly classified Bagel Store Development Funding’s (“Bagel Funding”) Unit Rights, which includes Ba gel Funding’s Put Right, in Class 6a (an equity class) of the Bagel Partners’ Chapter 11 case. Second. Bagel Funding filed a Proof of Claim/Interest against both Debtors, to which Debtors and the Official Committee of Unsecured Creditors (the “Committee”) objected, raising essentially the same issues. At bottom, this dispute is about whether the “Put Right” granted to Bagel Funding under the Limited Partnership Agreement (the “Agreement”) gives rise to a claim against, as opposed to an equity security interest in, either or both Debtors. The Court concludes that, under any construction, it does not as to Bagel Partners and that even if it were construed to do so against ENBC, any such claim would be subordinated in the ENBC case to the rights of unsecured creditors pursuant to 11 U.S.C. section 510(b) of the Bankruptcy Code. Therefore, the Rule 3013 Motion will be granted, and the objections to the Proofs of Claim/Interest will be sustained as more fully set out in this Order. II. Facts A. History of the Put Right Boston Chicken, Inc. owns approximately 51% of the outstanding equity of ENBC. The remaining equity is publicly held by approximately 700 registered holders. ENBC in turn owns approximately 77% of the limited partnership units (“Units”) in Bagel Partners. The remaining Units are owned primarily by Bagel Funding. Bagel Funding was an investor in ENBC’s former area developer franchisees, which merged into Bagel Partners in December of 1997. ENBC developed its business of specialty retail bagel stores by concentrating on local markets through a system comprised of several franchised area developers. The area developers" } ]

[ { "docid": "17572175", "title": "", "text": "against property of the estate,” and “any act to ... enforce against property of the debtor any lien”). Further, if Alexandrov is a creditor of the debtors, then he is bound by how their plan treats his claim, making modification of the stay inappropriate. Alexandrov argues that his interest is a real property interest that automatically divests the debtors of title to their home after the redemption period expires (an executory interest), and therefore, modification is appropriate even if the stay applied. Accordingly, whether the interest represented by Alexandrov’s Certificate of Purchase is a claim against debtors’ property — or whether it is instead a kind of real property interest — is the central dispute in this appeal. Fortunately, the bankruptcy code provides a definition of “claim” to guide our analysis. A claim is: (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured. 11 U.S.C. § 101(5) . The Supreme Court has “explained that Congress intended by this language to adopt the broadest available definition of ‘claim.’ ” Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) (quoting Penn. Dept. of Pub. Welfare v. Davenport, 495 U.S. 552, 558, 563-64, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990)). For example, in Johnson the Supreme Court held that a non-recourse mortgage was a claim because, even though the debtor was not personally liable if the mortgage was not paid, the bank could still foreclose on the house (an equitable remedy) and had a right to the proceeds from the sale of the debtor’s home (a right to payment). This was so because “ ‘right to payment’ [means] nothing more nor less than an enforceable obligation....” Id. (citing Davenport, 495 U.S. at 559, 110 S.Ct. 2126)." }, { "docid": "8722911", "title": "", "text": "record, the Carrieri Group failed to establish by a preponderance of the evidence that the Debtor either (i) would not have been rendered insolvent by a redemption, in whole or in part, of the C-l Stock in late March 2002, or (3i) would have had a corporate “surplus” in late March 2002 (after giving effect to the proposed redemption). For this reason, the Claims relating to the second demand for redemption of the C-l Stock are not enforceable against the Debtor and must be disallowed in accordance with § 502(b)(1) of the Bankruptcy Code. C. The Warrants The Bankruptcy Code is clear, warrants are equity securities. See 11 U.S.C. § 101(16)(C). So — does the warrant holder’s contractual right to compel a cash repurchase of the warrant change its proper characterization under the Bankruptcy Code? A number of courts have held that warrants with redemption features remain equity securities until they mature or expire. For example, in In re Search Financial Services Acceptance Corp., 2000 WL 256889 (N.D.Tex. Mar.7, 2000), the court concluded that warrants containing a redemption feature (which did not mature for an additional three years after the filing of the bankruptcy case) were properly characterized and treated as equity interests in the debtor’s plan. ' In reaching this conclusion, the Search Financial court distinguished the holdings in In re Main Street Brewing Co., Ltd., 210 B.R. 662 (Bankr.D.Mass.1997), which had held that where the agreement to repurchase warrants had matured prior to the bankruptcy filing, the resulting debt must be subordinated to the claims of other creditors, and In re Baldwin-United Corp., 52 B.R. 549 (Bankr.S.D.Ohio 1985), which had held that option holders become unsecured creditors only after their right to receive a cash payment matured. Moreover, in In re Einstein/Noah Bagel Corp., 257 B.R. 499 (Bankr.D.Ariz.2000), the court concluded that a put right which had not matured at the time of the commencement of the case was an equity interest. While dicta, the Noah Bagel court further stated, relying on the Search Financial holding, that: even if the Put Right could be construed to contain an" }, { "docid": "272286", "title": "", "text": "its “equity interests” lacks merit, and we affirm the district court’s judgment for the following reasons: (1) the language in the Rights Documents plainly does not provide the Carrieri Group with an independent and enforceable “right to payment” as required to be a “claim” under § 101(5)(A); and (2) even if the Carrieri Claims could be construed as “claims”, they were subject to mandatory subordination under Sections 510(a) or (b) and were properly disallowed. First, a “claim” includes the “right to payment, whether or not such right is reduced to judgment, liquidated, unliqui-dated, fixed, contingent, matured, unma-tured, disputed, undisputed, legal, equitable, secured, or unsecured.” 11 U.S.C. § 101(5)(A) (2000). The touchstone of any “claim” is that there is an “enforceable obligation” of the debtor or an enforceable “right to payment” from the debtor. Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) (stating that “ ‘right to payment’ [means] ... an enforceable obligation....”); In re Andrews, 239 F.3d 708, 710 (5th Cir.2001) (stating that a “claim” is an enforceable right to payment which, in that case, had been reduced to a judgment); In re Einstein/Noah Bagel Corp., 257 B.R. 499, 506-07 (Bankr.D.Ariz.2000). Due to the lack of case law on point from either the Supreme Court or the Fifth Circuit, we find that, as the bankruptcy court did, the reasoning of Einstein is persuasive in this case, even though it is a bankruptcy-level decision from another circuit. In Einstein, Bagel Funding, an equity security holder of the Chapter 11 debtor (Bagel Partners), had a “Put Right” giving it the right to require that its equity interest be purchased by the debtor in cash or stock at the debtor’s option. See Einstein, 257 B.R. at 501-02. It was clear to the Einstein court that the “Put Right” was intended to be a liquidity device, providing Bagel Funding a way to liquidate an otherwise illiquid investment, but clearly did not include a “right to payment” as required by § 101(5). See id. at 506. The “Put Right” only gave Bagel Funding a right to sell" }, { "docid": "15296191", "title": "", "text": "aggregate value of $1,568,781 voted to accept the Plan, and the Lender voted its Class 2 unsecured claim to reject the Plan. As a result, the Debtor notes that if the Lender’s total unsecured claim is not greater than $784,389, Class 2 will be deemed to have accepted the Plan. The Lender also voted to reject the Plan to the extent that it is properly classified in Class 3. Discussion The Debtor’s claim objection raises questions concerning the interpretation and application of several terms in the Loan Documents, under both bankruptcy and nonbankruptcy law. To answer these questions, the Court must consider the applicable Bankruptcy Code definitions, the procedures for objecting to a claim, the status of a claim as secured or unsecured, and New York’s law governing contract interpretation. Definitions Bankruptcy Code Section 101(5) defines a “claim” broadly to mean a “right to payment, whether or not such right is reduced to judgment, liquidated, unliqui-dated, fixed, contingent, matured, unma-tured, disputed, undisputed, legal, equitable, secured, or unsecured....” 11 U.S.C. § 101(5)(A). The Supreme Court has observed that Congress “intended by this language to adopt the broadest available definition of ‘claim.’ ” Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991). As the Second Circuit has explained, “the term ‘claim’ is sufficiently broad to encompass any possible right to payment.” Mazzeo v. United States (In re Mazzeo), 131 F.3d 295, 302 (2d Cir.1997). And “a valid bankruptcy claim depends on (1) whether the claimant possessed a right to payment, and (2) whether that right arose before the filing of the petition.” LTV Steel Co. v. Shalala (In re Chateaugay Corp.), 53 F.3d 478, 497 (2d Cir.), cert. denied, 516 U.S. 913, 116 S.Ct. 298, 133 L.Ed.2d 204 (1995). A “contingent” claim under the Bankruptcy Code refers “to obligations that will become due upon the happening of a future event that was within the actual or presumed contemplation of the parties at the time the original relationship between the parties was created.” Olin Corp. v. Riverwood Int’l Corp. (In re Manville Forest Prods. Corp.), 209" }, { "docid": "272285", "title": "", "text": "such that the partner held both equity interest and claim); IDS Holding Co. v. Madsen (In re IDS Holding Co.), 292 B.R. 233, 238 (Bankr.D.Conn.2003) (holding that a distribution agreement provided shareholder with a claim against the company in addition .to being equity security holder); In re Baldwin-United Corp., 52 B.R. 549, 552 (Bankr.S.D.Ohio 1985) (holding that the corporation granted option holders a “guaranteed” right to a future cash payment in exchange for forbearance from exercising their stock options prior to the acquisition of another company). In Baldwin, the court held that the cash surren der rights under the stock option plan were general unsecured claims because they were guaranteed payments under the Employee’s Stock Option Plan (ESOP) whereas the stock acquisition rights of the same ESOP were treated as equity securities. See Baldwin, 52 B.R. at 552. The Baldwin court’s analysis, asserts the Car-rieri Group, should apply here because it was allegedly guaranteed cash if it redeemed its stock and sold its warrants. The Carrieri Group’s argument that they also hold “claims” independent of its “equity interests” lacks merit, and we affirm the district court’s judgment for the following reasons: (1) the language in the Rights Documents plainly does not provide the Carrieri Group with an independent and enforceable “right to payment” as required to be a “claim” under § 101(5)(A); and (2) even if the Carrieri Claims could be construed as “claims”, they were subject to mandatory subordination under Sections 510(a) or (b) and were properly disallowed. First, a “claim” includes the “right to payment, whether or not such right is reduced to judgment, liquidated, unliqui-dated, fixed, contingent, matured, unma-tured, disputed, undisputed, legal, equitable, secured, or unsecured.” 11 U.S.C. § 101(5)(A) (2000). The touchstone of any “claim” is that there is an “enforceable obligation” of the debtor or an enforceable “right to payment” from the debtor. Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) (stating that “ ‘right to payment’ [means] ... an enforceable obligation....”); In re Andrews, 239 F.3d 708, 710 (5th Cir.2001) (stating that a “claim” is an" }, { "docid": "1478515", "title": "", "text": "debt, thus collection efforts violated the stay. The Court finds that the Association’s focus on property revesting in the Debtor is misplaced because the scope of the automatic stay is broader than merely protecting property of the estate. For example, § 362(a)(5) prohibits a creditor from engaging in “any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case.... ” 11 U.S.C. § 362(a)(5)(emphasis added). Similarly, § 362(a)(6) prohibits “any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case....” 11 U.S.C. § 362(a)(6)(emphasis added) In order to determine if the Respondents violated either of those subsections the court must determine if the post-petition condominium assessments are a claim that arose before the commencement of the case. This appears to be a question of first impression in this district. The Bankruptcy Code defines a “claim” as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” 11 U.S.C. § 101(5)(A). The United States Supreme Court has recognized that “Congress intended by this language to adopt the broadest available definition of ‘claim.’ ” Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) (citations omitted)(concluding that a surviving mortgage interest is a “claim” under § 101(5)). While “claim” is defined by the Bankruptcy Code under § 101(5), it does not define when a “right to payment” arises. The Supreme Court, however, has “concluded that ‘right to payment’ [means] nothing more nor less than an enforceable obligation.” Id. (citation omitted) (alteration in original). In interpreting § 101(5) of the Bankruptcy Code, the Court of Appeals for the Third Circuit has held that the threshold requirement for determining whether a creditor has a “claim” for bankruptcy purposes is whether the creditor has a cause of action under state law. Jones v. Chemetron Corp., 212 F.3d 199, 206 (3d Cir.2000) (citing Matter of" }, { "docid": "8722898", "title": "", "text": "the Carrieri Group either hold (i) claims against the Debtor, (ii) equity securities of the Debtor, or (in) both. Thus, the starting point in the Court’s analysis is § 101 of the Bankruptcy Code which contains definitions of both “claim” and “equity security” Section 101(5)(A) defines claim to mean a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” This definition of claim is intentionally broad. See In re Andrews, 239 F.3d 708, 710 (5th Cir.2001) (section 101(5) contains the “broadest possible definition of the term ‘claim’ [which] captures all legal obligations of the debtor, no matter how remote or contingent”). Section 101(16) defines equity security to mean, as relevant here, “share in a corporation,” see 11 U.S.C. § 101(16)(A), or “warrant or right, other than a right to convert, sell, or subscribe to a share, security, or interest of a [corporation],” see 11 U.S.C. § 101(16)(C). In accordance with § 101(16)(A), the C-1 Stock is an equity security. However, for the reasons explained more fully below, the Court concludes that members of the Carrieri Group held contingent and unma-tured claims against the Debtor for redemption of the C-l Stock on the Petition Date. But, those claims are not allowable against the Debtor in accordance with § 502(b)(1) of the Bankruptcy Code. Because of prior precedent in this District, the Court concludes that the Warrants and the right to compel repurchase of the Warrants are equity securities in accordance with § 101(16)(C) of the Bankruptcy Code until the obligation to repurchase matured, at which time they became claims. If this binding precedent did not exist, the Court would conclude that while the Warrants are equity securities in accordance with § 101(16)(C), the contractual right to compel the Debtor’s repurchase of the Warrants (as set forth in the Warrants) gives rise to contingent and unma-tured claims against the Debtor as of the Petition Date. But, those claims are not allowable against the Debtor in accordance with § 502(b)(1) of the Bankruptcy Code. B. The C-l" }, { "docid": "19951124", "title": "", "text": "Bankruptcy Code if the agency has obtained a monetary judgment entered in an SEC enforcement action. The Bankruptcy Appellate Panel of the Ninth Circuit and several bankruptcy courts have, however, concluded that the SEC can in such circumstances have standing as a creditor under the Bankruptcy Code. See, e.g., SEC v. Cross (In re Cross), 218 B.R. 76, 78-80 (B.A.P. 9th Cir.1998); SEC v. Hodge (In re Hodge), 216 B.R. 932, 935-36 (Bankr.S.D.Ohio 1998); SEC v. Kane (In re Kane), 212 B.R. 697, 700 (Bankr.D.Mass.1997); SEC v. Maio (In re Maio), 176 B.R. 170, 171-72 (Bankr.S.D.Ind.1994). In concert with these tribunals, we hold that in the present case, the SEC is a “creditor” for purposes of the Bankruptcy Code, assuming the absence of a settlement agreement extinguishing its rights. The Bankruptcy Code’s definition of “creditor” includes an “entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor.” 11 U.S.C. § 101(10)(A). The Code provides that the term “ ‘entity’ includes ... governmental unit,” id. § 101(15), and the Code defines “claim” as a (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured. Id. § 101(5). The Supreme Court has stated that “Congress intended by this language to adopt the broadest available definition of ‘claim’ ” and has held that “ ‘right to payment’ [means] nothing more nor less than an enforceable obligation.” Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) (alteration in original) (one set of internal quotation marks omitted) (quoting Penn. Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552, 559, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990)). Applying these provisions to the present case, we see that" }, { "docid": "7632076", "title": "", "text": "statutory interpretation are conclusions of law reviewed de novo. United States v. Springer, 609 F.3d 885, 889 (6th Cir.2010); In re Westfall, 599 F.3d 498, 501 (6th Cir.2010). III. DISCUSSION The sole issue presented on this appeal is whether Debtor’s personal liability for condominium fees assessed after the filing of a petition for relief may be discharged in a Chapter 13 bankruptcy proceeding, pursuant to 11 U.S.C. § 1328(a). With certain exceptions not relevant here, § 1328(a) discharges pre-petition debts upon confirmation and completion of a bankruptcy plan. Debts arising after the petition date, however, are not generally dischargeable in bankruptcy. 11 U.S.C. §§ 101(5), (12), & 1328(a); In re Hester, 63 B.R. 607, 609 (Bankr.E.D.Tenn.1986). Therefore, the appeal ultimately depends upon whether the post-petition assessments of condominium fees constitute dis-chargeable pre-petition debts or nondis-chargeable post-petition debts. Under the Bankruptcy Code, “as soon as practicable after completion by the debtor of all payments under the [Chapter 13] plan ... the court shall grant the debtor a discharge of all debts provided for by the plan.” 11 U.S.C. § 1328(a). The plan provides for full or partial repayment of “debts” — a defined term under the Code. A “debt” means simply “liability on a claim.” 11 U.S.C. § 101(12). A “claim” is in turn defined as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” 11 U.S.C. § 101(5). Although a “right to payment” is not defined, the language has been read to require “the broadest available definition of ‘claim.’ ” Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991). It does not follow, however, that the defini tion of “claim” is unbounded. To the contrary, there is no claim without a “right to payment,” however uncertain. As a “ ‘right to payment’ [means] nothing more nor less than an enforceable obligation,” a claim must ultimately find some foundation in an obligation that a creditor — at some point in time and under some conditions— could enforce" }, { "docid": "8335083", "title": "", "text": "included in these bankruptcy proceedings. The 1992 Plan believes that Coal Act obligations which have not accrued or been assessed against the Debtors are not affected by the bankruptcy, or in other words are not claims of these bankruptcy estates, while the UMWA asserts that its successorship rights pursuant to the collective bargaining agreement, entered into by these Debtors pre-petition, is not a right which may be reduced to judgment if the Debtors violate such provision. The Bankruptcy Code in § 101 provides a comprehensive definition of claim, which states: (5) “claim” means— (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured. 11 U.S.C. § 101(5). One of the leading cases discussing the broad scope of the definition of claim is United States v. LTV Corporation (In re Chateaugay Corporation), 944 F.2d 997 (2d Cir.1991). An issue presented before the Second Circuit was whether unincurred Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) response costs for pre-petition releases was a claim within the bankruptcy proceeding. The Second Circuit in quoting the legislative history of this Bankruptcy Code section stated “[b]y this broadest possible definition ... the bill contemplates that all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case.” Id. at 1003, citing, H.R.Rep. No. 595, 95th Cong., 2d Sess. 309 (1978), replanted in 1978 Code Cong. Admin. News 5787, 5963, 6266. Aso, see Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 2153- 54, 115 L.Ed.2d 66 (1991); Pennsylvania Dep’t of Public Welfare v. Davenport, 495 U.S. 552, 558, 563-564, 110 S.Ct. 2126, 2130-2131, 2133-2134, 109 L.Ed.2d 588 (1990); Ohio v. Kovacs, 469 U.S. 274, 279, 105 S.Ct. 705, 707-708, 83 L.Ed.2d 649" }, { "docid": "272287", "title": "", "text": "enforceable right to payment which, in that case, had been reduced to a judgment); In re Einstein/Noah Bagel Corp., 257 B.R. 499, 506-07 (Bankr.D.Ariz.2000). Due to the lack of case law on point from either the Supreme Court or the Fifth Circuit, we find that, as the bankruptcy court did, the reasoning of Einstein is persuasive in this case, even though it is a bankruptcy-level decision from another circuit. In Einstein, Bagel Funding, an equity security holder of the Chapter 11 debtor (Bagel Partners), had a “Put Right” giving it the right to require that its equity interest be purchased by the debtor in cash or stock at the debtor’s option. See Einstein, 257 B.R. at 501-02. It was clear to the Einstein court that the “Put Right” was intended to be a liquidity device, providing Bagel Funding a way to liquidate an otherwise illiquid investment, but clearly did not include a “right to payment” as required by § 101(5). See id. at 506. The “Put Right” only gave Bagel Funding a right to sell its interest at a specified price with the payment in cash or stock decided by the debtor, making this set of rights an “equity security” under § 101(16)(C). See id. Furthermore, even if the “Put Right” could be construed to contain an obligatory cash payment, the Einstein court held that this would not change it from an equity security to a claim. See id. On the petition date, the right to receive the cash or stock would not have matured because the “Put Right” itself had not become exercisable. See id. In this case, the language in the Rights Documents plainly does not include an independent “right to payment.” The Rights Documents contained a redemption provision that required the Debtor to redeem the C-l Stock “to the extent it has legally available funds.” The Debtor was also required to repurchase the Warrants at an agreed price if it had “legally available funds.” Both of these phrases were negotiated for by the Debtor for a reason. It is telling that this phrase is not found in" }, { "docid": "1297826", "title": "", "text": "II. DISCUSSION Section 101(5) of the Bankruptcy Code defines a “claim” broadly to mean a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured....” 11 U.S.C. § 101(5)(A); see also Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) (Congress “intended by this language to adopt the broadest available definition of ‘claim.’ ”) (citations omitted). “[T]he term ‘claim’ is sufficiently broad to encompass any possible right to payment.” Mazzeo v. United States (In re Mazzeo), 131 F.3d 295, 302 (2d Cir.1997). “[A] valid bankruptcy claim depends on (1) whether the claimant possessed a right to payment, and (2) whether that right arose before the filing of the petition.” LTV Steel Co., Inc. v. Shalala (In re Chateaugay Corp.), 53 F.3d 478, 497 (2d Cir.1995). Further, the Second Circuit has recognized that “[a] claim will be deemed to have arisen pre- petition if the relationship between the debtor and the creditor contained all of the elements necessary to give rise to a legal obligation — a right to payment — under the relevant non-bankruptcy law.” Ogle v. Fidelity & Deposit Co. of Md., 586 F.3d 143, 147 (2d Cir.2009) (citation and internal quotation marks omitted). The Supreme Court has stated that “ ‘[creditors’ entitlements in bankruptcy arise in the first instance from the underlying substantive law creating the debtor’s obligations, subject to any qualifying or contrary provisions of the Bankruptcy Code.’ ” Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443, 444, 127 S.Ct. 1199, 167 L.Ed.2d 178 (2007) (quoting Raleigh v. Illinois Dept. of Revenue, 530 U.S. 15, 20, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000)). This “principle requires bankruptcy courts to consult state law in determining the validity of most claims.” Id. Thus, claims that are “enforceable under applicable state law will be allowed in bankruptcy unless they are expressly disallowed.” Id. at 452, 127 S.Ct. 1199 (citing 11 U.S.C. § 502(b)). Section 501(a) of the Bankruptcy Code provides" }, { "docid": "16503844", "title": "", "text": "an easement or any other right arising under the law of real property. Assessments are a “debt,” a term within the coverage of the discharge in Bankruptcy Code Section 524. See In re Rostech, 899 F.2d at 696, and its progeny, cited supra. Section 101(12) defines “debt” as “liability on a claim.” Section 101(5) defines a “claim” as: (A) A right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (B) A right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured. Congress intended by the Section 101(5) language to adopt a broad definition of “claim.” Johnson v. Home State Bank, 501 U.S. 78, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991). According to Johnson, the terminology “right to payment” within the definition of “claim” means nothing more nor less than an enforceable obligation. Id. at 83, 111 S.Ct. 2150. The issue in Johnson was whether a debtor could include a mortgage lien in a Chapter 13 bankruptcy reorganization plan once the personal obligation secured by the mortgaged property had been discharged in a Chapter 7 proceeding. Id. at 80, 111 S.Ct. 2150. The creditor argued that the Bankruptcy Code does not allow a debtor to include a mortgage in a Chapter 13 plan if the personal liability on the mortgage had been discharged in Chapter 7. Id. at 81, 111 S.Ct. 2150. The Supreme Court rejected the creditor’s argument and held that the mortgage lien in such a circumstance remains a “claim” against the debtor that can be rescheduled under Chapter 13 following a Chapter 7 discharge. Id. at 84, 111 S.Ct. 2150. Therefore, it is possible for a mortgage lien to be a “claim” for purposes of Section 101(5), but not be subject to the Chapter 7 discharge. As pointed out by the Supreme Court: Even after the debtor’s personal obligations have" }, { "docid": "10099724", "title": "", "text": "claim in the 1987 bankruptcy. The debtor’s 1986 tax labilty was a prepetition debt in the bankruptcy case filed on February 9, 1987. Debt means labilty on a claim. 11 U.S.C. § 101(12). See Pennsylvania Dep’t of Public Welfare v. Davenport, 495 U.S. 552, 558, 110 S.Ct. 2126, 2130-81, 109 L.Ed.2d 588 (1990). Claim means “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, un-matured, disputed, undisputed, legal, equitable, secured or unsecured.” 11 U.S.C. § 101(5)(A). Congress intended by this language to adopt “the broadest available definition of ‘claim.’” Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 2154, 115 L.Ed.2d 66 (1991). For purposes of priority (and nondis-chargeability) of taxes, “claim” includes un-matured and unliquidated rights to payment for “a taxable year ending on or before the date of the filing of the petition....” 11 U.S.C. § 507(a)(8)(A)(i). See Raiman v. State Bd. of Equalization (In re Raiman), 172 B.R. 933, 940 (9th Cir. BAP 1994) (“taxable year” fixes reference point for taxes entitled to priority). This debtor’s 1986 tax year ended on December 31, 1986, before the first bankruptcy petition. Because “claim” includes unma-tured and unliquidated rights to payment, it is not outcome determinative that the debt- or’s 1986 tax return was not yet due at the petition on February 9, 1987. Hypothetical transactions after the petition but before April 15,1987 that could affect the amount of tax owed could not defeat the existence of a claim for 1986 taxes at the petition. United States v. Chavis (In re Chavis), 47 F.3d 818 (6th Cir.1995), is not contrary. Chavis holds that untimely filed tax claims are disallowed in a Chapter 13 case. The petition in Chavis was filed on May 23,1991. In a note, the Sixth Circuit said this about tax claims for the 1991 tax year: Because the 1991 tax liability was not due until 1992, the 1991 tax liability is a non-dischargeable post-petition debt (pursuant to 11 U.S.C. §§ 1305(a)(1) and 1328(a)) and is not at issue. Chavis, 47 F.3d at 819 n. 4. These" }, { "docid": "6379134", "title": "", "text": "have the better of the argument. The Bankruptcy Code defines a “creditor” as an “entity that has a claim against the debtor that arose before the order for relief concerning the debtor.” 11 U.S.C. § 101(10). A “claim,” in turn, is defined as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, or unsecured,” 11 U.S.C. § 101(5)(A), or as a “right to an equitable remedy for breach of performance if such breach gives rise to a right to payment,” 11 U.S.C. § 101(5)(B). So far, so good, even NIC would admit. But a creditor, NIC asserts, is “an entity that can show that the debtor owes or potentially owes payment to it.” (NIC Reply at 3). NIC insists that it has no “right to payment” from the debtors (or any equitable remedy against them) and never had. NIC is mistaken. The Code’s definition of claim is “expansive.” Pennsylvania Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552, 558, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990). In section 101(5), Congress adopted “the broadest available definition of ‘claim,’ ” Johnson v. Home St. Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991), contemplating that “all legal obligations of the debtor ... will be able to be dealt with in the bankruptcy case,” Pennsylvania Dep’t of Pub. Welfare, 495 U.S. at 558, 110 S.Ct. 2126 (internal quotation omitted); see also In re Knight, 55 F.3d 231, 234 (7th Cir.1995). “Right to payment” thus means “nothing more nor less than an enforceable obligation.” Pennsylvania Dep’t of Pub. Welfare, 495 U.S. at 559, 110 S.Ct. 2126. Among those obligations is one enforceable solely against the debtor’s property — an in rem right. Section 102(2) makes clear that a “claim against the debt- or” includes a “claim against the property of the debtor.” 11 U.S.C. § 102(2). Citing section 102(2), and noting the Code’s broad definition of “claim,” the Court in Johnson held that a mortgage holder had a “claim” against the debtor-mortgagor even though the debtor’s personal" }, { "docid": "14409290", "title": "", "text": "filing a plan, whether within the original or extended redemption period, is ineffective because the plan can only affect claims. Scorpion’s Claim Section 101(5) of the Bankruptcy Code defines a claim as (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured. The Supreme Court has discussed the scope of a claim on at least two occasions, in Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990) and Johnson v. Home State Bank, 501 U.S. 78, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991). In both cases, the Supreme Court noted that Congress took a broad view of “claim”, since the legislative history stated the definition of “claim” was to be the broadest possible. Johnson, 501 U.S. at 83, 111 S.Ct. 2150. In the Davenport case, the Supreme Court considered whether an obligation to pay criminal restitution was a “debt” under the Bankruptcy Code and therefore dischargeable. A “debt” under 11 U.S.C. § 101(12) means liability on a claim. The court held the meaning of “debt” and “claim” are coextensive. 495 U.S. at 558, 110 S.Ct. 2126. The court then analyzed the meaning of “claim”. The Pennsylvania Department of Welfare argued the debtor could not be forced to pay pursuant to the typical debtor/creditor remedies. But the Supreme Court held that was not the determining factor. Rather, the question for the court was whether the debtor had an enforceable obligation. Id. Although the obligation could not be enforced in civil proceedings, the obligation was enforceable “by the substantial threat of revocation of probation and incarceration.” Id. at 559, 110 S.Ct. 2126. The court found the criminal restitution an enforceable obligation and therefore a claim. Next, in Johnson, the court held that a lien on" }, { "docid": "2925746", "title": "", "text": "case is inapposite and the FDCPA is inapplicable. No reported decision has held otherwise. Finally, even if the FDCPA did apply, it is far from clear that the filing of a claim whose enforcement is barred under state law would violate its provisions. Under the Bankruptcy Code, the term ‘claim’ means — (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliqui-dated, fixed, contingent, matured, unma-tured, disputed, undisputed, legal, equitable, secured, or unsecured. 11 U.S.C. § 101(5). In Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) the Supreme Court explained that, “Congress intended by this language to adopt the broadest available definition of ‘claim.’ ” A claim in bankruptcy is deemed valid simply by virtue of a proof of claim filed in accordance with 11 U.S.C. § 501 unless — a “party in interest” objects to the claim. 11 U.S.C. § 502. The “evidentiary effect” of filing a proof of claim “constitute[s] prima facie evidence of the validity and amount of the claim.” Fed. R. Bankr.P. 3001(f). Accordingly, absent a timely objection, the claim will be allowed. Rule 3007 provides the procedure for objecting to a claim: Fed. R. Bankr.P. 3007. And § 502(b)(2) provides, inter alia, that a claim will not be allowed if it is “unenforceable against the debtor.” However, the Debtor never filed such an objection to either of LVNV’s proofs of claim. An objection to the allowance of a claim shall be in writing and filed. A copy of the objection with notice of the hearing thereon shall be mailed or otherwise delivered to the claimant, the debtor or debtor in possession and the trustee at least 30 days prior to the hearing. The Debtor nevertheless contends LVNV’s claims are invalid and unenforceable because the debts upon which they are based are stale. They may be unenforceable, but they are not invalid. In Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979), the Supreme Court explained that state law defines property interests including the validity of claims" }, { "docid": "20576552", "title": "", "text": "had asserted that his objection to confirmation of the Plan constituted a withdrawal of his Claim and Amended Claim—he has not—the Court would have deemed him to hold a secured claim in connection with his right to be paid the redemption amount. In determining whether a party holds a secured claim against a debtor, courts first look to the definition of “claim” under the Bankruptcy Code in § 101(5), which provides that a claim is a; (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured. 11 U.S.C. § 101(5). Congress intended “claim” to have the “broadest possible definition ” so that “all legal obligations of the debtor, no matter how remote or contingent, will be able, to be dealt with in the bankruptcy case.” In re Grossman’s Inc., 607 F.3d 114, 121 (3d Cir.2010) (quoting H.R.Rep. No. 95-595, pt. 3, at 309 (1977)). The Supreme Court has opined that claims are to be defined in the “broadest available” terms, FCC v. NextWave Pers. Commc’ns Inc., 537 U.S. 293, 302, 123 S.Ct. 832, 154 L.Ed.2d 863 (2003) (quoting Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991)), and has characterized a claim as “nothing more nor less than an enforceable obligation,” Pa. Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552, 559, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990). In In re M. Frenville Co., 744 F.2d 332 (3d Cir.1984), the Third Circuit initially adopted the “accrual test” for determining when a claim arises, and held that “the existence of a valid claim depends on: (1) whether, the claimant possessed a right to payment; and (2) when that right arose,” as determined under relevant 'nonbankruptcy law. In re Grossman’s Inc., 607 F.3d at 119" }, { "docid": "14776615", "title": "", "text": "any debt that arose before the date of such confirmation” (emphasis supplied). The word “debt” is defined in 11 U.S.C. § 101(12) as “liability on a claim ” (emphasis supplied). The word “claim” is defined in section 101(5) to mean: “(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equi table remedy is reduced to judgment, fixed, contingent, matured, unma-tured, disputed, undisputed, secured, or unsecured” Numerous decisions in many jurisdictions have expounded at length upon the extraordinary breadth with which Congress intended to invest the term “claim” by means of this definition. Grady v. A.H. Robins Co., Inc., 839 F.2d 198, 200 (4th Cir.1988) (citing Ohio v. Kovacs, 469 U.S. 274, 279, 105 S.Ct. 705, 707-08, 83 L.Ed.2d 649 (1985); Robinson v. McGuigan, 776 F.2d 30, 34 (2d Cir.1985), rev’d on other grounds sub nom., Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986); Matter of M. Frenville Co., Inc., 744 F.2d 332, 336 (3d Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985); In re Edge, 60 B.R. 690, 692-94 (Bankr.M.D.Tenn.1986); In re Johns-Manville Corp., 57 B.R. 680, 686-88 (Bankr.S.D.N.Y.1986)). The leading decision in this Circuit with respect to the subject matter of this motion is In re Chateaugay Corp., 944 F.2d 997, 1003 (2nd Cir.1991), where the Court of Appeals said: “Congress unquestionably expected this definition to have wide scope. ‘By this broadest possible definition ... the bill contemplates that all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case.’ H.R.Rep. No. 595, 95th Cong., 2d Sess. 309 (1978), reprinted in 1978 U.S.Code Cong. & Admin. News 5787, 5963, 6266. See also Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 2154, 115 L.Ed.2d 66 (1991); Pennsylvania Dep’t of" }, { "docid": "2925745", "title": "", "text": "may have run on any cause of action to collect on the debts in question); and B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 235-36 (9th Cir. BAP 2008) (holding that Congress did not intend for the FDCPA to apply in the context of proofs of claim filed in bankruptcy). The Debtor ostensibly ignores this consensus and instead bases his FDCPA claim on a brief citation to the Seventh Circuit’s decision in Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir.2004) in which a FDCPA claim was permitted to proceed. But Randolph was not a case about the filing of invalid or stale proofs of claim — in fact, it was not about proofs of claim at all. Randolph concerned the consolidation of separate actions brought by three Chapter 13 debtors who alleged violations of the FDCPA by debt collection agencies that had commenced collection efforts on discharged debts using unfair practices — including by contacting the debtors directly even though they were each represented by counsel. Id. at 728-29. Accordingly, the Randolph case is inapposite and the FDCPA is inapplicable. No reported decision has held otherwise. Finally, even if the FDCPA did apply, it is far from clear that the filing of a claim whose enforcement is barred under state law would violate its provisions. Under the Bankruptcy Code, the term ‘claim’ means — (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliqui-dated, fixed, contingent, matured, unma-tured, disputed, undisputed, legal, equitable, secured, or unsecured. 11 U.S.C. § 101(5). In Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) the Supreme Court explained that, “Congress intended by this language to adopt the broadest available definition of ‘claim.’ ” A claim in bankruptcy is deemed valid simply by virtue of a proof of claim filed in accordance with 11 U.S.C. § 501 unless — a “party in interest” objects to the claim. 11 U.S.C. § 502. The “evidentiary effect” of filing a proof of claim “constitute[s] prima facie evidence of the validity and amount of the" } ]

[ { "docid": "23131591", "title": "", "text": "PER CURIAM. Plaintiff in error was convicted upon each of two counts of an indictment under the National Prohibition Act (41 Stat. 305); the first count charging the unlawful manufacture and possession of intoxicating liquors, and the second charging the possession of certain implements and materials designed for the manufacture of intoxicating liquors for unlawful use. The judgment covered conviction under both counts. The charges contained in the respective counts grow out of substantially the same transaction. In each the charge is 'laid as on or about May 25th. The testimony principally relied upon for conviction as to each count related to the finding in the basement of the residence of plaintiff in error, on May 25th, of certain manufactured liquors and certain utensils and materials for such manufacture. The sole contention of plaintiff in error made here (although stated in two forms) is that she has been twice punished for a single offense, invoking in support of that contention divers holdings of state courts under what is called the “same transaction” rule. This broad rule, however, does not prevail in the courts of the United States, wherein it is well settled that it is competent for Congress to create separate and distinct offenses growing out of the same transaction; the test of identify of offense being whether the same evidence is required to sustain each. In Carter v. McClaughry, 183 U. S. 365, 22 Sup. Ct. 181, 46 L. Ed. 236 (habeas corpus to review conviction by court-martial), it was held that a charge of conspiracy to defraud and a charge of causing false and fraudulent claims to be made were separate and distinct offenses,, and separately punishable; “one requiring certain evidence, which the other did not.” The court said: “The fact that both charges related to and grew out of one transaction made no difference.” 183 U. S. 394, 395, 22 Sup. Ct. 193, 46 L. Ed. 236. In Burton v. United States, 202 U. S. 344, 380, 381, 26 Sup. Ct. 688, 698 (50 L. Ed. 1057, 6 Ann. Cas. 392), it was held that a plea" } ]

[ { "docid": "21741632", "title": "", "text": "BRYAN, Circuit Judge. Fred Schulte was convicted of manufacturing liquor and having in his possession apparatus designed for the manufacture thereof, in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 1013814 et seq.). He assigns as error the court’s refusal to suppress the testimony of two prohibition officers, who went upon his premises without a search warrant and there found where he had been operating a still and manufacturing whisky in one end of a small building, the other end of which was cut off by a partition and used as a garage. This building was separate and apart from defendant’s dwelling house. The officers testified that they detected the odor of mash before they entered defendant’s premises; that they then went into his back yard, where he was, and where they found a pool of mash; that one of them asked defendant what he was doing there, and he replied that he “was making whisky,” and voluntarily took them into the building where the still was. No search of defendant’s dwelling house was made or even attempted. Under these eireiimstanees, proof of the search and seizure was admissible, even though the doubtful concession be made that the officers were trespassers. Hester v. United States, 44 S. Ct. 445, 265 U. S. 57, 68 L. Ed. 898. Defendant relies on Agnello v. United States, 46 S. Ct. 4, 70 L. Ed. 1. In that case it was held that the search of Agnello’s premises without a search warrant was unlawful. But the officers invaded Agnello’s dwelling house without á search warrant and without themselves having witnessed a violation of the law. However, the right of the officers to enter without a search warrant the home of Alba, one of the defendants in the cited case, and to seize cocaine the illegal sale of which they saw take place while they were looking through a window of Alba’s house, was upheld, the court saying: “Such searches and seizures naturally and usually appertain to and attend such arrests.” If Alba’s home could be entered without a search warrant" }, { "docid": "14503593", "title": "", "text": "on count 4. While count 2, charging possession of property designed for the manufacture of intoxicating liquor at a certain time and place, is merged with count 3, unlawfully manufacturing intoxicating liquor at the same time and place, and count 1, charging possession of intoxicating liquor from the same liquor manufactured in count 3, or transported in count 4, and merged in either one or both (Reynolds v. United States [C. C. A.] 280 F. 1; Morgan v. United States [C. C. A.] 294 F. 82; Tritico v. United States, 4 F.[2d] 664; Patrilo v. United States [C. C. A.] 7 F.[2d] 804; Rouda v. United States [C. C. A.] 10 F.[2d] 917; Dexter v. United States [C. C. A.] 12 F. [2d] 777), no sentence is resting on either count 1 or 2. “Where conviction is had upon more than one count, the sentence, if it does not exceed that which might be imposed on one count, is good if that count is sufficient.” Kuehn v. United States (C. C. A.) 8 F.(2d) 265; Wetzel v. United States, 233 F. 984, 147 C. C. A. 658. The search was not unreasonable. It was upon open premises. “The special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields. The distinction between the latter and the house is as old as the common law.” Hester v. United States, 265 U. S. 57, 44 S. Ct. 445, 68 L. Ed. 898; Raine v. United States, supra. The officers were more than a quarter of a mile from the premises, smelled fermenting mash and fumes of distilling then in progress, and saw a drunken man approach from the direction of the still. Vaught v. United States (C. C. A.) 7 F.(2d) 370; United States v. Borkowski (D. C.) 268 F. 408; United States v. McBride (D. C.) 287 F. 214. The fact that the officers may have been trespassers does not exclude the evidence, after what they saw, heard and smelled. Raine v. United States, supra; Vaught v. United" }, { "docid": "9367455", "title": "", "text": "this point it is well to note that this ease, as well as United States v. Rembert (D. C.) 284 F. 996, were cited with approval by the Supreme Court in Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409, and that in Byars v. United States, 273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. 520, decided by the Supreme Court January 3, 1927, that court again cited the Temperani Case, so that it seems clear that whatever conflict of authority there may be in the adjudicated eases the principles enunciated in the Temperani and Rembert Cases control. It will be noted that in the Temperani Case the court distinctly held that the mere fact that the odor of alcohol emanated from the premises was insufficient as a predicate for the conclusion that the offense was being committed within the presence of the officer. What would have been the result if the defendant himself had been present, and if the officers knew that he was in the building, does not appear. In Schroeder v. United States (C. C. A.) 14 F.(2d) 500, the facts were as follows: “A prohibition officer was led to inspect the defendant’s house by the strong and penetrating odors of boiling mash and fermentation, which he said were unmistakable and which came directly from the house. The house was situated on a comer. Extending from it was a small room, ‘just like a little ell.’ Into that ell the officer entered through a door which wan closed, but not locked. On entering it he found that it was a mash room. Through an open door he saw into an adjacent larger room, which was used as a still room, and saw the defendant in the active operation of two 80-gallon stills. The room contained 1,200 gallons of mash, 100 gallons of jackass brandy; 12 sacks of sugar, 20 barrels of yeast, and other material used in making intoxicating liquor. Beyond the still room, and connected therewith by a door which was" }, { "docid": "4277348", "title": "", "text": "(leased to another) had been made without a search warrant. The court’s refusal is assigned as error. The question might he pertinent and certainly would require consideration were it not that Chepo disclaimed any interest in the downstairs premises searched and any interest in or knowledge of the goods there seized. His room upstairs was not searched and in it nothing was seized. By that disclaimer he himself showed that no constitutional right of his had been invaded and, therefore, that he is not in a position to attack the search and seizure. Rouda v. United States (C. C. A.) 10 F.(2d) 916; Rosenberg v. United States (C. C. A.) 15 F.(2d) 179; Armstrong v. United States (C. C. A.) 16 F. (2d) 62; Id., 273 U. S. 766, 47 S. Ct, 571, 71 L. Ed. 881; Coon v. United States (C. C. A.) 36 F.(2d) 164, 165. At the trial Chepo was confronted by seven counts of the indictment charging crimes briefly stated as follows: (1) Operating a still without registering the same; (2) carrying on the business of a distiller with intent to defraud the United States of the tax; (3) without giving bond; (4) in a building not authorized by law; (5) without displaying a sign bearing the words “Registered Distillery”; and, Anally, (6) unlawfully manufacturing and (7) unlawfully possessing intoxicating liquor of a prohibited alcoholic content. At the close of the trial Chepo moved not for a directed verdict but that all seven counts he “dismissed.” Regarding this motion as mistakenly named and construing 'it as a motion for a directed verdict, refusal of which, on exceptions, is assigned as error, it will he enough to say that, even if the court were wrong in refusing to direct a verdict of acquittal on the first, second, third and fourth counts for want of evidence, that will not help the appellant because there was enough evidence of the operation of the distillery without a displayed sign under the fifth count and ample evidence of manufacture and possession of liquor under the sixth and seventh counts to submit" }, { "docid": "21520603", "title": "", "text": "public place, where they found men drinking, and then made search of adjoining premises, and found intoxicating liquors in an icehouse connected with the'hotel. This court sustained the right of the government agents to enter the public bar of the hotel and seize the whisky being sold there. A crime was being committed in having the opium in their possession when the officers visited the laundry. Since they detected the plaintiffs in error in the commission of the crime, they had a right to arrest the offenders ,and seize the instrument of the crime. McBride v. United States (C. C. A.) 284 F. 416; Vachina v. United States (C. C. A.) 283 F. 35; Wiggins v. United States (C. C. A.) 272 F. 41. Federal agents may lawfully enter a house where they smell raisins in the process of cooking, and the cellar, where they found a still, liquor, and paraphernalia used in the manufacture of liquor, and seize such property. United States v. Borkowski (D. C.) 268 F. 408. In that ease, the sense of smell which made possible the detection was pointed out to be as important as the sense of sight, which might see the crime being committed. In Rouda v. United States (C. C. A.) 10 F.(2d) 916, prohibition agents saw a man enter the ground floor of a building with two 5-gallon cans of alcohol. The ground floor was occupied as a hosiery store, and the agents followed the man into the basement, and there found the defendants engaged in the manufacture of whisky. The agents there entered an inclosure where the men were working, and arrested the defendants, and later secured a search warrant to search for property. We pointed out that, where manufacturing was taking place in the presence of the agent, he might lawfully enter a public store and search the premises and seize the property. In Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, the eourt said: “The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and" }, { "docid": "21520604", "title": "", "text": "of smell which made possible the detection was pointed out to be as important as the sense of sight, which might see the crime being committed. In Rouda v. United States (C. C. A.) 10 F.(2d) 916, prohibition agents saw a man enter the ground floor of a building with two 5-gallon cans of alcohol. The ground floor was occupied as a hosiery store, and the agents followed the man into the basement, and there found the defendants engaged in the manufacture of whisky. The agents there entered an inclosure where the men were working, and arrested the defendants, and later secured a search warrant to search for property. We pointed out that, where manufacturing was taking place in the presence of the agent, he might lawfully enter a public store and search the premises and seize the property. In Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, the eourt said: “The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States, 267 U. S. 132, 158, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Weeks v. United States, 232 U. S. 383, 392,” 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. We conclude, therefore, that the officers lawfully entered the premises of the plaintiffs in error, and, having lawfully entered, could search for and seize the property of the plaintiffs in error found there. It was unnecessary for them to obtain a search warrant before doing what they did. Error is assigned in the ruling excluding a question asked the witness Ranalli. He testified that he had been convicted of bribery and served a term in Sing" }, { "docid": "21542316", "title": "", "text": "defendants, and they may not escape through a wrong of which they were not the victims. Agnello v. United States, 46 S. Ct. 4, 70 L. Ed. (U. S.) ----; Chicago v. United States, 284 F. 434 (C. C. A. 4); Goldberg v. United States, 297 F. 98 (C. C. A. 5); Remus v. United States, 291 F. 501 (C. C. A. 6). The imputed incompetency of evidence procured by an unlawful search is remedial (Weeks v. United States, 34 S. Ct. 341, 232 U. S. 383, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 40 S. Ct. 182, 251 U. S. 385, 64 L. Ed. 319), and no remedy can extend to wrongs done another. True, it is argued, and has indeed been held, that the remedy has in no ease any relation to the wrong, taking form, as in application it does, in the victim’s exoneration of a crime. But' with that we have nothing to do; our only question- is whether the doctrine extends to a case where the criminal has hot been wronged at all. No tenable theory could support his escape, merely as punishment for the official’s trespass. It is true that the warrant was lost, and that there was some question whether it was returned. As to the first, we know of no ease which imposes such a result upon the loss of the document, if all the formalities were observed; nor can we see why the proof should differ from that appropriate in the case of any other lost document. As to the second, we need only say that there was evidence of compliance' with all the requirements of the statute. What the learned judge found to have been the fact we have no means of knowing. We say this without meaning to imply that the failure to return the warrant, or to make the prescribed return upon it, is a prerequisite to the competency of the evidence secured. Rose v. United States (C. C. A.) 274 F. 245, 250. How far" }, { "docid": "15212540", "title": "", "text": "such manufacture, and both said they worked there. There was nothing to indicate that they worked there for any other purpose than the manufacture of whisky, and all reasonable conclusions to be drawn from the evidence were to the affect that they were engaged in operating illicit stills to make such liquor. At least the jury was justified in finding that to be the fact beyond a reasonable doubt. Such evidence in the case made the guilt or innocenee of the defendants under the manufacturing count a question for the jury. De Gregorio v. United States (C. C. A.) 7 F.(2d) 295; United States v. Dibella (C. C. A.) 28 F.(2d) 805; Palazini v. United States (C. C. A.) 14 F.(2d) 886. Nor did United States v. Molyneaux (C. C. A.) 55 F.(2d) 912, decide anything to the contrary. In that case Molyneaux was charged with having violated section 20 of the Radio Act of 1927 (47 USCA § 100), and his conviction was reversed because the evidence, while it did show that he was present where a transmitting apparatus was being unlawfully operated, was insufficient to show that'he operated it. The statute under which he was prosecuted required proof that the accused actually operated the set himself. There was, however, no proof of unlawful possession of intoxicating liquor except such possession as was a necessary incident of manufacture. That possession of the contraband whieh its manufacture required was not a separate offense for which the “appellants could be convicted in addition to their conviction under the manufacturing count. Rouda v. United States (C. C. A.) 10 F.(2d) 916; Schroeder v. United States (C. C. A.) 7 F.(2d) 60, 65; United States v. Levinson et al. (C. C. A.) 54 F.(2d) 363. Judgment on the fifth count affirmed; judgment on the sixth count reversed." }, { "docid": "5399855", "title": "", "text": "65 L. Ed. 1048, 13 A. L. R. 1159), should not profit in any wise by its own. But that would obviously introduce other than remedial considerations; the doctrine would then be like that of equity which denies its remedies to one who is not \"himself seathless. Agnello v. U. S., 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409, has often been cited as limiting the ineompeteney to the person aggrieved, but it scarcely goes so far; the evidence, unlawfully seized, was apparently not used against the other defendants at all. Nor does Taylor v. U. S., 52 S. Ct. 466, 76 L. Ed.-, touch the situation at bar; Taylor was in possession of the property seized. So far as we can find, the Supreme Court has not passed upon the point, but it has been ruled in all Circuit Courts of Appeal but the First, and always against defendants whose rights had not been invaded. Haywood et al. v. U. S., 268 F. 795, 803, 804 (C. C. A. 7); Chicco v. U. S., 284 F. 434 (C. C. A. 4); Remus v. U. S., 291 F. 501, 509, 511 (C. C. A. 6); Schwartz v. U. S., 294 F. 528 (C. C. A, 5); MacDaniel v. U. S., 294 F. 769 (C. C. A. 6); Goldberg v. U. S., 297 F. 98 (C. C. A. 5); Rouda v. U. S., 10 F.(2d) 916, 917 (C. C. A. 2); Rosenberg v. U. S., 15 F.(2d) 179, 180 (C. C. A. 8); Graham v. U. S., 15 F.(2d) 740, 742 (C. C. A. 5); Cantrell v. U. S., 15 F.(2d) 953 (C. C. A. 5); Nielson v. U. S., 24 F.(2d) 802 (C. C. A. 9); Patterson v. U. S., 31 F.(2d) 737 (C. C. A. 9); U. S. v. Messina, 36 F.(2d) 699 (C. C. A. 2); McShann v. U. S., 38 F.(2d) 635 (C. C. A. 10); Holt v. U. S., 42 F.(2d) 103 (C. C. A. 6); Chepo v. U. S., 46 F.(2d) 70 (C. C. A. 3)." }, { "docid": "3696363", "title": "", "text": "was rung up upon the cash register as a sale in due Course. The jury was justified in supposing that any one upon entering the store could buy whisky by asking for it. Indeed, in their place we should not have hesitated to make the same inference. While it is true that the defendant had only just opened his shop that does not, in our judgment, prevent it from at once becoming a place in which liquors were being habitually sold, and so a nuisance. Though thi§ were the first sale ever made upon the premises, it might be the beginning of a practice which was plainly intended to be continuous. The question is whether the practice has once begun, not whether it has existed in the past. When it appears, as the jury might here infer, that the shop was from the outset one in which liquors were to be unlawfully sold, its maintenance was a nuisance, as soon as it was opened at all. The first count for unlawful possession cannot stand, since the offense is included in maintaining a nuisance, if indeed it was proved at all. Reynolds v. U. S. (C. C. A.) 280 F. 1; Miller v. U. S., supra; Morgan v. U. S. (C. C. A.) 294 F. 82. We have but recently made the same ruling in Schroeder v. U. S., 7 F.(2d) 60, filed May 4, 1925. As the sentence was concurrent, and was not in excess of that prescribed upon the second count alone, it need not be disturbed. Judgment on the first count reversed; on the second count affirmed. Sentence affirmed on the second count." }, { "docid": "1834408", "title": "", "text": "to what they had seen after they entered the premises, as well as to what they had seen before they entered the premises. No actual physical evidence, taken as a result of the entry, was offered before the jury. The motion to suppress, as stated in the note of evidence, was denied on the authority of McBride v. U. S., supra, In re Mobile (D. C.) 278 F. 949, Schwartz v. 17. S. (C. C. A.) 294 F. 528, U. S. v. Borkowski (D. C.) 268 F. 408, U. S. v. Apple and U. S. v. Huff (D. C.) 1 F.(2d) 493. and also for the reason that, under section 25 of the National Prohibition Act, I considered that the premises were being’ used for business purposes; that is, the manufacture of intoxicating liquor in the quantity shown by the evidence. See, also, Tritico v. U. S., 4 F.(2d) 664, decided by Fifth Circuit Court of Appeals February 17, 1925, citing McBride v. U. S., a.nd upholding the search without a warrant of a building (not a residence) when the officers were made aware, through, their senses, that the prohibition law was being violated. See, particularly, Hester v. U. S., 265 U. S. 57, 44 S. Ct., 445, 68 L. Ed. 898, holding admissible testimony of officers to the finding of whisky near the house where the defendant resided, though the witnesses had no warrant and were trespassers on the land, and holding the Fourth Amendment does not extend to open fields, which from the context I interpret would include the yard around a residence. In this ease the court said, page 58 (44 S. Ct. 446): “The officers had no warrant for search or arrest. * * The defendant’s own acts, and those of Ms associates, disclosed the jug, the jar and the bottle — and there was no seizure in the sense of the law when the officers examined the contents of each after it had been abandoned. This evidence was not obtained by the entry into the house and it is immaterial to discuss that. * *" }, { "docid": "9367451", "title": "", "text": "this ease the court held that the offense was committed in the presence of the officers, and that, therefore, the seizure of the stills and their use in evidence was valid. Judge King, writing for the court, at page 419 of 284 F. used this general language: “Where an officer is apprised by any of his senses that a crime is being committed, it is being committed in his presence, so as to justify an arrest without warrant.” In Rouda v. United States (C. C. A.) 10 F.(2d) 916, the facts there showed that a prohibition agent, watching at the outside of a building, observed a man enter .the ground floor with two 5-gallon cans of alcohol. (Just how he knew these cans contained alcohol does not appear.) The ground floor was occupied as a hosiery store, and the man, after going in a short distance, turned to one side and disappeared down a flight of stairs. The agent procured assistance and they entered the store and went downstairs into the basement. The front of this was unoccupied, but the rear had been closed off by a partition, making an inclosed room. The door leading into the room was open, and through the open door the agents were able to see the defendants inside. They were pasting whisky labels on bottles. The agents saw some large jars of whisky, alcohol, and water. They entered the room and arrested the defendants, and one of them went back for a search warrant. The court held that, while a trespass had been committed upon the owner of the hosiery shop, such trespass was not available to the defendants on a motion to reject the evidence. The agents could see through the open door, into the premises actually occupied by the defendants, and what they saw constituted visual evidence of the commission of a crime. In other words, a crime was being committed in their presence, in the sense in which the word “presence” is ordinarily used and, understood. ■ In Temperará v. United States, supra, a' search had been made without a warrant." }, { "docid": "21542315", "title": "", "text": "HAND, Circuit Judge (after stating the facts as above). The evidence was sufficient to sustain a verdict upon the count for manufacturing. Taylor was found in the very act of preparing the bottles and in the midst of paraphernalia proper for making whisky out of alcohol and water. Rouda was present and by his own admission was the owner of the “plant.” Nothing more probative could have been asked. The conviction upon the possession count was, however, irregular, since all the elements necessary to it were included in the count for manufacture. Reynolds v. United States, 280 F. 1 (C. C. A. 6); Morgan v. United States, 294 F. 82 (C. C. A. 4); Schroeder v. United States, 7 F.(2d) 60 (C. C. A. 2). We find it unnecessary to consider whether or not the entry into the hosiery shop, the descent to the basement, and its exploration to the open door of the inelosure where the defendants were at work were lawful. If a trespass, it was not upon the premises occupied by the defendants, and they may not escape through a wrong of which they were not the victims. Agnello v. United States, 46 S. Ct. 4, 70 L. Ed. (U. S.) ----; Chicago v. United States, 284 F. 434 (C. C. A. 4); Goldberg v. United States, 297 F. 98 (C. C. A. 5); Remus v. United States, 291 F. 501 (C. C. A. 6). The imputed incompetency of evidence procured by an unlawful search is remedial (Weeks v. United States, 34 S. Ct. 341, 232 U. S. 383, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 40 S. Ct. 182, 251 U. S. 385, 64 L. Ed. 319), and no remedy can extend to wrongs done another. True, it is argued, and has indeed been held, that the remedy has in no ease any relation to the wrong, taking form, as in application it does, in the victim’s exoneration of a crime. But' with that we have nothing to do; our only question- is whether" }, { "docid": "11073821", "title": "", "text": "Men were sitting at the tables drinking and there was ample in the way of whisky in bottles upon the tables. Forsling told Yeccliio that he was under arrest, searched him, and took from him the marked money. Then in company with the other officers they searched the house and seized alcohol, whisky, .and beer in large quantities, being the property set forth in count 3 of the second indictment. This property was used in evidence. Was it secured in violation of the Fourth Amendment to the Constitution? An officer may arrest a party committing a crime in Ms presence and as an incident to said arrest search the immediate premises and seize the things having relationship to said crime and snch search is not a violation of the Fourth Amendment to the Constitution. In Agnello v. United States, 269 U. S. 29, 30, 46 S. Ct. 4, 5, 70 L. Ed. 145, 51 A. L. R. 409, the rule is clearly laid down as follows: “The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other thing's to effect an escape from custody is not to be doubted.” Green et al. v. United States (C. C. A.) 289 F. 236; Brock v. United States (C. C. A.) 12 F.(2d) 370; Dibello v. United Slates (C. C. A.) 19 F.(2d) 749; Woodcock v. United States (C. C. A.) 33 F.(2d) 485. Wida et al. v. United States (C. C. A.) 52 F.(2d) 424 (opinion filed September 15, 1931) is a case closely analogous to the case at bar. Here a crime was being committed in the presence of an officer — in fact several crimes. Yecchio was lawfully arrested, and therefore the right existed to search the place and to seize the things connected with the crime. The liquor used in evidence on the second indictment was" }, { "docid": "15647046", "title": "", "text": "afternoon of the same day four of these officers drove upon tho defendant’s premises and parked their automobile in front of the main dwelling house. They had no warrant of any kind. They came simply to search for violations of the law. Having alighted from their ear, one of them went to the south door of the bathhouse, where he says that he knocked but the door was not opened. This agent was later joined by the other three, and the officers testify that, after knocking several times at the east door, it was opened by defendant. Within the building was a small still and some barrels, kegs, and jugs of finished whisky, all of which were seized. The defendant testified that he did pot open the door but that it was broken open by the officers. But conceding that it was opened by defendant, there is no other evidence of consent to the search, and this action would be equally consistent with simple surrender to arrest. We think, therefore, that while there was evidence of surrender upon the part of the defendant, there was no substantial evidence of waiver of his constitutional rights in view of the burden resting upon the government to prove this. Cf. Kovach v. United States, 53 F.(2d) 639 (C. C. A. 6). After arrest and indictment a motion to suppress the evidence was duly made and denied. We are of the opinion that the motion should have been granted. Any search of a private dwelling without a search warrant is at least prima facie unreasonable. Cf. Agnello v. United States, 269 U. S. 20, 32, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409 ; Hershkowitz v. United States, 65 F.(2d) 920 (C. C. A. 6). And this is the more clear in the present case for the information at the disposal of the officers was wholly insufficient to justify the issuance of a search warrant. Grau v. United States, 287 U. S. 124, 53 S. Ct. 38, 77 L. Ed. 212; Staker v. United States, 5 F.(2d) 312 (C." }, { "docid": "14503592", "title": "", "text": "NETERER, District Judge (after stating the facts as above). [1-7] It was not error to receive this evidence. The most that can be said is that the officers were trespassers. Raine v. United States (C. C. A.) 299 F. 407. The court did not err in denying the motion to elect. Congress has power to define offenses and what act shall constitute an offense, and from thé pleadings it appears that neither is necessarily or at all included in any of the others. Raine v. United States, supra; Earl v. United States (C. C. A.) 4 F.(2d) 532; Singer v. United States (C. C. A.) 288 F. 695; Bell v. United States (C. C. A.) 285 F. 145; Foster v. United States, 256 F. 207, 167 C. C. A. 423. Nor did the court err in the imposition of sentence under the several counts. The sentence imposed upon counts 1, 2, and 4 did not exceed that which might have been imposed on count 4. There was but one sentence. It was a permissible sentence on count 4. While count 2, charging possession of property designed for the manufacture of intoxicating liquor at a certain time and place, is merged with count 3, unlawfully manufacturing intoxicating liquor at the same time and place, and count 1, charging possession of intoxicating liquor from the same liquor manufactured in count 3, or transported in count 4, and merged in either one or both (Reynolds v. United States [C. C. A.] 280 F. 1; Morgan v. United States [C. C. A.] 294 F. 82; Tritico v. United States, 4 F.[2d] 664; Patrilo v. United States [C. C. A.] 7 F.[2d] 804; Rouda v. United States [C. C. A.] 10 F.[2d] 917; Dexter v. United States [C. C. A.] 12 F. [2d] 777), no sentence is resting on either count 1 or 2. “Where conviction is had upon more than one count, the sentence, if it does not exceed that which might be imposed on one count, is good if that count is sufficient.” Kuehn v. United States (C. C. A.) 8 F.(2d) 265;" }, { "docid": "2963060", "title": "", "text": "of the charge he was called upon to meet, and protected against a second prosecution for the same offense. It was good against demurrer,’ general or special, and against motion to quash.” See, also, Banta v. United States (C. C. A.) 12 F.(2d) 765; Goldberger v. United States (C. C. A.) 4 F. (2d) 10; United States v. Behrman, 258 U. S. 280, 42 S. Ct. 303, 66 L. Ed. 619. The demurrer to the indictment was therefore. properly overruled. The sufficiency of the evidence was directly challenged by a motion for a directed verdict, and it is contended that there was no proof to show that the form of stamps described in the indictment had in fact been prescribed and issued by the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, or that the strip stamps possessed and used by the defendants were in the resemblance and similitude of genuine strip stamps prescribed by the Commissioner of Internal Revenue. It appears from the record that on May 31, 1929, three police officers went to 3005 East Fifty-Ninth street, Kansas City, Jackson county, Missouri, and, on looking through the basement windows, saw the defendants at work corking, stamping, and capping a number of filled pint bottles, and placing them, when so corked, stamped, and capped, in a carton. After finishing capping these bottles, defendant Armstrong put several bottles in his pocket and started toward the basement door, but, observing one of the officers, he removed the bottles from his pocket and placed them on a shelf. The defendant Roberts then opened the door and let the officers into the basement. The officers thereupon arrested the defendants, and found in the basement 124 pint bottles of whisky, some strip stamps that had been used, and a can of celon caps. Some of the stamps had been placed over corks in bottles filled with colored whisky and bearing labels of “Old Taylor Kentucky Whisky.” These articles found by the officers in possession of the defendants were identified by witnesses and marked for identification as Exhibits 1 to" }, { "docid": "15684166", "title": "", "text": "income was very much larger than they disclosed. The jury brought in a verdict of guilty on all four counts, and the judge imposed a sentence of two years on count 1 and five years on count 2, to be served concurrently; and of an added two years on count 3, and five years on count 4, to be served concurrently, thus making a total term of ten years. He imposed a fine of <$10,000 on count 2 and an added fine of $10,000 on count 4; of $10,000 on count 1 (to be suspended if the fine on count 2 was paid) ; and of $10,000 on count 3 (to be similarly suspended). He added as a fine the costs of the prosecution, $876. The first objection is that conviction upon the conspiracy counts necessarily covered the attempts, and that for this reason the sentence was a double punishment. This argument does not go so far as to say that a conspiracy and the crime of which it is the object may not ordinarily be laid as separate counts in one indictment, or that sentence may not be imposed upon each count; and in so conceding it is clearlv right. Carter v. McClaughry, 183 U. S. 365, 394, 395, 22 S. Ct. 181, 46 L. Ed. 236; Bens v. U. S., 266 F. 152 (C. C. A. 2) ; Morgan v. Aderhold, 73 F. (2d) 171 (C. C. A. 5) ; Wharton on Criminal Law (11th Ed.) § 1654. The distinction on which the appeal pro tanto goes is that among the overt acts in each conspiracy count was the filing of the return, and that that was the attempt itself. Hence the conviction upon these counts necessarily included all the facts making up the attempt and the judge imposed two sentences for the same crime. Reynolds v. U. S., 280 F. 1 (C C. A. 6); Morgan v. U. S., 294 F. 82 (C. C. A. 4); Miller v. U. S., 300 F. 529, 534 (C. C. A. 6); Schroeder v. U. S., 7 F.(2d) 60, 64 (C." }, { "docid": "2948563", "title": "", "text": "nor is it necessary that this be proved in order to sustain the conviction. Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, induces, commands, or procures its commission, is a principal. U. S. C., title 18, § 550 (18 USCA § 550); Heitler v. United States (C. C. A.) 280 F. 703. An owner of property who knows that his tenant is maintaining a common nuisance therein by manufacturing and selling liquor therein and keeping liquor for sale, and consents to such conduct upon the part of the tenant, thereby aids aid abets in the maintenance of such nuisance and is guilty as a principal in maintaining it. Heitler v. United States (C. C. A.) 280 F. 703; Cook v. United States (C. C. A.) 299 F. 291; Steir v. United States (C. C. A.) 2 F.(2d) 149; Dallas v. United States (C. C. A.) 4 F.(2d) 201; Carroll v. United States (C. C. A.) 39 F.(2d) 414. Much of the evidence as set forth above is denied by appellant, but we have no power to weigh conflicting evidence. This was the duty of the jury. Rabideau v. United States (C. C. A.) 40 F.(2d) 909; Brady v. United States (C. C. A.) 41 F.(2d) 449. After reading all the record we are convinced that there is sufficient evidence to sustain the verdict of the jury as to each count. Certainly there was evidence to the effect that appellant’s tenants were guilty as charged, and they are not appealing from the judgment. From all the circumstances as above set out the jury was warranted in finding that appellant had full knowledge of the facts and acquiesced therein. When he visited the place, he could, by a meager exercise of his senses of sight and smell, have been aware of the conditions and no doubt was so- aware. While there was no evidence as to odor, yet it is a generally well-known fact that alcohol, whisky, and home-made beer and mash, especially in the process of making, have a very" }, { "docid": "7830415", "title": "", "text": "299 F. 590; Ford v. United States (C. C. A.) 10 F.(2d) 339; Anstess v. United States (C. C. A.) 22 F.(2d) 594. There can beno doubt of the sufficiency of the evidence to sustain the verdict of guilty on counts 3 and 4, the possession counts. This evidence has already been referred to, and it was not only uncontradicted but conclusive. The government, over the objection of defendants, was permitted to introduce in evidence the motion which they had interposed to suppress the evidence obtained by both the first and second seizures, together with the supporting affidavits submitted in support of the motion. This we think is the most serious question in this ease. The lower court, it must be remembered, sustained this motion as to the first search and seizure. On this appeal at least this ruling by the court must be accepted as correct, and we think it is sustained by controlling authority. Go-Bart Importing Co. v. United States, 282 U. S. 344, 51 S. Ct. 153, 75 L. Ed. 374; Taylor v. United States, 286 U. S. 1, 52 S. Ct. 466, 76 L. Ed. 951; Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; United States v. Lefkowitz, 285 U. S. 452, 52 S. Ct. 420, 76 L. Ed. 877; Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Byars v. United States, 273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. 520; Marron v. United States, 275 U. S. 192, 48 S. Ct. 74, 72 L. Ed. 231. In this motion and supporting affidavits, defendants had alleged ownership of the liquor seized, had alleged that they had a lease on the garage and chicken coop and an easement over the driveway. These documents were tantamount to a written confession of guilt. It being established that the constitutional guaranties of the defendants had been invaded by this first search and seizure, they were, of course, warranted in asserting their" } ]

[ { "docid": "22742662", "title": "", "text": "Mr. Justice Stevens delivered the opinion of the Court. Petitioner’s complaints allege that her applications for admission to medical school were denied by the respondents because she is a woman. Accepting the truth of those allegations for the purpose of its decision, the Court of Appeals held that petitioner has no right of action against respondents that may be asserted in a federal court. 559 F. 2d 1063. We granted certiorari to review that holding. 438 U. S. 914. Only two facts alleged in the complaints are relevant to our decision. First, petitioner was excluded from participation in the respondents’ medical education programs because of her sex. Second, these education programs were receiving federal financial assistance at the time of her exclusion. These facts, admitted arguendo by respondents’ motion to dismiss the complaints, establish a violation of § 901 (a) of Title IX of the Education Amendments of 1972 (hereinafter Title IX). That section, in relevant part, provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . The statute does not, however, expressly authorize a private right of action by a person injured by a violation of § 901. For that reason, and because it concluded that no private remedy should be inferred, the District Court granted the respondents’ motions to dismiss. 406 F. Supp. 1257, 1259. The Court of Appeals agreed that the statute did not contain an implied private remedy. Noting that § 902 of Title IX establishes a procedure for the termination of federal financial support for institutions violating § 901, the Court of Appeals concluded that Congress intended that remedy to be the exclusive means of enforcement. It recognized that the statute was patterned after Title VI of the Civil Rights Act of 1964 (hereinafter Title VI), but rejected petitioner’s argument that Title VI included an implied private cause of action. 559 F. 2d, at 1071-1075. After the Court of Appeals’ decision was announced, Congress enacted the" } ]

[ { "docid": "9755336", "title": "", "text": "his opposition to this treatment ultimately led to his constructive discharge. This in no way indicts any employment practice on behalf of Samford. Without more, any retaliation by defendants for plaintiffs advocacy of a student’s rights is simply not prohibited by Title VII. Because plaintiff did not oppose a discriminatory action that is proscribed by the statute, plaintiff fails to state a claim of retaliation under Title VII, and defendants’ motion is due to be granted. c. Title IX Retaliation Defendants also argue that dismissal is proper as to Count II, plaintiffs Title IX claim, on the grounds that Title IX does not provide a private cause of action for retaliation to a “whistle blower” who has not himself suffered sex-based discrimination. Title IX provides in pertinent part: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance____ 20 U.S.C. § 1681(a). Remarkably absent from Title IX, however, is an express statutory remedy for retaliation. The Supreme Court has recognized that a limited implied cause of action exists to enforce private rights under Title IX for those plaintiffs who have directly suffered sex-based discrimination. Cannon v. University of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 1968, 60 L.Ed.2d 560 (1979). This implied private right of action has even been extended past the in-junctive remedy allowed in Cannon to provide for monetary relief where educational institutions have discriminated on the basis of a person’s gender. Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 64-66, 112 S.Ct. 1028, 1032, 117 L.Ed.2d 208 (1992). However, neither the Supreme Court nor the Eleventh Circuit has recognized a cause of action for retaliatory discharge under Title IX. Unlike the creators of § 2000e-3(a) of Title VII, the congressional authors of Title IX failed to include any express protections against retaliation when considering the problems of gender equity in our nation’s educational institutions. This failure to speak is significant when compared to § 2000e-3, a vital piece" }, { "docid": "2205678", "title": "", "text": "action to battle discrimination based upon gender by educational institutions which receive federal funding, Franklin v. Gwinnett County Public Schools, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), and was intended to prevent the use of federal resources to support gender discrimination. Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). We must look to the language of Title IX of the Education Amendments of 1972: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. § 1681(a). Federal enforcement of the statute and its regulation is within the jurisdiction of the Department of Education’s Office for Civil Rights (“OCR”). OCR’s policy interpretation deserves our great deference. Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Office of Civil Rights Regulations applies Title IX to interscholastic, intercollegiate, club and intramural athletics. Education Act, 34 C.F.R. 106.41(a). Title IX and the implementing regulations can be violated without showing a specific intent on the part of the educational institution to discriminate against women. Haffer v. Temple University, 678 F.Supp. 517, 539 (E.D.Pa.1987). The OCR policy interpretation sets out a three-pronged test for whether an educational institution complies with the duty to provide equality in its opportunities to participate in intercollegiate athletics. We must consider: 1. Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or 2. Where the members of one sex have been and are underrepresented among intercollegiate athletics, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex; or 3. Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and" }, { "docid": "12217715", "title": "", "text": "Gwinnett County Pub. Schs., 503 U.S. 60, 75, 112 S.Ct. 1028, 1037-38, 117 L.Ed.2d 208 (1992); Kracunas, 119 F.3d at 88-89. We disagree. Title IX provides in pertinent part that [n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. § 1681(a). Title IX has been construed to prohibit gender discrimination against students and employees alike in educational institutions that receive federal funding. See Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248 (2d Cir.1995) (citing North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 520-34, 102 S.Ct. 1912, 1917-25, 72 L.Ed.2d 299 (1982)). At issue in the present case is whether an entity such as Rockland that (1) is a state-run clinic that receives federal money, and (2) permits student-interns from a college with which it has no affiliation to perform volunteer field work at its facility, is subject to Title IX on the ground that it operates an “education program or activity.” In Grove City College v. Bell, 465 U.S. 555, 571-75, 104 S.Ct. 1211, 1220-22, 79 L.Ed.2d 516 (1984) the Supreme Court considered the meaning of Title IX’s phrase “education program or activity” and defined it narrowly, holding that by referring to particular activities or programs, Congress intended that Title IX apply only to the particular program receiving financial assistance. Thus, in Grove City, the Court found that the receipt by students of federal grants did not trigger institution-wide Title IX coverage, but only coverage of the school’s financial aid program. Id. at 573-74, 104 S.Ct. at 1221-22. In response to the Court’s interpretation of Title IX, as well as out of concern that the Grove City definition of “program or activity” would be applied to similar language contained in § 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and Title VI of the Civil Rights Act of 1964, Congress passed the Civil Rights Restoration Act of 1987, Pub.L." }, { "docid": "3132773", "title": "", "text": "be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving financial assistance____ 20 U.S.C. § 1681(a) (1995). Courts have interpreted Title IX to prohibit gender discrimination against students enrolled in federally supported educational programs and employees involved in such programs. Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248 (1995). Under Title IX, an aggrieved individual has an implied right of action, see Cannon v. University of Chicago, 441 U.S. 677, 688-89, 99 S.Ct. 1946, 1953-54, 60 L.Ed.2d 560 (1979), for both injunctive relief and money damages, see Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 71-73, 112 S.Ct. 1028, 1035-37, 117 L.Ed.2d 208 (1992). Moreover, the Supreme Court has stated that if courts are to give Title IX “the scope that its origins dictate, [they] must accord it a sweep as broad as its language.” North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 102 S.Ct. 1912, 1917-18, 72 L.Ed.2d 299 (1982). B. Actionable Peer-to Peer Sexual Harassment Under Title IX In Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), the Supreme Court considered a Title IX claim for monetary damages against a school district for its failure to stop the sexual harassment of a student by a teacher. The plaintiff in Franklin alleged that she had been sexually harassed by her high school teacher and that the school district possessed actual knowledge of the teacher’s behavior, but took no action to stop the harassment. The Court acknowledged that “[unquestionably, Title IX placets] on ... [public schools] a duty not to discriminate on the basis of sex.” Franklin, 503 U.S. at 75, 112 S.Ct. at 1037. The Court then drew an analogy between a claim for sexual harassment against a school district under Title IX and a sexual harassment claim against an employer under Title VII. The Court held that just as Title VII creates a cause of action for discrimination on the basis of sex “when a supervisor sexually harasses a subordinate" }, { "docid": "23661924", "title": "", "text": "Brown’s announcement of the cutbacks, disappointed members of the women’s volleyball and gymnastics teams brought suit. They proceeded on an implied cause of action under Title IX, 20 U.S.C. §§ 1681-1688 (1988). See Franklin v. Gwinnett County Pub. Sch., — U.S. -, -, 112 S.Ct. 1028, 1032, 117 L.Ed.2d 208 (1992) (recognizing implied private right of action under Title IX); Cannon v. University of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 1968, 60 L.Ed.2d 560 (1979) (same); see also Cannon, 441 U.S. at 687 n. 8, 99 S.Ct. at 1952 n. 8 (holding that exhaustion of administrative remedies is not a prerequisite to a Title IX suit). The plaintiffs charged that Brown’s athletic arrangements violated Title IX’s ban on gender-based discrimination, a violation that was allegedly exacerbated by Brown’s decision to devalue the two women’s programs without first making sufficient reductions in men’s activities or, in the alternative, adding other women’s teams to compensate for the loss. On plaintiffs’ motion, the district court certified a class of “all present and future Brown University women students and potential students who participate, seek to participate, and/or are deterred from participating in intercollegiate athletics funded by Brown.” And, after hearing fourteen days of testimony from twenty witnesses, the judge granted a preliminary injunction requiring Brown to reinstate the two women’s teams pending the outcome of a full trial on the merits. See Cohen, 809 P.Supp. at 1001. We stayed execution of the order and expedited Brown’s appeal. III. TITLE IX AND COLLEGIATE ATHLETICS Title IX prohibits gender-based discrimination by educational institutions receiving federal financial support — in practice, the vast majority of all accredited colleges and universities. The statute sketches wide policy lines, leaving the details to regulating agencies. Since this appeal demands that we invade terra incognita, we carefully recount the developments leading to the present version of Title IX and then examine the pertinent statutory and regulatory language. A. Scope of Title IX. At its inception, the broad proscriptive language of Title IX caused considerable consternation in the academic world. The academy’s anxiety chiefly centered around identifying which individual programs," }, { "docid": "3132772", "title": "", "text": "facts; and (e) deny the motion if, in light of the above, reasonable jurors could differ as to the conclusions that could be drawn from the evidence. Farley v. Henson, 11 F.3d 827, 831 (8th Cir.1993); McGee v. South Pemiscot Sch. Dist. R-V, 712 F.2d 339, 343 (8th Cir.1983). LIABILITY FOR SEXUAL HARASSMENT UNDER TITLE IX The defendant moves for judgment as a matter of law on the issue of its liability under Title IX for peer student sexual harassment. The defendant contends that plaintiff failed to show that the defendant intentionally discriminated against the plaintiff on the basis of sex. For the reasons stated below, the court grants the defendant’s motion for judgment as a matter of law due to plaintiffs failure to establish an intent to discriminate on the part of the school district. A Title IX of the Education Amendments of 1972 Title IX prohibits discrimination on the basis of gender in educational programs and activities receiving federal financial assistance: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving financial assistance____ 20 U.S.C. § 1681(a) (1995). Courts have interpreted Title IX to prohibit gender discrimination against students enrolled in federally supported educational programs and employees involved in such programs. Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248 (1995). Under Title IX, an aggrieved individual has an implied right of action, see Cannon v. University of Chicago, 441 U.S. 677, 688-89, 99 S.Ct. 1946, 1953-54, 60 L.Ed.2d 560 (1979), for both injunctive relief and money damages, see Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 71-73, 112 S.Ct. 1028, 1035-37, 117 L.Ed.2d 208 (1992). Moreover, the Supreme Court has stated that if courts are to give Title IX “the scope that its origins dictate, [they] must accord it a sweep as broad as its language.” North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 102 S.Ct. 1912, 1917-18, 72 L.Ed.2d 299 (1982). B. Actionable Peer-to Peer" }, { "docid": "10739485", "title": "", "text": "dismiss in this regard will be denied. At this juncture, the Court finds the same reasoning to hold in terms of Plaintiffs’ demand for damages under Count II, the claim brought under Title IX. Generally speaking, parents of a student whose rights were violated do not have standing to assert personal claims under Title IX, but do have standing to assert claims on the student’s behalf. Accord., Haines v. Metropolitan Government of Davidson County, Tenn., 32 F.Supp.2d 991 (M.D.Tenn.1998); Doe v. Londonderry School Dist., 970 F.Supp. 64 (D.N.H.1997); Franks v. Kentucky School for the Deaf, 956 F.Supp. 741 (E.D.Ky.1996); Burrow By and Through Burrow v. Postville Community School Dist., 929 F.Supp. 1193 (N.D.Iowa, 1996). On its face, the statutory language of Title IX, 20 U.S.C. § 1681 et seq., applies only to students and participants in educational programs. Plaintiffs do not allege that they are either in this case, and therefore, they do not have standing to pursue personal claims. The Court finds, however, that Plaintiff parents do have standing to pursue the reimbursement for expenses of medical treatment and counseling of J.D. as a result of the alleged deprivation of rights under Title IX. 3. Count II against Defendant School District brought under Title IX Title IX of the Education Act of 1972 proscribes discrimination, exclusion, or denial of benefits on the basis of sex in educational institutions or programs which receive federal funding. 20 U.S.C. § 1681 (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[J”). Defendant School District does not dispute that it is the recipient of federal funding. Title IX encompasses sexual harassment of a student by a teacher and is enforceable through an implied private right of action for damages against a school district. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 75-76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992); see also, Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560" }, { "docid": "4058592", "title": "", "text": "In the absence of specific Supreme Court or Ninth Circuit precedent directly addressing this question, the Court must look to Title IX itself and to interpretations of the statute by various courts to determine whether the conduct alleged here amounts to a deprivation of a right secured by Title IX. Federal courts interpreting Title IX have heeded North Haven’s direction to read the statute so as to broadly proscribe discrimination on the basis of sex in the educational setting. See, e.g., Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 77, 112 S.Ct. 1028, 1039, 117 L.Ed.2d 208 (1992) (explaining that Title IX “unquestionably ... placets] on [school districts] the duty not to discriminate on the basis of sex”); Cohen v. Brown Univ., 991 F.2d 888, 894 (1st Cir.1993) (noting that “the statute’s heart is a broad prohibition of gender-based discrimination in all programmatic aspects of educational institutions”); Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 833 (10th Cir.1993), cert. denied, — U.S.-, 114 S.Ct. 580, 126 L.Ed.2d 478 (referring to “Title IX’s goal of protecting private citizens against discriminatory practices”). These interpretations of Title IX as conferring upon individuals a firm right not to be discriminated against on the basis of gender in all aspects of federally-funded educational programs find strong support in the language of the statute itself. Title IX explicitly provides that no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination” under any educational program or activity receiving federal funding. 20 U.S.C. § 1681(a) (emphasis added). The fact that Title IX focuses on the individual’s rights under the statute, rather than simply imposing sanctions on educational institutions which discriminate, strongly indicates that the right created by Title IX to be wholly free from discrimination attributable to that institution and its employees is a personal right. See Cannon, 441 U.S. at 690-693, 99 S.Ct. at 1954-55 (noting that “[t]here would be far less reason to infer a private remedy in favor of individual persons if Congress, instead of drafting Title IX with" }, { "docid": "22985145", "title": "", "text": "to exercise jurisdiction over Murray’s state-law claim and dismissed the complaint in its entirety. This appeal followed. II. DISCUSSION On appeal, Murray contends that the facts alleged in the complaint are sufficient to support reasonable inferences (1) that the College had contemporaneous notice, actual, and constructive, that Murray was being subjected to a hostile environment, and (2) that it required Murray to repeat her second-year course work in retaliation for her complaints about the harassment. We agree with the district court’s conclusion that the complaint failed to state a claim on which relief can be granted. A. The Notice Requirement Title IX proscribes discrimination on the basis of gender in educational programs and activities receiving federal financial assistance: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.... 20 U.S.C. § 1681(a). Title IX has been construed to prohibit gender discrimination against both students enrolled in federally supported educational programs and employees involved in such programs. See North Haven Board of Education v. Bell, 456 U.S. 512, 520-34, 102 S.Ct. 1912, 1917-25, 72 L.Ed.2d 299 (1982). An aggrieved individual has an implied right of action, see Cannon v. University of Chicago, 441 U.S. 677, 688-89, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979), for injunctive relief or monetary damages, see Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 71-73, 112 S.Ct. 1028, 1035-37, 117 L.Ed.2d 208 (1992). In reviewing claims of discrimination brought under Title IX by employees, whether for sexual harassment or retaliation, courts have generally adopted the same legal standards that are applied to such claims under Title VII. See, e.g., Lipsett v. University of Puerto Rico, 864 F.2d 881, 896-98 (1st Cir.1988) (harassment); Preston v. Commonwealth of Virginia ex rel. New River Community College, 31 F.3d 203, 206 (4th Cir.1994) (retaliation). See also Roberts v. Colorado State Board of Agriculture, 998 F.2d 824, 832 (10th Cir.) (Title VII provides “the most appropriate analogue when defining Title IX’s substantive standards”)" }, { "docid": "2205677", "title": "", "text": "The opportunity to compete in undergraduate interscholastic athletics vanishes quickly, but the benefits do not. We believe that the harm emanating from lost opportunities for the plaintiffs are likely to be irreparable. 2. Irreparable Harm to Defendants We do not believe that the defendants will be irreparably harmed if the women’s field hockey and gymnastics teams are reinstated. The budget, while shrinking, has space for reallocation and cutbacks in other areas. 3. Probability of Success Next, we must consider whether plaintiffs have shown that they have a reasonable probability of success on the merits of their Title IX claim. Our decision to grant the preliminary injunction is legally only a prediction about the merits of plaintiffs’ case. United States v. Local 560, 974 F.2d 315, 330 (3d Cir.1992). We hasten to add, however, that in view of the statistical evidence produced at the preliminary injunction hearing, there is little doubt as to the outcome of any additional hearings on these issues. We believe that plaintiffs have proved their case. Title IX provides a cause of action to battle discrimination based upon gender by educational institutions which receive federal funding, Franklin v. Gwinnett County Public Schools, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), and was intended to prevent the use of federal resources to support gender discrimination. Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). We must look to the language of Title IX of the Education Amendments of 1972: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. § 1681(a). Federal enforcement of the statute and its regulation is within the jurisdiction of the Department of Education’s Office for Civil Rights (“OCR”). OCR’s policy interpretation deserves our great deference. Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Office of Civil Rights Regulations applies Title IX to interscholastic, intercollegiate, club and intramural athletics." }, { "docid": "22467093", "title": "", "text": "may have led to the panel’s determination, e.g., the fact that several of the panel members may have been friends of Weisman and Kapur, and the fact that Nichols thought Kapur’s earlier testimony bolstered her testimony at the second hearing. A plaintiff may, of course, plead in the alternative, but the abundance of other possible reasons for the panel’s decision combined with the lack of any specific factual support for his claim of a racial motivation illustrates that his claim here is simply a “naked allegation” of racial discrimination, See Albert, 851 F.2d at 572. Dismissal of Yusufs racial discrimination claim based on the disparity between his sentence and Weisman’s was also proper because it too failed to connect the selectivity to racial bias. 2. The Title IX Claim As a second federal claim, Yusuf alleged that Vassar discriminated against him on account of his gender in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-88 (1988), by finding him guilty of the sexual harassment charge. Title IX provides, in relevant part, that: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. § 1681(a) (1988). Title IX is enforceable through an implied private right of action, Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), for monetary damages as well as in-junctive relief, Franklin v. Gwinnett County Pub. Sch., — U.S.—, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). Title IX was enacted to supplement the Civil Rights Act of 1964’s bans on racial discrimination in the workplace and in universities. Because the statutes share the same goals and because Title IX mirrors the substantive provisions of Title VI of the Civil Rights Act of 1964, Grove City College v. Bell, 465 U.S. 555, 566, 104 S.Ct. 1211, 1217-18, 79 L.Ed.2d 516 (1984), courts have interpreted Title IX by looking to the body of law developed under Title VI, as" }, { "docid": "404512", "title": "", "text": "U.S.C. § 1681 Count II of Plaintiffs’ Second Amended Complaint is brought under 20 U.S.C. § 1681 (Title IX) which provides: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance____ In Clyde K. v. Puyallup School Dist. No. 3, 35 F.3d 1396, 1401-02 (9th Cir.1994), the court stated: Given the extremely harmful effects sexual harassment can have on young female students, public officials have an especially compelling duty not to tolerate it in the classrooms and hallways of our schools____ Moreover, school officials might reasonably be concerned about liability for failing to remedy peer sexual harassment that exposes female students to a hostile educational environment. “Unquestionably, Title IX placed on the ... Schools the duty not to discriminate on the basis of sex.” Franklin v. Gwinnett County Public Schools, 503 U.S. 60, at 75, 112 S.Ct. 1028, at 1037, 117 L.Ed.2d 208 (1992). Under Title IX a protected person has a private cause of action for damages for intentional discrimination based on sex. Franklin, 503 U.S. at 73-78, 112 S.Ct. at 1037-39; Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Defendant moves for summary judgment on Count II, arguing that Mrs. Bosley is an improper plaintiff, that Title IX requires a showing of intentional discrimination and that plaintiff has failed to make a showing of intentional discrimination by defendant based on gender. Plaintiff argues that the failure of defendant to take adequate remedial action after defendant had notice of the alleged ongoing sexual harassment of Jennifer Bosley shows an intent to discriminate based on gender. A. Mrs. Bosley’s Claim Under 20 U.S.C. § 1681 Both Mrs. Bosley and Jennifer Bosley bring this claim. On its face, the statute applies only to students and participants in educational programs. Mrs. Bosley is neither and, therefore, is an improper plaintiff. R.L.R. v. Prague Public School District, 838 F.Supp. 1526, 1529 (W.D.Okla.1993) (holding that a student’s parents may not" }, { "docid": "2611986", "title": "", "text": "gender. I agree with Brown that, in the context of OCR’s Policy Interpretation, prong three is susceptible to at least these two plausible interpretations. Additionally, section 1681(a), a provision enacted by Congress as part of Title IX itself, casts doubt on the district court’s reading of prong three. 20 U.S.C. § 1681(a) (1988). As Brown points out, Title IX, of which the Policy Interpretation is an administrative interpretation, contains language that prohibits the ordering of preferential treatment on the basis of gender due to a failure of a program to substantially mirror the gender ratio of an institution. Specifically, with respect to Title IX’s guarantee that no person shall be excluded on the basis of sex from “participation in, be denied the benefits of or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” 20 U.S.C. § 1681(a), [n]othing contained [therein] shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of the sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community. Id. § 1681(b). Section 1681(b) provides yet another reason why the district court’s reading of prong three is troublesome and why Brown’s reading is a reasonable alternative. Since the applicable regulation, 34 C.F.R. § 106.41, and policy interpretation, 44 Fed... Reg. 71,418, are not manifestly contrary to the objectives of Title IX, and Congress has specifically delegated to an agency the responsibility to articulate standards governing a particular area, we must accord the ensuing regulation considerable deference. Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 887, 844, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984). That notwithstanding, where — as here — the resulting regulation is susceptible to more than one reasonable interpretation, we owe no such deference .to the interpretation chosen where the choice is made not by the agency but" }, { "docid": "4058591", "title": "", "text": "Title IX right? As noted above, Title IX states that “[n]o person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.... ” 20 U.S.C. § 1681 (emphasis added). The Supreme Court has emphasized that federal courts should accord to Title IX “a sweep as broad as its language.” North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 102 S.Ct. 1912, 1917, 72 L.Ed.2d 299 (1982). However, at least two central questions pertinent to plaintiffs’ claim in this case have yet to be directly addressed by the Supreme Court or any circuit court in the section 1983 setting: 1) What is the nature of the right created by Title IX in this context?; and 2) What type of conduct by a defendant amounts to a deprivation of that right? The Court addresses each of these issues in turn below. i. Nature of the Title IX Right in the Sexual Harassment Context In the absence of specific Supreme Court or Ninth Circuit precedent directly addressing this question, the Court must look to Title IX itself and to interpretations of the statute by various courts to determine whether the conduct alleged here amounts to a deprivation of a right secured by Title IX. Federal courts interpreting Title IX have heeded North Haven’s direction to read the statute so as to broadly proscribe discrimination on the basis of sex in the educational setting. See, e.g., Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 77, 112 S.Ct. 1028, 1039, 117 L.Ed.2d 208 (1992) (explaining that Title IX “unquestionably ... placets] on [school districts] the duty not to discriminate on the basis of sex”); Cohen v. Brown Univ., 991 F.2d 888, 894 (1st Cir.1993) (noting that “the statute’s heart is a broad prohibition of gender-based discrimination in all programmatic aspects of educational institutions”); Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 833 (10th Cir.1993), cert. denied, — U.S.-, 114 S.Ct. 580, 126 L.Ed.2d 478 (referring to “Title IX’s" }, { "docid": "2788458", "title": "", "text": "Patterned after Title VI of the Civil Rights Act of 1964, Title IX prohibits gender discrimination in education programs receiving federal financial assistance, including athletic programs. Section 901 provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Section 902 authorizes federal funding agencies to promulgate regulations providing for the termination of federal funding of any noncomplying program or activity, “Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means.” 20 U.S.C. § 1682. Pursuant to this authority, the Department of Education has promulgated regulations addressing equal opportunity issues in the provision of athletic scholarships and programs. See 34 C.F.R. §§ 106.37(c), 106.41. Though Congress was silent on the question of private remedies, the Supreme Court has implied a private right of action to enforce Title IX, Cannon v. Univ. of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), and has authorized the award of money damages, Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). However, in fashioning specific implied remedies, the Court recently cautioned, courts must “shape a sensible remedial scheme that best comports with the statute.” Gebser, 524 U.S. at 284, 118 S.Ct. 1989. In Gebser, the Court held that a school district is not liable for a teacher’s sexual harassment unless it had actual notice of, and was deliberately indifferent to, the discrimination. The Court explained, 524 U.S. at 288-90, 118 S.Ct. 1989: Title IX’s express means of enforcement — by administrative agencies — operates on an assumption of actual notice to officials of the funding recipient.... ^ ^ ^ It would be unsound, we think, for a statute’s express system of enforcement to require notice to the recipient and" }, { "docid": "20088060", "title": "", "text": "request for a permanent injunction reinstating the women’s intercollegiate softball program at CSU was held on November 19, 1992, continuing on November 20, 23, and 24, 1992. After careful consideration, the Court has made findings of fact and conclusions of law based upon the evidence presented during the trial and the pre-trial briefs submitted by the parties. Regulatory Framework of Title IX The central question in this case is whether defendants’ termination of the women’s softball team either caused a violation of Title IX or was the perpetuation of an already existing violation by defendants. This and other issues presented in the instant case necessitate a brief analysis of the regulatory framework of Title IX. Title IX, which is codified at 20 U.S.C. § 1681, became effective on July 1, 1972, and provides that: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Defendants concede that Colorado State University is an educational institution receiving federal financial assistance, and the Court determines that CSU’s athletic department is subject to the provisions of Title IX.' The regulations interpreting the application of Title IX to athletic programs became effective on July 21,1975. These regulations require that “a recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes.” 34 C.F.R. § 106.41(c). In determining whether equal opportunities' are available, the Director of the Office of Civil Rights of the Department of Education (OCR) must consider, among other factors, “whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.” 34 C.F.R. § 106.41(c)(1). A Policy Interpretation further developing the meaning of “equal opportunity” in intercollegiate athletics was issued in 1979. See Policy Interpretation, 44 Fed.Reg. 71413 (Dec. 11, 1979). The express purpose of the Title IX Policy Interpretation is to explain the factors and standards which the Department of Education will consider in determining whether an" }, { "docid": "1757077", "title": "", "text": "an employee’s sexual harassment of a student created a hostile environment, i.e., whether it was sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program, or create a hostile or abusive educational environment, OCR considers the factors discussed in the Peer Harassment Guidance. [61 Fed.Reg. at 52,175-83]. Peer Harassment The Peer Harassment draft guidance discusses the analysis that the OCR follows, and that recipients of federal funding should use, when investigating allegations that sexual harassment of a student or students by another student or group of students (peer harassment) has created a hostile environment at an educational institution that receives federal financial assistance. [61 Fed.Reg. at 52,175]. Under Title IX and its implementing regulations, no individual may be discriminated against on the basis of sex in educational programs receiving federal financial assistance. 20 U.S.C. § 1681 et seq.; 34 C.F.R. § 106.31(b), supra n. 1. In analyzing sexual harassment claims, the Department also ap plies, as appropriate to the educational context, many of the legal principles applicable to sexual harassment in the work place, developed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a). See Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75, 112 S.Ct. 1028, 1037-38, 117 L.Ed.2d 208 (1992) (applying Title VII principles in determining that a student was entitled to protection from sexual harassment by a teacher in school under Title IX); Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 249 (2d Cir.1995) (same); Doe v. Petaluma City Sch. Dist., 830 F.Supp. 1560, 1571-72 (N.D.Cal.1993) (same), rev’d in part on other grounds, 54 F.3d 1447 (9th Cir. 1995). [61 Fed.Reg. at 52,175]. In addition, many of the principles applicable to racial harassment under Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq., and Title VII also apply to sexual harassment under Title IX. Indeed, Title IX was modeled on Title VI, Cannon v. Univ. of Chicago, 441 U.S. 677, 694, 99 S.Ct. 1946, 1956, 60 L.Ed.2d 560 (1979). [61 Fed.Reg. at 52,175 n. 2]." }, { "docid": "22467094", "title": "", "text": "relevant part, that: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. § 1681(a) (1988). Title IX is enforceable through an implied private right of action, Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), for monetary damages as well as in-junctive relief, Franklin v. Gwinnett County Pub. Sch., — U.S.—, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). Title IX was enacted to supplement the Civil Rights Act of 1964’s bans on racial discrimination in the workplace and in universities. Because the statutes share the same goals and because Title IX mirrors the substantive provisions of Title VI of the Civil Rights Act of 1964, Grove City College v. Bell, 465 U.S. 555, 566, 104 S.Ct. 1211, 1217-18, 79 L.Ed.2d 516 (1984), courts have interpreted Title IX by looking to the body of law developed under Title VI, as well as the caselaw interpreting Title VII. Mabry v. State Bd. of Community Colleges & Occupational Educ., 813 F.2d 311, 316-17 (10th Cir.), cert. denied, 484 U.S. 849, 108 S.Ct. 148, 98 L.Ed.2d 104 (1987); Sharif by Salahuddin v. New York State Educ. Dep’t, 709 F.Supp. 345, 360 (S.D.N.Y.1989). Proof of discriminatory intent is necessary to state a disparate treatment claim under Title VII. International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977); Zahorik v. Cornell Univ., 729 F.2d 85, 91 (2d Cir.1984). Looking to these analogous bodies of law, we may safely say that Title IX bars the imposition of university discipline where gender is a motivating factor in the decision to discipline. See Civil Rights Act of 1991, § 107(a), 42 U.S.C. § 2000e-2(m) (Supp. IV 1992) (“an unlawful employment practice is established when ... sex ... was a motivating factor for any employment practice, even though other factors also motivated the practice”). Plaintiffs attacking a university disciplinary proceeding" }, { "docid": "23661931", "title": "", "text": "contained in section 1681(b), a Title IX plaintiff in an athletic discrimination suit must accompany statistical evidence of disparate impact with some further evidence of discrimination, such as unmet need amongst the members of the disadvantaged gender. C. Regulatory Framework. As we mentioned above, the Secretary of HEW, following Congress’s instructions, promulgated regulations implementing Title IX in the pre-Grove City era. See 40 Fed.Reg. 24,128 (1975). Thereafter, in 1979, Congress split HEW into the Department of Health and Human Services (HHS) and the Department of Education (DED). See 20 U.S.C. §§ 3401-3510 (1988). In a wonderful example of bureaucratic muddle, the existing Title IX regulations were left within HHS’s arsenal while, at the same time, DED replicated them as part of its own regulatory armamentarium. Compare 45 C.F.R. § 86 (1992) (HHS regulations) with 34 C.F.R. § 106 (1992) (DED regulations). Both sets of regulations were still in effect when the Restoration Act passed. They are identical, save only for changes in nomenclature reflecting the reorganization of the federal bureaucracy. In short, like pretenders to the emirate of a deceased sheik, both HHS and DED lay an hereditary claim to this oasis which arises from the regulatory desert, asserting authority to enforce Title IX. Nevertheless, DED is the principle locus of ongoing enforcement activity. See 20 U.S.C. § 3441(a)(1) (transferring all education functions of HEW to DED); see also 20 U.S.C. § 3441(a)(3) (transferring education-related OCR work to DED). Therefore, like the parties, we treat DED, acting through its OCR, as the administrative agency charged with administering Title IX. Recognizing the agency’s role has important practical and legal consequences. Although DED is not a party to this appeal, we must accord its interpretation of Title IX appreciable deference. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984); see also Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965) (noting that the Supreme Court “gives great deference to the interpretation given the statute by the officers or agency charged with its administration”)." }, { "docid": "21387166", "title": "", "text": "the grounds That the statute provides no private right of action for employees. Title IX states: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance. 20 U.S.C. § 1681(a) (West 1997). Courts are divided as to whether Title IX provides a cause of action not only to students who have suffered sex discrimination in federally funded educational programs, but employees of those programs as well. This issue has not been resolved by the Supreme Court nor the Second Circuit. For the reasons set forth below, this Court is persuaded that the remedies of Title IX are limited to student plaintiffs, and Title VII is meant to offer the exclusive remedy for employment discrimination based on sex. The parameters of Title IX have been partially established by three Supreme Court cases: Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); North Haven Board of Education v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982); and Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). In Cannon, the Supreme Court found that Congress had intended a private right of action for a student plaintiff, based on the statutory purpose of “providing] individual citizens effective protection against [discriminatory] practices” at federally funded educational institutions. Id. 441 U.S. at 704-U9. Bell dealt with the issue of whether the Department of Health, Education and Welfare had authority to regulate a school’s employment practices pursuant to Title IX enforcement provisions. Bell, 456 U.S. at 540. The Court affirmed the Second Circuit’s finding that federal funds could be terminated for discrimination visited upon employees, as well as students, of educational programs. 456 U.S. at. 535-36. The Court did not address the availability of a private right of action for employees of such programs. Finally, in Franklin, the Court held that damages were available for a student-plaintiff filing an action for sexual harassment under" } ]

[ { "docid": "22132903", "title": "", "text": "agreed with Sir Robert Phillimore in the same case in the Court of Admiralty, L. R. 2 Ad. & Ec. 3, “ in his statement of the common law of England, with respect to the liability of the owner of a vessel for injuries occasioned by the unskillful navigation of his vessel, while under the control of a pilot, whom the owner -was compelled to take on board, and in whose selection he had no voice; and that this law holds that the responsibility of the owner for the acts of his servant is founded upon the presumption that the owner chooses his servant and gives him orders which he is bound to obey, and that the acts of the servant, so far as the interests of third persons are concerned, must always be considered as' the acts of the owner.” There is no occasion to refer further to the English cases in admiralty, because in England it is held that the ship is not responsible in admiralty, where the owner would not be at common law, differing in this respect from our own decisions. The China, 7 Wall. 53; Ralli v. Troop, (1894) 157 U. S. 386, 402, 420; The John G. Stevens, (1898) 170 U. S. 113, 120-122; The Barnstable, (1901) 181 U. S. 464. In The China, affirming the decision of the Circuit Court in admiralty, the liability of a vessel in rem for a collision from the fault of a compulsory pilot was put upon the maritime law, the court saying: “ The maritime law as to the position and powers of the master, and the responsibility of the vessel, is not derived from the civil law of master and servant, nor from the common law.” “ According to the admiralty law, the collision impresses upon the wrongdoing vessel a maritime lien. This the vessel carries with it into whosesoever hands it may come. It is inchoate at the moment of the wrong, and must be perfected by subsequent proceedings.” “ The proposition of the appellants would blot out this important feature of the maritime code," } ]

[ { "docid": "14037631", "title": "", "text": "S. 406, 413, 21 Sup. Ct. 831, 45 L. Ed. 1155, a case involving the liability of a ship for the negligence of a compulsory pilot: ' “There is no occasion to refer further to the English cases in admiralty, because in England it is held that the ship is not responsible in admiralty, where the owner would not be at common law, differing in this respect from our own decisions. The China, 7 Wall. 53; Ralli v. Troop (1894) 157 U. S. 386, 402, 420; The John G. Stevens (1898) 170 U. S. 113, 120-122; The Barnstable (1901) 181 U. S. 464.” 1. Lord Stowell, in Neptune II, 1 Dod. 467, had earlier laid down the rule as to the ship’s responsibility for the acts of its pilots in accordance with the general maritime law. And it is perhaps no mere accident that Sir Robert Phillimore, whose views on the maritime law were rejected by the common-law judges sitting in the Court of Appeals in the case of the Parlement Beige, supra, happened to differ from the Privy Council in the case of The Halley, L. R. 2 Ad. & Ec. 3. See The Maria, 1 W. Rob. 95, 106; The Halley, L. R. 2 P. C. 193, 201. It is also important to note that in the Siren, 7 Wall. 152, 19 L. Ed. 129, the Supreme Court recognized that a ship in the possession of the government might be held to respond in damages for the negligence of its officers resulting in' a collision where the government brought the ship into court to be adjudicated as a prize. It would seem that even the English courts have gone so far as to apply the doctrine of respond-eat superior to a public ship in admiralty where the government consents to the suit. The Athol, 1 W. Rob. 374, 382. The procedural bar removed, it would appear that even a tort liability may in some instances at least be imposed upon a ship owned and operated by the government, notwithstanding the fact that the government could not, on common-law" }, { "docid": "3645012", "title": "", "text": "Leon v. Galceran, 11 Wall. 185, 20 L. Ed. 74. In such cases, the contract being maritime, the state and federal courts exercise a concurrent jurisdiction. But in cases of tort, if the tort is non-maritime, it is not within the maritime jurisdiction, and relief is to be had in a common-law action in the state courts. The admiralty jurisdiction, of course, extends to maritime contracts; for such contracts are regulated and enforced by maritime law. Ben edict’s Admiralty (4th. Ed.) § 143. Assuming that the plaintiff was employed as a stevedore, his contract to render service in loading or unloading a ship is to be regarded as a maritime contract. In the case of New Jersey Navigation Co. v. Merchants Bank, 6 How. 344, 12 L. Ed. 465, Mr. Justice Nelson, speaking for the court as to the admiralty jurisdiction in matters of contract, stated that the inquiry was as to— “the nature and subject-matter of the contract, whether it was a maritime contract, and the service a maritime service, to be performed upon the sea or upon waters within the ebb and flow of the tide.” The last distinction, based on the ebb and flow of the tide, has since been abrogated by later decisions of the court; for since the case of The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. Ed. 1058, decided in 1851, it has been established that the admiralty and maritime jurisdiction of the federal government is not limited to tide waters but extends to all public navigable waters where commerce is carried on between the states or with a foreign nation. And in The Robert W. Parsons, 191 U. S. 17, 24 Sup. Ct. 8, 48 L. Ed. 73, decided in 1903, it was declared to extend to the Erie Canal, although wholly within a single state, as being a great highway of commerce between ports in different states and foreign countries. In The Belfast, 7 Wall. 624, 19 L. Ed. 266, Mr. Justice Clifford, speaking of the jurisdiction of the admiralty in matters of contract, stated that it depended" }, { "docid": "14262430", "title": "", "text": "is cited and approved in Railway Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 261, 37 L. Ed. 97, where it was held that a corporation is not liable to exemplary or’ punitive damages in the absence of evidence that it actually participated in or ratified such act, or was guilty of such willfulness or recklessness as amounted to criminality and should be punished. No case has been cited to support the claim that in a proceeding in rem the offending thing can be made to answer for damages other than those actually received. Nor is any reason perceived why such damages should be allowed. In proceedings in rem in the English admiralty the very fact that damage was caused by the willful misconduct of the master of a vessel is sufficient reason for dismissing the libel, inasmuch as the English admiralty treats the process in rem as a mere meahs to enforce the jus in personam. In the American admiralty a 'tort creates a maritime lien or privilege, — a jus in re. This lien or privilege, however, is only as security for actual damages for the wrong done, for which the ship herself is bound to make compensation. The John G. Stevens, 170 U. S. 113, 122, 18 Sup. Ct. 544, 42 L. Ed. 969; The China, 7 Wall. 53, 19 L. Ed. 67. In the present case the commissioner has awarded libelant the full amount of damages claimed in his libel. The report of the commissioner is accepted, and the motion for exemplary damages is denied." }, { "docid": "3645018", "title": "", "text": "on with other states or foreign countries. The Montello, 20 Wall. 430, 22 L. Ed. 391. If the tort is maritime, the admiralty has jurisdiction, without reference to the nationality of the vessel on board of which it may have been committed, or that of the parties to it. Bernhard v. Creene, 3 Fed. Cas. 279, No. 1,349. And the test by which it is determined whether the tort is a maritime one depends upon the locality of the person or thing injured at the time the injury is inflicted. In Thomas v. Lane, 2 Sumn. 1, 9, 23 Fed. Cas. 957, No. 13.902, Mr.'Justice Story, in 1813, declared that he had always understood that the jurisdiction of admiralty was exclusively dependent upon the locality of the act. This rule has since been frequently declared by the Supreme Court. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 59, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157; Martin v. West, 222 U. S. 191, 32 Sup. Ct. 42, 56 L. Ed. 159, 36 L. R. A. (N. S.) 592; Panama R. Co. v. Napier Shipping Co., 166 U. S. 280, 17 Sup. Ct. 572, 41 L. Ed. 1004; Atlee v. Northwestern Union Packet Co., 21 Wall. 389, 22 L. Ed. 619; The Rock Island Bridge, 6 Wall. 213, 18 L. Ed. 753; The Steamboat Hine v. Trevor, 4 Wall. 555, 18 L. Ed. 451; The Plymouth, 3 Wall. 20, 18 L. Ed. 125; Philadelphia, etc., R. Co. v. Philadelphia, etc., Steam Towboat Co., 23 How, 209, 16 L. Ed. 433. The term “tort,” when used in reference to the admiralty jurisdiction, has been held not to be confined to wrongs or injuries committed by direct forcé, but to include those suffered in consequence of the negligence or malfeasance of others, when the remedy at common law is by action on the case. Leathers v. Blessing, 105 U. S. 626, 26 L. Ed. 1192. The dividing line between the admiralty and the common-law jurisdiction is correctly stated in Benedict’s Admiralty (4th Ed.) § 232." }, { "docid": "4170813", "title": "", "text": "applied in the admiralty, if all the parties are before the court, and each of the wrong-doers is able to respond Cor Ills share of the damage. Subject lo that qualification, tlie remedy of the innocent party is substantially ihe same in tlie admiralty as in an action at law, the rule being, that in both he is entitled to ail entire compensation from the wrongdoer for the injury suffered by the collision.” In The Chattahoochee, 173 U. S. 540, 19 Sup. Ct. 491, 43 L. Ed. 801, it was held that notwithstanding the exemptions given by the Harter Act, an innocent cargo-owner is entitled to recover his entire ■damages from the carrying and non-carrying vessel, and that the latter’s right, set-off or recovery of contribution from the carrying vessel is not affected. These, .and other authorities, only leave the question here, was the libellant, in effect, a wrong-doer in the sense applied in those cases? It was not a wrong-doer but it had stipulated away its rights so far as the Manhattan was concerned, and cannot be deemed an innocent party- The libellant cites and relies upon the greatly litigated cases arising out of the New York-Conemaugh collision in 1891, viz: The New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126; Ex parte Union Steamboat Company, 178 U. S. 317, 20 Sup. Ct. 904, 44 L. Ed. 1084; The Conemaugh, 189 U. S. 363, 23 Sup. Ct. 504, 47 L. Ed. 854; Erie R. R. Co. v. Erie Transportation Co., 204 U. S. 220, 27 Sup. Ct. 246, 51 L. Ed. 450. In the beginning of the opinion in the last named case, Mr. Justice Holmes described the litigation as follows: “Tills is a libel in admiralty brought by the petitioner as successor in corporate identity to the Union Steamboat Company, to recover a part of a sum paid by it to the respondent as the result of previous admiralty proceedings which came before this court several times. The former proceedings were begun by the respondent, as owner of the propeller Conemaugh and bailee" }, { "docid": "14037630", "title": "", "text": "considered novel or revolutionary. The executive branch of our government, it may be assumed, will not be. slow to bring to the attention of the judiciary by appropriate suggestion any matter of international courtesy' or concern. The failure of our State Department to take any action in these cases is not without significance. (Hearings before Committee on Judiciary in H. R. 7124, Suits in Admiralty Act, 66th Congress, 1st Sess., August 26, 1919, p. 38), although I do not 'mean to say that immunity should be refused in a clear case simply because the executive branch has failed to act. The English decisions above mentioned seem to proceed on the principle that a ship cannot be libeled in rem where the owner cannot under the common law be impleaded in personam. This doctrine, so far as effective, would appear to be peculiar to English admiralty and is not accepted as a part of the maritime law in this and other countries. As Justice Gray stated in Homer Ramsdell Co. v. Com. Gen. Trans., 182 U. S. 406, 413, 21 Sup. Ct. 831, 45 L. Ed. 1155, a case involving the liability of a ship for the negligence of a compulsory pilot: ' “There is no occasion to refer further to the English cases in admiralty, because in England it is held that the ship is not responsible in admiralty, where the owner would not be at common law, differing in this respect from our own decisions. The China, 7 Wall. 53; Ralli v. Troop (1894) 157 U. S. 386, 402, 420; The John G. Stevens (1898) 170 U. S. 113, 120-122; The Barnstable (1901) 181 U. S. 464.” 1. Lord Stowell, in Neptune II, 1 Dod. 467, had earlier laid down the rule as to the ship’s responsibility for the acts of its pilots in accordance with the general maritime law. And it is perhaps no mere accident that Sir Robert Phillimore, whose views on the maritime law were rejected by the common-law judges sitting in the Court of Appeals in the case of the Parlement Beige, supra, happened to" }, { "docid": "17717759", "title": "", "text": "the United States that a libel in admiralty may be maintained against the ship for any personal injury for wrhieh the owners are liable under the general law, independently of any loGal statute. Accordingly, passengers have often maintained libels, as well against the ship carrying them as against other ships, for personal injuries caused by negligence for which the owners were responsible. The New World, 16 How. 469; The Washington, 9 Wall. 513; The Juniata, 93 U. S. 337; The City of Panama, 101 U. S. 453, 462. The sixteenth admiralty rule, which directs that ‘in all suits for an assault or beating upon the high seas, or elsewhere within, the admiralty and maritime jurisdiction, the suit shall be in personam only,’ does not affect libels for negligence.” In The John G. Stevens, 170 U. S. 114, 120, 121, 18 Sup. Ct. 544, Mr. Justice Gray, speaking for the supreme court, said: “The foundation of the rule that collision gives to the party injured a jus in re in the offending ship is the principle of the maritime law that the ship, by whomsoever owned or navigated, is considered as herself the wrongdoer, liable for the tort, and subject to a maritime lien for the damages. The principle, as has been observed by careful text writers on both sides of the Atlantic, has been more clearly established and more fully carried out in this country than in England. Henry, Adm. Jur. & Proc. § 75; Mars. Mar. Coll. (3d Ed.) 93.” And he cites the following passage from The Malek Adhel, 2 How. 210, 234: “The ship is also, by the general maritime law, held responsible for the torts and misconduct of the master and crew thereof, whether arising from negligence or a willful disregard of duty; as, for example, in cases of collision and other wrongs done upon the high seas, or elsewhere within the admiralty and maritime jurisdiction, upon the general policy of that law, which looks to the instrument itself used as the means of the mischief, as the best and surest pledge for the compensation to" }, { "docid": "5386150", "title": "", "text": "causes of action for injury by a cable negligently maintained were sustained, and cross-libels for injury to the cable were dismissed, without question as to the jurisdiction of admiralty. See, also, the cases of Ladd v. Foster (D. C.) 31 Fed. 827, Albina Ferry Co. v. The Imperial (D. C.) 38 Fed. 614, 3 L. R. A. 234, and The Anita Berwind (D. C.) 107 Fed. 721, where recovery was allowed in admiralty for damages to a vessel by cables. In the case of The William H. Bailey (D. C.) 100 Fed. 115, an action for damages for cutting a cable fouled by an anchor was considered, and decree given. The statute (Act Feb. 29, 1888, 25 Stat. c. 17, § 3 [Comp. St. 1913, § 10089]) forbidding the cutting of a cable, except to save life or limb, was relied upon as one of the grounds of liability, but no question of jurisdiction was raised. On the other hand, the claimant has cited the cases of The Plymouth, 70 U. S. (3 Wall.) 20, 18 L. Ed. 125, The Blackheath, 195 U. S. 361, 25 Sup. Ct. 46, 49 L. Ed. 236, Cleveland Terminal R. R. v. Steamship Co., 208 U. S. 316, 28 Sup. Ct. 414, 52 L. Ed. 508, 13 Ann. Cas. 1215, and the many cases cited in those opinions, as well as the case of The Poughkeepsie and The Homer Ramsdell (D. C.) 162 Fed. 494, as authority for the proposition that injury by a vessel, or from fire on a vessel, to a structure upon land, or connected with the land in such a way that the actual accident does not occur within the physical limits of the admiralty jurisdiction, gives no right of action in admiralty. It argues that no action can be maintained from the mere fact that a boat or its appliances was the instrument through which the force was transmitted which caused the injury at the place where it occurred. The case of The Blackheath, supra, is always referred to, and argument drawn either way according to the facts of" }, { "docid": "2244467", "title": "", "text": "Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. Said the court in Grant Smith-Porter Co. v. Rohde, 257 U. S. 469, 42 Sup. Ct. 157, 66 L. Ed. 321: “The statute of the state applies and defines the rights and liabilities of the parties. The employees may assert his claim against the Industrial Accident Fund to which both he and the employer have contributed as provided by the statute, but he cannot recover damages in an admiralty court.” It is intimated that, inasmuch as the libel here contains all the essential averments, of a complaint in a common-law action under the Oregon Compensation Law, it should have been transferred to the common-law side of the court below for trial. But the contention is fully met by the fact that the libel contains no allegation of the diversity of citizenship essential to give jurisdiction to a federal court. Nor can the appellant, in this proceeding, avail himself of the provision of the original Judiciary Act as expressed in subdivision 8 of section 563, Rev. Stats. (Comp. St. § 991 [3]), extending the ju dicial power of the United States to civil causes of admiralty and maritime jurisdiction, “saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it,” for that provision refers only to remedies for enforcement of the federal maritime law and does not create substantive rights or assent to their creation by the states. Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 Sup. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145; Union Fish Co. v. Erickson, 248 U. S. 308, 39 Sup. Ct. 112, 63 L. Ed. 261; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38 Sup. Ct. 501, 62 L. Ed. 1171; Southern Pacific Co. v. Jensen, supra. The decree is affirmed." }, { "docid": "16039529", "title": "", "text": "court, establish that the “compulsory pilot” was BBC. It was in complete control of the salvage operation and exercised that control by signals to the master to direct the backing of the ship when the line became fouled in the propeller. Yet BBC as the operator was not liable in personam because its contract with the government made it liable only for damage or loss as a result of willful misconduct. No such showing was made. In addition, the settlement agreement released BBC from claims for willful negligence which was the only negligence alleged (fourth cause of action). Here then the “compulsory pilot” has been released and the question is whether an in rem maritime claim on the vessel may be imposed nonetheless. We are of the opinion that it cannot and sustain the trial court’s holding. Only two cases were cited by the government on the point. One of them, Homer Ramsdell Transportation Co. v. La Compagnie Générale Transatlantique, 182 U.S. 406, 21 S.Ct 831, 45 L.Ed. 1155 (1901), is not in point because it is an action at law and not in admiralty. The authority of The China, 74 U.S. (7 Wall.) 53, 19 L.Ed. 67 (1868), for the proposition that an in rem libel against the ship may be maintained when an action against its owner or operator can not has been weakened if not destroyed by subsequent cases. In Guzman v. Pichirilo, 369 U.S. 698, 82 S.Ct. 1095, 8 L. Ed.2d 205 (1962), where the question was liability based upon unseaworthiness, the Court declined to clearly decide the issue. See Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963) (where the Court also declined to decide the question). In the courts of appeals it appears clear that most, if not all, have held that in personam liability is a sine qua non for in rem liability against the ship. Ramos v. Beauregard, Inc., 423 F.2d 916 (1st Cir.), cert. denied, 400 U.S. 865, 91 S.Ct. 101, 27 L. Ed.2d 104 (1970); Alcoa Steamship Co. v. Rodriguez, 376 F.2d 35 (1st Cir.)," }, { "docid": "2073052", "title": "", "text": "of the admiralty. It is enough to say that in the performance of its contract to plow the prairies of the state of Illinois, or in the construction of a railway embankment upon land, to dig up the bed of the lake, and slioot the earth through tubes for deposit on the land adjacent, it was not so employed. The supplies furnished to enable the dredge to perform a contract not maritime cannot attain to the dignity of a maritime lien.” Upon the above authorities, it would seem that the question of jurisdiction here should be decided in favor of the respondent, but the admiralty jurisdiction has been broadened very considerably by the recent decision of the Supreme Court in The Blackheath, 195 U. S. 361, 25 Sup. Ct. 46, 49 L. Ed. 236. That was a question of the jurisdiction of the District Court for the Southern District of Alabama, arising out of the destruction of a beacon fastened to piles driven into the bottom of the Mobile river or bay by a navigating vessel. The court below, Toulmin, J. (D. C.) 122 Fed. 112, declined jurisdiction under the authorities, but the case was certified to the Supreme Court and it was ther'e held that the action was maintainable, the court, Mr. Justice Holmes, saving (page 365, of 195 U. S., page 47, of 25 Sup. Ct. [49 L. Ed. 236]) : “The precise acopie of admiralty jurisdiction is not a matter of obvious principle or of very accurate history. . As to principle, it is clear that if the beacon had been in fault and had hurt the ship a libel could have been maintained against a private owner, although, no't in rem. Philadelphia, Wilmington & Baltimore R. R. v. Philadelphia & Havre de Grace Steam Towboat Co., 23 How. 209, 16 L. Ed. 433; Atlee v. Packet Co., 21 Wall. 389, 22 L. Ed. 619; Panama Railroad v. Napier Shipping Co., 166 U. S. 280, 17 Sup. Ct. 572, 41 L. Ed. 1004. Compare The Rock Island Bridge, 6 Wall. 213, 18 L. Ed. 753, But, as" }, { "docid": "2244466", "title": "", "text": "hold that engineers and employees of a dredge engaged in deepening navigable waters and capable of being towed from place to place are seamen. There can be no doubt that for his injuries which were received while on board the vessel the appellant may bring a libel against his employer in the admiralty for damages as for a maritime tort. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157. Yet in such an action, in an admiralty court, the doctrine of fellow servant still obtains. But the appellant claims the benefit of the provisions of the Oregon Compensation Law (Laws 1913, p. 188), among which is the abolition of the doctrine of fellow servant, and he contends that an admiralty court is bound to take notice of that law. The state, however, has no authority to provide rules for the enforcement of rights in admiralty. Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. Said the court in Grant Smith-Porter Co. v. Rohde, 257 U. S. 469, 42 Sup. Ct. 157, 66 L. Ed. 321: “The statute of the state applies and defines the rights and liabilities of the parties. The employees may assert his claim against the Industrial Accident Fund to which both he and the employer have contributed as provided by the statute, but he cannot recover damages in an admiralty court.” It is intimated that, inasmuch as the libel here contains all the essential averments, of a complaint in a common-law action under the Oregon Compensation Law, it should have been transferred to the common-law side of the court below for trial. But the contention is fully met by the fact that the libel contains no allegation of the diversity of citizenship essential to give jurisdiction to a federal court. Nor can the appellant, in this proceeding, avail himself of the provision of the original Judiciary Act as expressed in subdivision 8 of section 563," }, { "docid": "7314237", "title": "", "text": "all cases of admiralty and maritime jurisdiction.” Compare Downes v. Bidwell, 182 U. S. 244, 266, 21 S. Ct. 770 (45 L. Ed. 1088); American Ins. Co. v. Canter, 1 Pet. 511, 7 L. Ed. 242. The District Court of Porto Rico is not a constitutional court, whose judicial power extends “to all cases of admiralty and maritime jurisdiction,” under article 3, § 2; it is a legislative court, created under the power of the national government to acquire territory and to provide for the government thereof. Compare Benner v. Porter, 9 How. 235, 13 L. Ed. 119; Clinton v. Englebrecht, 13 Wall. 434, 20 L. Ed. 659; McAllister v. United States, 141 U. S. 174, 180, 11 Sup. Ct. 949, 35 L. Ed. 693. We think that if Congress had intended, by the Organic Act, to extend the admiralty provisions of the Federal Constitution to Porto Rico, language, apt and explicitly expressive of that purpose, would have been used; and that the language of § 41, granting in general terms the same jurisdiction to the District Court of the United States in Porto Rico as have the District Courts of the United States does not import an extension of the substantive rights and obligations of our admiralty law to Porto Rico. We might, if necessary, as we think it is not, find further support for our conclusions as to the sound interpretation of the applicable provisions of the Organic Act, supra, by reference to the two attempts by Congress to limit, within the United States, the doctrine of the Jensen Case. That ease was decided on May 21, 1917. It held the New York Compensation Act inapplicable to maritime laborers. On October 6, 1917, Congress, by 40 Stat. 395, amended Judicial Code, § 24(3), being Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 991(3), by adding to the saving clause as to common-law remedies the following: “And to claimants the rights and remedies under the Workmen’s Compensation Law of any state.” An analogous amendment was also made to section 256(3) of the Judicial Code (section 1233). .This attempt" }, { "docid": "9424135", "title": "", "text": "was extended in Re Putnam, 55 F.(2d) 73 (C. C. A. 2d, 1932), to cover a similar situation, except that the state court suit was brought after the petition for limitation of liability had been filed in the federal court. Canada Malting Co. v. Paterson Steamships, 285 U. S. 413, 52 S. Ct. 413, 415, 76 L. Ed. 837 (1932), presented the situation of a collision of two Canadian ships in American waters while en route from one Canadian port to another. While suit was pending in the Canadian courts, libels were filed by cargo owners in the Federal District Court in New York to take advantage of the more favorable American maritime law. Largely because all the parties and witnesses were Canadian residents, the District Court refused to take jurisdiction. This was held to be a proper exercise of its discretion, the Supreme Court saying: “Obviously, the proposition that a court having jurisdiction must exercise it, is not universally true; else the admiralty court could never decline jurisdiction on the ground that the litigation is between, foreigners. Nor is it true of courts ad-' ministering other systems of our law. Courts of equity and of law also occasionally decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or nonresidents, or where for kindred reasons the litigation can more appropriately be conducted in a foreign tribunal. The decisions relied upon by libel-ants are inapposite for several reasons. * * * McClellan v. Carland, 217 U. S. 268, 281, 30 S. Ct. 501, 54 L. Ed. 762, denied the right to abdicate to state courts jurisdiction which the Constitution in positive terms intrusts to the federal judiciary.” The basis of federal jurisdiction in McClellan v. Carland was diversity of citizenship; a statutory, not a constitutional right of recourse to the federal courts. Such a right seems no moi'e absolute than any other statutory right of recourse; specifically, than the right asserted in the above-cited admiralty cases, especially in Langnes v. Green where “the federal proceeding was peculiarly and exclusively federal.” See my decision in Stansbury" }, { "docid": "3645028", "title": "", "text": "in the probable fact that the tort was maritime, and occurred on the water, as it appears that he was employed as a bargeman and fell into the river. In Western Fuel Co. v. Garcia, 257 U. S. 233, 42 Sup. Ct. 89, 66 L. Ed.-, decided by the Supreme Court on December 5, 1921, and not yet [officially] reported, the facts were as follows: A person who was employed as a stevedore on a vessel anchored in San Francisco Bay, and, discharging her cargo, was killed in the hold of the vessel. He was working under a maritime contract, and was killed by coal which it was alleged was negligently permitted to fall from a steel hoisting bucket. The California Code gave a right of action for death caused by wrongful act or negligence. The court held that, although by the general maritime law no suit could be maintained in the admiralty courts of the United States, nevertheless, where death upon navigable waters follows from a maritime tort committed on such waters, within a state whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libel in personam for the damages sustained by those to whom such right is given. The court declared': “The subject is maritime and local in character, and the specified modification of or supplement to.the rule applied in admiralty courts, when following the common law, will not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in international or state relations.” And the court held the California local act applicable, and also applied the local statutory limitation, which required such actions to be brought within one year. In Grant Smith-Porter Ship Co. v. Rhode, 257 U. S. 469, 42 Sup. Ct. 157, 66 L. Ed.-, decided by the Supreme Court on January 3, 1922, and not yet [officially] reported, the facts were as follows: At the time Rhode was injured he was at work as a carpenter on a partially completed" }, { "docid": "12656418", "title": "", "text": "206, 19 Sup. Ct. 146, 43 L. Ed. 413. In The Robert W. Parsons, 191 U. S. 17, 37, 24 Sup. Ct. 8, 15 (48 L. Ed. 73) in speaking for the Supreme Court, Mr. Justice Brown said: “In all these eases the distinction is sharply drawn between a common-law action in personam, with a concurrent attachment against the goods and chattels of the defendant, subject, of course, to any existing liens, and a proceeding in rem against, the vessel as the debtor or ‘offending tiling,’ which is the characteristic of a suit in admiralty. The same distinction is carefully preserved in the general admiralty rules prescribed by this court; rale 2 declaring that in suits in personam the mesne process may be ‘by a warrant of arrest of the person of the defendant, with a clause therein that if he cannot be found, to attach his goods and chattels to the amount sued for’; and rule 0. that in suits and proceedings in rein the process shall be by warrant of arrest of the ship, goods or other things to be arrested, with public notice to be given in the newspapers. The former is in strict analogy to a common-law proceeding and is a concurrent remedy. The latter is a proceeding distinctively maritime, of which exclusive jurisdiction is given to the admiralty courts.” Marsden, on Collisions at Sea, at pages 88 and 165, refers to The Bold Buccleugli as a leading authority. In the case at bar the libelant has a lien given by the general maritime law of the United States. Such lien may be enforced by fin action in rem. This right is given by the laws of the United States; and the laws of the United Stales are supreme in our courts over French law. There appears, indeed, to be no reason in French law, under the principle of reciprocity, for dismissing the libel and leaving the question to the French courts, in a case which has not already proceeded to judgment. Hilton v. Guyot, 159 U. S. 113, 16 Sup. Ct. 139, 40 L. Ed." }, { "docid": "23396971", "title": "", "text": "S. 205, 28 Sup. Ct. 91, 52 L. Ed. 171, 12 Ann. Cas. 693. In short, the rule first laid down in Lumley v. Gye, 2 E. & B. 216, has been fully accepted, and is even extended beyond cases where the injured party has a contract. Truax v. Raich, 239 U. S. 33, 36 Sup. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B. 283; Hitchman Coal Co. v. Mitchell, 245 U. S. 229, 38 Sup. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461. Under the facts at bar the Polish Company did commit a tort in directing the master to deviate and reLurn to New York. Indeed it was they who primarily broke the contract, the Acme Company was nearly, if not quite, a silent and helpless dummy. I cannot see how the rule could be more aptly illustrated than in such a case. Was it, then, a maritime tort over which the admiralty will take jurisdiction? Confessedly, that question depends rather on historical than a priori considerations. Ordinarily it is the locus of the tort which governs, and where, the injury is on the water though the defendant’s act was on the laud, that locus is determined by the water. Hermann v. Port Blakely Mill Co. (D. C.) 69 Fed. 646; Atlee v. Packet Co., 21 Wall. 389, 22 L. Ed. 619; The Normannia (D. C.) 62 Fed. 469, 472; Greenwood v. Westport (D. C.) 60 Fed. 560. Perhaps, not every tort committed at sea is within the jurisdiction of an admiralty court. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 60, 61, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157. At least for the purposes of this case I may assume that the injury must be maritime in its character as much as though the case sounded in contract. The injury here was the breach of the contract of carriage itself, the effective cause of which was the act of the Polish Company. Obviously if that" }, { "docid": "7314236", "title": "", "text": "438, 440 (64 L. Ed. 834, 11 A. L. A. 1145). Compare Second Employers’ Liability Cases, 223 U. S. 1, 55, 32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44. So, also, are state laws constantly enforced in federal courts. If the Constitution is so little in Porto Rico as not to carry there article 1, § 8, requiring uniformity as to “duties, imports and excises throughout the United States” (Downes v. Bidwell, 182 U. S. 284, 21 S. Ct. 770, 45 L. Ed. 1088), or article 3, § 1, providing that “the judicial power of the United States shall be vested” in judges who “shall hold their offices during good behavior” (Organic Act, supra, § 41 [section 3803qq]), there is no tenable ground for holding it there, as did the court below, under an implied public policy as to desirable Uniformity of maritime law, arising simply as a matter of interpretation from article 3, § 2, which provides that “the judicial power shall extend * * * to all cases of admiralty and maritime jurisdiction.” Compare Downes v. Bidwell, 182 U. S. 244, 266, 21 S. Ct. 770 (45 L. Ed. 1088); American Ins. Co. v. Canter, 1 Pet. 511, 7 L. Ed. 242. The District Court of Porto Rico is not a constitutional court, whose judicial power extends “to all cases of admiralty and maritime jurisdiction,” under article 3, § 2; it is a legislative court, created under the power of the national government to acquire territory and to provide for the government thereof. Compare Benner v. Porter, 9 How. 235, 13 L. Ed. 119; Clinton v. Englebrecht, 13 Wall. 434, 20 L. Ed. 659; McAllister v. United States, 141 U. S. 174, 180, 11 Sup. Ct. 949, 35 L. Ed. 693. We think that if Congress had intended, by the Organic Act, to extend the admiralty provisions of the Federal Constitution to Porto Rico, language, apt and explicitly expressive of that purpose, would have been used; and that the language of § 41, granting in general terms the same jurisdiction to" }, { "docid": "9491096", "title": "", "text": "to limitation. We conclude that there was neither privity nor knowledge, on the part of the owner, as to the lack of the fusible plug, and hence that the owner is entitled to limitation of liability. 4. Liability for Death. Under the maritime law, unaided by statute, as under the common law, negligently causing death does not give rise to liability in faYor of the estate of the deceased person or his surviving kin (The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358); but where one ship wrongfully inflicted an injury, causing the ■death of one upon another ship, and the injury was inflicted on the high seas, and while both ships belonged in a state the laws of which gave .an action for wrongful death, it was held that the right o E action thereby given could be enforced in any proper court of admiralty (The Hamilton, 207 U. S. 398, 28 Sup. Ct. 133, 52 L. Ed. 264). It was later held (Southern Pac. Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Chelentis v. Luckenback, supra) that a state statute establishing a general code of liability for injuries as between master and servant would not be enforced in admiralty as between owner and seamen. It may be urged with some force that, in The Hamilton, the state statute was accepted because it was not inconsistent with any code of maritime law, but was rather supplementary to the already existing liability in damages for such an injury, for, if the injury had been of a degree not resulting in death, admiralty would have required no aid from the state statute to give redress. On the other hand, it may be contended that, in the Jensen Case, the state compensation act was rejected, because, as between master and servant—owner and seaman—there was an existing code of maritime law, which denied indemnity for negligence, with which code the compensation act was inconsistent, and so, by analogy, that a death act" }, { "docid": "6120431", "title": "", "text": "is a defense against their claim. But the libelants claim that, even if the owners of the Oceánica in a suit in personam could not be held by the owners of the barge for the loss of the barge because of the contract, still that the vessel herself is liable to them in rem. The authorities cited only show that a vessel guilty, of a tort is personified in the admiralty, and may sometimes be held liable in rem when her owners arc not liable at all. For example, a vessel may be condemned as guilty of engaging in piracy, her owners not being liable at all, because it was without their knowledge or privity (The Malek Adhel, 3 How. 310, 11 L. Ed. 339); or a vessel may be held at fault in rem for a collision because of the negligence of a compulsory pilot, when her owners would not be liable in personam (The China, 7 Wall. 53, 19 L. Ed. 67; and see Homer Ramsdell Co. v. Compagnie Générale Transatlantique, 182 U. S. 406, 21 Sup. Ct. 831, 45 L. Ed. 1155); or a vessel demised by charter party may be liable in rem for negligence of the owner pro hac vice, when her owners would not be responsible in personam (The Barnstable, 181 U. S. 464, 467, 21 Sup. Ct. 684, 45 L. Ed. 954). The subject has been considered by this court in The W. G. Mason, 143 Fed. 913, 917, 74 C. C. A. 83, in which Judge Wallace pointed out that according to the law of this country liability in rem is not necessarily coextensive with the personal liability of the owner. No doubt a suit in rem against a vessel for negligence is a suit ex delicto, even if there has been a contract between the parties. Suits arising out of negligence are ex delicto, even when charter parties or bills of lading regulate the rights of the parties. This fact, however, does not nullify the contract. In such suits against a vessel in rem the agreement is always pleaded and proved." } ]

[ { "docid": "773043", "title": "", "text": "afforded plaintiff an opportunity to respond, but plaintiff failed to do so. Defendants’ motion for summary judgment is ripe for consideration. In Parratt v. Taylor, supra, the Supreme Court recognized that where an inmate has suffered negligent deprivation of his property by a State employee and the loss is not the result of some established State procedure, a postdeprivation State tort remedy may fully provide the process due under the Fourteenth Amendment. In Parratt the availability of a State remedy providing plaintiff with an opportunity to be heard, id. at 539-40, 101 S.Ct. at 1914-15, vitiated plaintiffs claim under § 1983 because plaintiff had not been deprived of his property without due process of law. Id. at 537, 101 S.Ct. at 1913. The Nebraska statute which the Court found satisfied procedural due process requirements in Parratt provides a right of action to persons who believe they have suffered tortious loss at the hands of the State. Id. at 543, 101 S.Ct. at 1916. The Virginia Tort Claims Act, Va.Code § 8.01-195.1 et seq. (Supp.1982), a roughly similar statute that entitles plaintiffs to sue the State for tortious property loss, went into effect on 1 July 1982. However, this new statute applies only to claims accruing on or after the effective date and cannot redress the alleged deprivation in this case. Thus, the Court must consider whether Virginia provided a remedy at the time of the deprivation that would redress plaintiff’s asserted loss and, if so, whether such remedy satisfies procedural due process requirements. Since Parratt v. Taylor, most district courts in Virginia have determined that the Commonwealth does provide a remedy for a deprivation of property such as plaintiff asserts: plaintiff could bring an action against defendants in State court for conversion or detinue and be “fully compensated ... for the property loss he suffered.” 451 U.S. at 544, 101 S.Ct. at 1917. See Holmes v. Wampler, 546 F.Supp. 500 (E.D. Va.1982); Irshad v. Spann, 543 F.Supp. 922 (E.D.Va.1982); Frazier v. Collins, 538 F.Supp. 603 (E.D.Va.1982); Graham v. Mitchell, 529 F.Supp. 622 (E.D.Va.1982); Whorley v. Karr, 534 F.Supp. 88 (W.D.Va." } ]

[ { "docid": "773049", "title": "", "text": "of a sovereign immunity bar; therefore, plaintiff must bring his negligence claim in State court. Id. Judge Williams restated this reasoning in Frazier v. Collins, 544 F.Supp. 109 (E.D.Va.1982). The conclusion that due process would tolerate a State sovereign immunity defense because due process tolerates a federal qualified immunity defense in § 1983 actions does not squarely answer the concern Judge Bryan raised in Subica v. Hutto that the likelihood of receiving a remedy has some bearing on the adequacy of due process. Judge Bryan concluded specifically that if in every tort suit brought by a prisoner his remedy is barred because of sovereign immunity, the right to a hearing would not satisfy the requirements of due process. Upon careful consideration of the question, however, the Court cannot find that due process under Parratt requires any more than the provision of a hearing, see 451 U.S. at 544, 101 S.Ct. at 1917, before a body with authority to grant a remedy. In a fundamental statement on the issue, the Supreme Court said that “many controversies have raged about the cryptic and abstract words of the Due Process Clause, but there can be no doubt that at a minimum they require that deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950). “The Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged.” Logan v. Zimmerman, 455 U.S. 422, 433, 102 S.Ct. 1148, 1156, 71 L.Ed.2d 265, 276 (1982). These statements of the requirements of due process simply make no reference to the adequacy of the remedy afforded. The Supreme Court’s recent holding in Logan v. Zimmerman, 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), lends support to the conclusion that due process specifies the nature of the hearing, not of the remedy. In the situation reviewed in Logan, the plaintiff’s State Fair Employment Practices Act (F.E.P.A.)" }, { "docid": "5487709", "title": "", "text": "Court agreed that the plaintiff had been deprived of property within the meaning of the fourteenth amendment. Id. at 536-537, 101 S.Ct. at 1913-1914. The Court held, however, that the plaintiff had not stated a claim for a violation of the due process clause of the fourteenth amendment. Rejecting the proposition that due process always requires a hearing before the initial property deprivation, Justice Rehnquist stated in a plurality opinion that a meaningful postdeprivation hearing satisfies the requirements of procedural due process in situations where the property deprivation does not result from established state procedure and the state cannot practically provide a meaningful predeprivation hearing. Id. at 540-541, 101 S.Ct. at 1915-1916. Applying this principle to the plaintiff’s allegation that he was tortiously deprived of his property as a result of a state employee’s random and unauthorized act, the Court concluded that the plaintiff was not deprived of property without due process of law because the state’s statutory tort procedure provided him with a postdeprivation remedy that satisfied the requirements of procedural due process. Id. at 543-544,101 S.Ct. at 1916-1917. Like the plaintiff in Parratt, Daniels alleges that he was injured by the negligence of a state employee. Unlike in Parratt, Daniels’s claim is for bodily injury rather than for the loss of personal property. “Liberty” within the meaning of the fourteenth amendment includes the right to be free from “unjustified intrusions on personal security.” Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977). Bodily injury resulting from a state official’s negligence therefore deprives a person of a liberty interest protected by the fourteenth amendment. This case thus presents the question whether the Parratt analysis applies to nonproperty deprivations, such as a negligent deprivation of a liberty interest. Parratt concerned a property interest; its scope, however, “cannot easily be limited to negligent deprivations of property.” Palmer v. Hudson, 697 F.2d 1220, 1222 (4th Cir.1983), cert. granted, — U.S. —, 103 S.Ct. 3535, 77 L.Ed.2d 1386 (1983). Because Parratt’s underlying principle is that a postdeprivation hearing will satisfy procedural due process when there is no" }, { "docid": "5487722", "title": "", "text": "significant distinction between sovereign immunity and other defenses which persuades us that Daniels is denied an adequate postdeprivation remedy by the possibility that Williams may be entitled to immunity. In sum, Virginia’s common law tort action provides Daniels with a remedy which can fully compensate him for the alleged liberty deprivation. Thus, despite the possibility of a sovereign immunity defense, we hold that Daniels possesses a remedy which provides him with a “meaningful opportunity subsequent to the initial taking for a determination of rights and liabilities.” 451 U.S. at 541, 101 S.Ct. at 1916. Consequently, we conclude that Daniels has failed to state an actionable claim under section 1983 because he has not been deprived of liberty without due process of law. The judgment of the district court is AFFIRMED. . Exhaustion of state judicial or administrative remedies is not a prerequisite to section 1983 actions, Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961), except for those cases falling under the narrow exhaustion scheme embodied in 42 U.S.C. § 1997. See Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). Parratt does not change this rule. An exhaustion requirement would merely require a plaintiff to exhaust his state remedies before bringing a section 1983 action in federal court. Parratt, by contrast, stands for the proposition that a plaintiff may sue only in state court if he fails to state a procedural due process claim under section 1983. Unlike an exhaustion requirement, which is based upon principles of comity, the Parratt analysis is based upon the concept that there is no constitutional violation if a plaintiff has not been deprived of a protected interest without due process of law. . Some bodily injuries also implicate a protected property interest, as is recognized by the existence of a common law tort action to recover damages for negligently caused personal injuries. However, because Parratt expressly applies to negligent property deprivations, our analysis will focus on Daniels’ claim that he was deprived of liberty without procedural" }, { "docid": "10095374", "title": "", "text": "holding that Wilson failed to state an equal protection claim was also correct. II After dismissing Wilson’s substantive claims, the district court construed his complaint to allege violation of his right to procedural due process under the Fourteenth Amendment. The court then stated that complaints of procedural due process are governed by the rule of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and proceeded to dismiss the complaint against all defendants on this basis. The district court failed to recognize that Parratt applies only to random and unauthorized deprivations. In Parratt, the plaintiff ordered a hobby kit to be delivered to him at the state prison where he was an inmate. The plaintiff never received the kit. He alleged that it was lost through the negligence of prison officials and filed suit in federal court under 42 U.S.C. § 1983 to recover damages. A state remedy was also available to the plaintiff, for Nebraska had a tort claims procedure which provided a remedy to persons, such as the plaintiff, who suffered tortious losses at the hands of the State. Id. at 530, 101 S.Ct. at 1910. Considering whether the plaintiff could make a federal case from the negligent loss of a hobby kit valued at $23.50, the Supreme Court held that (1) a deprivation of property can violate the due process clause of the Fourteenth Amendment even if caused by mere negligence, id. at 536-537, 101 S.Ct. at 1913-14, but (2) the requirements of due process can be satisfied, at least where the deprivation is the result of a random and unauthorized act by a state employee, by post-deprivation remedies such as the right to bring a damage suit in state court, id. at 541, 543-544, 101 S.Ct. at 1916-17. The second holding was reaffirmed in another case involving a prisoner’s personal property, Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), but the first holding was overruled in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986) (“[T]he Due Process Clause is simply not" }, { "docid": "5487718", "title": "", "text": "In responding to the argument that Nebraska’s tort claims procedure did not adequately protect the plaintiff’s property interest because it did not provide him with all the relief available in actions brought under section 1983, the Court held in Par-ratt that the state remedies were sufficient to satisfy the requirements of due process because the “remedies provided could have fully compensated the [plaintiff] for the property loss he suffered.” 451 U.S. at 544, 101 S.Ct. at 1917 (emphasis added). Thus, Parratt does not require that a plaintiff actually receive a remedy for the deprivation of his interest. Instead, Parratt holds that procedural due process is satisfied if, in cases where a predeprivation hearing is impractical, the state provides a means by which the plaintiff can be compensated for his loss. In other words, under Parratt the requirements of due process are satisfied by the provision of a hearing before a tribunal with the power to grant a remedy. See Groves v. Cox, 559 F.Supp. 772 (E.D.Va. 1983). Daniels contends, however, that he is denied due process under Parratt because he could be precluded from bringing any claim in any court if his section 1983 action is dismissed and- Williams’s plea of immunity is sustained. While we agree that this result could deprive Daniels of a remedy, it does not follow that it would deprive him of his right to present a claim and be heard. To be sure, Daniels will be unable to litigate the merits of his claim if a state court determines that Williams is entitled to sovereign immunity. But while due process may sometimes require a state to consider the merits of a plaintiff’s charge before deciding whether to terminate his claim, see Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), it does not entitle “every civil litigant to a hearing on the merits in every case.” Id. at 438, 102 S.Ct. at 1158. Rather, due process requires “an opportunity . . . granted at a meaningful time and in a meaningful manner for [a] hearing appropriate to the nature" }, { "docid": "14820548", "title": "", "text": "the remedy for the temporary deprivation of her property was constitutionally inadequate. In Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981), a plaintiff alleging a deprivation of property without due process argued that he should be allowed to sue under § 1983 rather than pursue a state tort remedy because the state did not allow all of the relief that was available under § 1983. The Supreme Court rejected this argument, stating: Although the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under § 1983, that does not mean that the state remedies are not adequate to satisfy the requirement of due process. The remedies provided could have fully compensated the respondent for the property loss he suffered, and we hold that they are sufficient to satisfy the requirements of due process. Parratt, 451 U.S. at 544, 101 S.Ct. at 1917. Although the Parratt case did not specifically address the issue of substantive due process, the Court’s conclusion that the available remedy was adequate to satisfy the requirements of due process is significant. We believe that the same principle would apply here, where the plaintiff has been fully compensated for the property loss she suffered, notwithstanding the fact that greater relief might be obtained under § 1983. IV. Conclusion. For the foregoing reasons, the judgment of the district court is AFFIRMED. . Plaintiff filed the instant suit in January of 1982. . Appellant contends that under Title VII it was unlawful for the defendants to take any action against her arising out of her participation in the 1980 personnel hearing. Section 2000e-3 is not so broad, however. It prohibits discrimination against an employee because the employee participated \"in any manner in an investigation, proceeding, or hearing under this subchapter.\" 42 U.S.C. § 2000e-3. \"This subchapter’’ refers to subchapter VI (Equal Employment Opportunities) of Chapter 21 on Civil Rights. To the extent appellant alleged in 1980 that she was terminated without cause in violation of state regulations, the personnel hearing was" }, { "docid": "4983495", "title": "", "text": "of Civil Procedure, he “may set forth two or more statements of a claim ... alternately or hypothetically,” and “may also state as many separate claims ... as he has regardless of consistency .... ” Fed.R.Civ.P. 8(e). Therefore, in considering this motion, the court will construe plaintiff’s complaint to have included a statement of his claim based on a theory of negligence. Since Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), some actions under 42 U.S.C. § 1983 for property deprivations occurring in Virginia have been dismissed on the grounds that Virginia provides a remedy for the deprivation alleged, and that the state remedy provided satisfies procedural due process requirements. See Carroll v. Stacey, Civil Action No. 81-0249-R (W.D.Va., October 28, 1981); Graham v. Mitchell, 529 F.Supp. 622, (E.D. Va., 1982); Whorley v. Karr, 534 F.Supp. 88 (W.D.Va., 1981). Also cf. Peery v. Davis, 524 F.Supp. 107 (E.D.Va. 1981) (section 1983 claim based on personal injury due to negligence dismissed under Parratt). Defendant submits that Parratt mandates summary judgment in his favor in this case. Parratt held that the Fourteenth Amendment protection against negligent deprivation of property without due process of law can be satisfied by a meaningful postdeprivation hearing made available by a state, if a meaningful predeprivation process is impractical. See Parratt, 451 U.S. at 535-45, 101 S.Ct. at 1913-18. The statute involved there was Neb.Rev.Stat. § 81-8, 209 et seq. (1976), which provides a remedy to those who have suffered tortious losses at the hands of the State of Nebraska. A roughly congruent statute will go into effect in the Commonwealth of Virginia on July 1,1982, but the alleged deprivation in this case cannot be redressed via this statute, because it will apply to claims “only accruing on or after” July 1, 1982. Therefore, the court must consider whether there is a right of action under Virginia law which would redress plaintiff’s deprivation; whether the defendant here, if made the defendant in the state action, would partake of the state’s sovereign immunity; and whether such an action meets procedural due process requirements." }, { "docid": "22251336", "title": "", "text": "that § 643a-13.0 [which provides for emergency demolitions without prior notice or hearing] is unconstitutional . . . the inquiry must focus on the adequacy of the post-deprivation remedies available to plaintiff. The inquiry is not whether demolition should have been ordered and, consequently, the fact that plaintiff claims that an emergency did not exist is not dispositive .... [T]he tort remedy available to plaintiff under state law can fully compensate her for the property loss she allegedly suffered and is sufficient to satisfy due process. This misinterprets Parratt. Under Parratt, before reaching the question of the adequacy of the state remedies, a court must first find “the necessity of quick action” or “the impracticality of providing any predeprivation process.” Id. 451 U.S. at 539, 101 S.Ct. at 1915. Thus, the existence vel non of an emergency herein is a material fact and is vigorously contested by the parties. Consequently, we conclude that summary judgment was improperly granted to the appellees. We also note that appellees do not claim that it would have been impractical to provide a predeprivation hearing. Clearly, in Parratt, where the deprivation occurred as the result of negligence of a state employee, it was not practical to provide a predeprivation hearing since no one knew or could have known of the deprivation until after it had occurred. In contrast, here, city officials knew for three months prior to the demolition that the deprivation would occur. They also were aware that appellant held an interest in the building, as she made numerous pleas to city officials that the building should not be demolished. In such a situation, as Justice Blackmun states in his concurring opinion in Parratt, “[t]he mere availability of a subsequent tort remedy before tribunals of the same authority that, through its employees, deliberately inflicted the harm complained of, might well not provide the due process of which the Fourteenth Amendment speaks.” 451 U.S. at 546, 101 S.Ct. at 1918. In any event, if on remand the district court should find that no emergency existed and it would not have been impractical to provide a" }, { "docid": "23586893", "title": "", "text": "Keniston has alleged that he received none at all. The harder question is whether under the circumstances a postdeprivation, state tort action is sufficient to satisfy the requirements of federal due process. It is, of course, the central premise of Parratt v. Taylor that such a remedy is adequate under certain circumstances. However, defendants’ argument that Parratt controls the determination in this case is unpersuasive. Unlike the intentional deprivation alleged here, the actions of the prison officials in Parratt were merely negligent. They were not following official policy. It was the random and unauthorized nature of the deprivation which rendered a predeprivation hearing impractical in Parratt: Application of the principles recited above to this case leads us to conclude the respondent has not alleged a violation of the Due Process Clause of the Fourteenth Amendment. Although he has been deprived of property under color of state law, the deprivation did not occur as a result of some established state procedure. Indeed, the deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedure. There is no contention that the procedures themselves are' inadequate nor is there any contention that it was practicable for the State to provide a predeprivation hearing. Moreover, the State of Nebraska has provided respondent with the means by which he can receive redress for the deprivation. 451 U.S. at 543, 101 S.Ct. at 1917 (emphasis added). In Weiss v. Lehman, 676 F.2d 1320 (9th Cir.1982), this circuit interpreted the adequate state remedy doctrine of Parratt as having a two-part test. Our task, then, is to decide whether meaningful predeprivation process was impractical and an adequate postdeprivation remedy was available. If so, [plaintiff] did not suffer a deprivation of his property without due process of law. Id. at 1322 (emphasis added). Thus, even if a state tort action is adequate to redress the damage to Keniston’s property, we would have to find that a predeprivation hearing was impractical in order to invoke the adequate state remedy doctrine of Parratt. In this case, defendants offered no reasons why a predeprivation" }, { "docid": "14820547", "title": "", "text": "conduct a full evidentiary hearing before terminating an employee. See Loudermill, 470 U.S. at 546, 105 S.Ct. at 1495 (“To require more than [notice and an opportunity to respond] prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee.”) See also Mathews v. Eldridge, 424 U.S. 319, 348, 96 S.Ct. 893, 909, 47 L.Ed.2d 18 (1976) (“At some point the benefit of an additional safeguard to the individual affected ... and to society in terms of increased assurance that the action is just, may be outweighed by the cost.”) In this case, we conclude that the procedure established by the state provided the plaintiff with both procedural and substantive due process. Appellant recognizes that her property rights were restored but contends that the remedy provided by the Personnel Board was inadequate. She seeks punitive damages and damages for emotional distress, both of which she could not obtain from the Personnel Board. The fact that plaintiff could obtain more relief under § 1983 does not mean that the remedy for the temporary deprivation of her property was constitutionally inadequate. In Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981), a plaintiff alleging a deprivation of property without due process argued that he should be allowed to sue under § 1983 rather than pursue a state tort remedy because the state did not allow all of the relief that was available under § 1983. The Supreme Court rejected this argument, stating: Although the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under § 1983, that does not mean that the state remedies are not adequate to satisfy the requirement of due process. The remedies provided could have fully compensated the respondent for the property loss he suffered, and we hold that they are sufficient to satisfy the requirements of due process. Parratt, 451 U.S. at 544, 101 S.Ct. at 1917. Although the Parratt case did not specifically address the issue of substantive due process," }, { "docid": "5487710", "title": "", "text": "at 543-544,101 S.Ct. at 1916-1917. Like the plaintiff in Parratt, Daniels alleges that he was injured by the negligence of a state employee. Unlike in Parratt, Daniels’s claim is for bodily injury rather than for the loss of personal property. “Liberty” within the meaning of the fourteenth amendment includes the right to be free from “unjustified intrusions on personal security.” Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977). Bodily injury resulting from a state official’s negligence therefore deprives a person of a liberty interest protected by the fourteenth amendment. This case thus presents the question whether the Parratt analysis applies to nonproperty deprivations, such as a negligent deprivation of a liberty interest. Parratt concerned a property interest; its scope, however, “cannot easily be limited to negligent deprivations of property.” Palmer v. Hudson, 697 F.2d 1220, 1222 (4th Cir.1983), cert. granted, — U.S. —, 103 S.Ct. 3535, 77 L.Ed.2d 1386 (1983). Because Parratt’s underlying principle is that a postdeprivation hearing will satisfy procedural due process when there is no practical way to provide a predeprivation hearing, logic dictates that Parratt should also apply to a nonproperty deprivation for which a predeprivation hearing was impractical. Justice Rehnquist made no distinction in Parratt between property and nonproperty deprivations. Rather, the relevant distinction is between isolated acts of misconduct which are not amenable to prior control and deprivations resulting from established state procedure; this factor determines whether a meaningful postdeprivation remedy will satisfy the requirements of procedural due process. In addition, application of Parratt to non-property deprivations such as Daniels’s alleged bodily injury is consistent with the Court’s stated goal in Parratt to provide courts with assistance in determining “the correct manner in which to analyze claims ... which allege facts that are commonly thought to state a claim for a common-law tort normally dealt with by state courts, but instead are couched in terms of constitutional deprivation and relief is sought under § 1983.” Id. 451 U.S. at 533, 101 S.Ct. at 1912. The conclusion that Parratt was intended to apply to all types of deprivations" }, { "docid": "12897304", "title": "", "text": "guarantee of procedural due process, Parratt, 101 S.Ct. at 1917; Duncan v. Poythress, 657 F.2d 691, 704-05 (5th Cir.1981), cert. denied,-U.S. -, 103 S.Ct. 252, 74 L.Ed.2d 197 (1982). But a critical prerequisite to a determination under Parratt that existing post-deprivation remedies are sufficient to satisfy the requirements of due process is an ascertainment of congruity between the substantive interests asserted by the plaintiff and the interests protected by the existing remedial scheme. Remedies not responsive to the range of intangible interests claimed to be injured are not meaningful in an analysis of the adequacy of process provided. The Supreme Court, 1981 Term, 96 Harv.L.Rev. 61, 103 n. 45 (Nov. 1982). Parratt recognized this: a state prisoner charged the prison mail room had negligently lost his hobby kit; the state provided an action for tortious losses at the hands of the state. The Court declared that because “[t]he remedies provided could have fully compensated the respondent for the property loss he suffered ... they [were] sufficient to satisfy the requirements of due process.” Parratt, 101 S.Ct. at 1917. The importance of congruity between the interests at issue and the remedies available was re-emphasized in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). Logan concerned a discharged, handicapped employee’s loss of his right to pursue a claim of discriminatory termination. The Court held that the independent tort action available under state law was a constitutionally unsatisfactory substitute for his cause of action under the state Fair Employment Practices Act: because reinstatement was not a remedy available through the tort action, “even if successful [would] not vindicate entirely Logan’s right to be free from discriminatory treatment,” Logan, 102 S.Ct. at 1158. Par-ratt and Logan make clear that a proper application of their principles demands analysis of the adequacy of the available process to remedy the essential aspects of the interests at stake. Accord, Engblom v. Carey, 677 F.2d 957, 965 (2d Cir.1982). It is at this juncture that our analysis diverges from that of the district court. We view the Rutherfords’ factual allegations from a" }, { "docid": "15079916", "title": "", "text": "because a property deprivation does not occur until the state has been given the opportunity to remedy the state employees’ error and has failed to do so. Appellants’ contention rests on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part not relevant by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986). Parrott involved a prisoner’s loss of property due to the random, negligent act of a state employee. The Supreme Court held that the state tort remedies available to the prisoner satisfied the prisoner’s due process rights because due process does not require a pre-deprivation hearing where such a hearing would be impracticable — i.e., where the deprivation re- suits from an employee’s negligent act. In Hudson v. Palmer, 468 U.S. 517, 531, 104 S.Ct. 3194, 3202, 82 L.Ed.2d 393 (1984), the Court extended Parratt’s reasoning and held that “an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the 14th Amendment if a meaningful post-deprivation remedy for the loss is available.” The state’s action is not complete unless and until it refuses to provide a post-deprivation remedy. Id. The Tinneys contend that application of the Parratt rule in cases like this one amounts to a requirement that a Section 1983 plaintiff seeking to redress a violation of procedural due process must exhaust his or her state remedies before suing in federal court. The Supreme Court rejected such a requirement in Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). However, the Tinneys’ contention lacks merit. In a recent public employment case brought under Section 1983, this Court, sitting en banc, explained the difference between Patsy’s import and Parratt's: In Patsy the Supreme Court held that section 1983 plaintiffs were not required to avail themselves of available state remedies before suing in federal court; the Court’s holding presumed the presence of a valid constitutional claim. In this case, McKinney cannot state a valid constitutional claim" }, { "docid": "2669229", "title": "", "text": "of the Fourteenth Amendment intended the amendment to play such a role in our society. Id. 101 S.Ct. at 1917. In my view, the Supreme Court in Par-ratt decided two discrete questions regarding the issue of whether plaintiff had been deprived of property without due process of law. The first question was whether due process required a predeprivation hearing. The court held that no such hearing was required, not because of the existence of postdeprivation remedies, but because a predeprivation hearing simply could not be meaningful — indeed, in the case of negligent deprivations, as the Court observed, a predeprivation hearing would be a practical impossibility. Hence, the state’s failure to provide Parratt with a hearing before the state officials lost his property did not violate due process. Now it is true that the court said that in prior cases excusing a lack of a predeprivation hearing, the decisions rested in part on the availability of a postdeprivation proceeding, but in those cases a predeprivation hearing would have been meaningful, but the exigencies of the situation justified postponing the hearing until after the initial deprivation. The decisions in those cases — that no violation of due process had occurred — indeed rested on the availability of postdeprivation remedies, because once it was determined a predepri-vation hearing was not feasible, that could not end the due process analysis. Nor did that conclusion end the due process analysis in Parratt. Rather, the second question which Parratt decided was whether the postdeprivation remedy accorded due process of law. The Court examined the remedy provided by state law, and concluded it would provide Parratt a meaningful opportunity to be heard regarding his claim, and that satisfied due process. A contrary conclusion in Parratt, of course, would have made § 1983 a font of tort law since prede-privation hearings are conceptually absurd with respect to injuries caused by the negligence of state actors. Any garden variety negligence cause of action against such ac tors would necessarily be cognizable under § 1983. The instant case is not governed by Par-ratt. In this case, before the initial" }, { "docid": "5487719", "title": "", "text": "process under Parratt because he could be precluded from bringing any claim in any court if his section 1983 action is dismissed and- Williams’s plea of immunity is sustained. While we agree that this result could deprive Daniels of a remedy, it does not follow that it would deprive him of his right to present a claim and be heard. To be sure, Daniels will be unable to litigate the merits of his claim if a state court determines that Williams is entitled to sovereign immunity. But while due process may sometimes require a state to consider the merits of a plaintiff’s charge before deciding whether to terminate his claim, see Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), it does not entitle “every civil litigant to a hearing on the merits in every case.” Id. at 438, 102 S.Ct. at 1158. Rather, due process requires “an opportunity . . . granted at a meaningful time and in a meaningful manner for [a] hearing appropriate to the nature of the case .... ” Id., quoting Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) (citations omitted). And we conclude that Virginia’s common law tort action provides Daniels with a meaningful opportunity for a hearing appropriate to the nature of his claim. Nor does sovereign immunity itself violate due process. “For when a state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunity, unless, of course, the state rule is in conflict with federal law.” Ferri v. Ackerman, 444 U.S. 193, 198, 100 S.Ct. 402, 406, 62 L.Ed.2d 355 (1979); see Martinez v. California, 444 U.S. 277, 280-283, 100 S.Ct. 553, 556-558, 62 L.Ed.2d 481 (1980). Daniels further argues that the doctrine of sovereign immunity deprives him of a postdeprivation remedy at a meaningful time and in a meaningful manner. See 451 U.S. at 540, 101 S.Ct. at 1915. He asserts that, unlike litigation on the question of good faith in a section 1983 action," }, { "docid": "23586894", "title": "", "text": "State to follow established state procedure. There is no contention that the procedures themselves are' inadequate nor is there any contention that it was practicable for the State to provide a predeprivation hearing. Moreover, the State of Nebraska has provided respondent with the means by which he can receive redress for the deprivation. 451 U.S. at 543, 101 S.Ct. at 1917 (emphasis added). In Weiss v. Lehman, 676 F.2d 1320 (9th Cir.1982), this circuit interpreted the adequate state remedy doctrine of Parratt as having a two-part test. Our task, then, is to decide whether meaningful predeprivation process was impractical and an adequate postdeprivation remedy was available. If so, [plaintiff] did not suffer a deprivation of his property without due process of law. Id. at 1322 (emphasis added). Thus, even if a state tort action is adequate to redress the damage to Keniston’s property, we would have to find that a predeprivation hearing was impractical in order to invoke the adequate state remedy doctrine of Parratt. In this case, defendants offered no reasons why a predeprivation hearing could not, or should not, be provided before County officials order a termination. Because the possibility of a predeprivation hearing is so unlikely in the case of a negligent deprivation, it is reasonable to require a plaintiff to establish its practicality before complaining of its denial. We fail to see, however, how such reasoning could apply to an intentional deprivation that is specifically alleged to be official policy. We therefore hold that, in order to obtain dismissal of a claim of intentional deprivation of property without due process on the ground that a postdeprivation hearing provides all the process that is due, the burden is on a defendant to establish that a pre- deprivation hearing is impractical or unduly burdensome. Our holding disposes of the contention that amendment would be futile in this case. No other ground is presented to support the denial of leave to amend. We therefore direct the district court to allow plaintiff an opportunity to amend his complaint. The district court is affirmed in part, reversed in part, and the" }, { "docid": "5487717", "title": "", "text": "employee whose negligence is involved. James v. Jane, 221 Va. 43, 53, 282 S.E.2d 864, 869 (1980). Daniels alleges that Williams negligently left a pillow on the stairway. Applying the ministerial-discretionary factor, a state court could overrule Williams’s plea of immunity because the alleged negligence underlying Daniels’s claim was misfeasance of a ministerial duty. See Phelps v. Anderson, 700 F.2d 147, 149 (4th Cir.1983); Semler v. Psychiatric Institute, 538 F.2d 121, 127 (4th Cir.1976); First Virginia Bank-Colonial v. Baker, 225 Va. 72, 301 S.E.2d 8 (1983); Lawhorne v. Harlan, 214 Va. 405, 200 S.E.2d 569 (1973). On the other hand, the state’s interest and involvement in prison administration is great, and a state court may thus determine that Williams is entitled to immunity. See Dalson v. Hutto, No. LD 1131, Vol. 8, No. 1 VADA Quarterly 15 (Cir.Ct. Richmond, Nov. 29, 1982). In short, we cannot confidently predict whether sovereign immunity would apply in this case. Consequently, we must determine whether the possibility of a sovereign immunity defense deprives Daniels of an adequate post-deprivation remedy. In responding to the argument that Nebraska’s tort claims procedure did not adequately protect the plaintiff’s property interest because it did not provide him with all the relief available in actions brought under section 1983, the Court held in Par-ratt that the state remedies were sufficient to satisfy the requirements of due process because the “remedies provided could have fully compensated the [plaintiff] for the property loss he suffered.” 451 U.S. at 544, 101 S.Ct. at 1917 (emphasis added). Thus, Parratt does not require that a plaintiff actually receive a remedy for the deprivation of his interest. Instead, Parratt holds that procedural due process is satisfied if, in cases where a predeprivation hearing is impractical, the state provides a means by which the plaintiff can be compensated for his loss. In other words, under Parratt the requirements of due process are satisfied by the provision of a hearing before a tribunal with the power to grant a remedy. See Groves v. Cox, 559 F.Supp. 772 (E.D.Va. 1983). Daniels contends, however, that he is denied due" }, { "docid": "14181672", "title": "", "text": "him of his $23.50 hobby kit. The Court found that Mr. Taylor’s claim had unquestionably satisfied three of the four prerequisites of a valid § 1983 due process claim: the state officials had acted under color of state law; the hobby kit was property; and the loss of the kit was a deprivation. Parratt at 536, 101 S.Ct. at 1913. The Court also found, however, that the tort remedies provided by the State of Nebraska afforded the Plaintiff a means of redress and that that was all that was required by the due process clause of the Constitution. The Court distinguished those cases where the constitutional deprivation was an established state procedure for which a predeprivation notice and hearing was both possible and required by the constitution. It noted that post-deprivation remedies made available by the State could satisfy due process when public safety or practicality made a predeprivation hearing unworkable. Parratt at 539, 101 S.Ct. at 1914. The Court concluded that the “fundamental requirement of due process is the opportunity to be heard and it is an opportunity which must be granted at a meaningful time and in a meaningful manner.” Parratt at 540, 101 S.Ct. at 1915. The Court held that Mr. Taylor had failed to allege a cause of action under § 1983 because the State of Nebraska offered a remedy to persons who believed that they had suffered a tortious loss at the hands of the State. The Court noted that the State process would satisfy due process even though it might not offer the plaintiff all the relief that would have been available under § 1983. In explanation, the Court stated that the Fourteenth Amendment and § 1983 were not intended to be a font of tort law to be superimposed upon whatever systems the States already administered. Parratt at 545, 101 S.Ct. at 1917. This rationale and holding have recently been extended to a personal injury negligently caused by persons acting under the color of state law. Daniels v. Williams, 720 F.2d 792 (4th Cir.1983) (plaintiff alleged that he was injured when he slipped" }, { "docid": "18575343", "title": "", "text": "the “specific protections defined in the Bill of Rights,” Daniels v. Williams, — U.S.-,-, 106 S.Ct. 662, 677, 88 L.Ed.-2d 662 (1986) (Stevens, J., concurring), or “conduct that shocks the conscience.” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). No violation of specific Bill of Rights protections is at issue. Since I do not perceive that the complaint raises any questions as to whether defendants conduct was “shocking” nor does the trial record reflect any such theory, Thomas’s claim must be one of procedural due process. Cf. Davidson v. Cannon, — U.S.-,-, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986). Thomas’s claim was submitted to the jury under a “gross negligence” or “egregious failure to protect” standard and thus survives Daniels and Davidson, which hold that the due process clause is not implicated by the mere negligence of an official which causes injury to life, liberty, or property. Daniels, — U.S. at -, 106 S.Ct. at 663; Davidson, — U.S. at---, 106 S.Ct. at 669-72. Our Circuit has not directly addressed the issue of whether Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), applies to procedural due process claims based on deprivations of liberty as well as to those based on deprivations of property. In Parratt, the Supreme Court held that “takings of property without any predeprivation process” are permissible under the due process clause of the Fourteenth Amendment when the loss is the “result of a random and unauthorized act by a state employee” rather than “a result of some established state procedure.” 451 U.S. at 541, 101 S.Ct. at 1916. The Court noted that “[i]t is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place.” Id. The Court found that the availability of a meaningful post-deprivation hearing satisfied the requirements of procedural due process because there were state remedies that could have fully compensated the plaintiff, even though those remedies may not have been as extensive as the remedies available under section 1983. Id. at 537-44, 101 S.Ct." }, { "docid": "5487708", "title": "", "text": "TURK, Chief Judge: Roy E. Daniels (Daniels), an inmate at the Richmond City Jail, brought this section 1983 action against Deputy-Sheriff Andrew Williams (Williams) alleging that he was injured when he slipped and fell on a pillow negligently left on the stairs by Williams. The district court granted Williams’s motion for summary judgment, reasoning that under Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), Daniels’s allegations failed to state a procedural due process claim because Virginia provided a meaningful postdeprivation remedy in the form of a common law negligence action. Daniels appeals on the grounds that Par-ratt’s analysis concerning the adequacy of a postdeprivation remedy should not be applied to the deprivation of a nonproperty interest, and, even if it does apply, that the Virginia doctrine of sovereign immunity denies him an adequate postdeprivation remedy. We affirm the district court’s dismissal of Daniels’s action. A. The plaintiff in Parratt alleged that he was deprived of property without due process of law when prison officials negligently lost his hobby kit. The Court agreed that the plaintiff had been deprived of property within the meaning of the fourteenth amendment. Id. at 536-537, 101 S.Ct. at 1913-1914. The Court held, however, that the plaintiff had not stated a claim for a violation of the due process clause of the fourteenth amendment. Rejecting the proposition that due process always requires a hearing before the initial property deprivation, Justice Rehnquist stated in a plurality opinion that a meaningful postdeprivation hearing satisfies the requirements of procedural due process in situations where the property deprivation does not result from established state procedure and the state cannot practically provide a meaningful predeprivation hearing. Id. at 540-541, 101 S.Ct. at 1915-1916. Applying this principle to the plaintiff’s allegation that he was tortiously deprived of his property as a result of a state employee’s random and unauthorized act, the Court concluded that the plaintiff was not deprived of property without due process of law because the state’s statutory tort procedure provided him with a postdeprivation remedy that satisfied the requirements of procedural due process. Id." } ]

[ { "docid": "22660610", "title": "", "text": "supplemental briefing. Third Circuit L.A.R. 109.2(a). The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues. Marvin, 211 F.3d at 780 (citing United States v. Tabb, 125 F.3d 583 (7th Cir.1997); and United States v. Wagner, 103 F.3d 551 (7th Cir.1996)). This Court, following the Seventh Circuit’s analysis in Tabb, established the first inquiry as dispositive: “except in those cases in which frivolousness is patent, we will reject briefs ... in which counsel argue the purportedly frivolous issues aggressively without explaining the faults in the arguments, as well as those where we are not satisfied that counsel adequately attempted to uncover the best arguments for his or her client.” Marvin, 211 F.3d at 781. In this case, we reject the Anders brief for the latter reason. A. Adequacy of Counsel’s Anders Brief The duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) to explain why the issues are frivolous. Marvin, 211 F.3d at 780 (citing Tabb, 125 F.3d at 585, 586). Counsel need not raise and reject every possible claim. However, at a minimum, he or she must meet the “conscientious examination” standard set forth in Anders. Id. In his Anders brief before this Court, counsel’s analysis of the merits of the potential appealable issues constituted two pages. With regard to sentencing, counsel’s examination cites no case law, and is limited to the following: The sentence imposed upon the appellant also appears to have been without legal error. Based upon the calculation that the applicable base offense level was 18, with a criminal history category I, the imposition of a sentence of imprisonment of 33 months fell within the applicable guideline range. Thus, there is simply no basis for concluding that the District Court’s sentencing decision constituted an abuse of discretion. Appellant’s Br. Pursuant to Anders v. California at 4. Counsel fails to mention that the Presentence Investigation" } ]

[ { "docid": "16002190", "title": "", "text": "SLOVITER, Circuit Judge. Marshaun Thomas appeals from his conviction and sentence following a guilty plea. Finding no error, we will affirm. I. On September 26, 2002, Thomas pled guilty to participating in a racketeering enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c). The predicate racketeering acts committed by Thomas supporting his RICO conviction were the felony murder of Alex Irizarry on August 12, 1998 and a bank robbery on October 30, 2000. After accepting his guilty plea, the District Court sentenced Thomas to 360 months of incarceration, but acceded to Thomas’ request that he be credited for the thirty months that he had already served in State custody. Following entry by the District Court of its final order, Thomas’ counsel filed an appellate brief in this court pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which holds that if appointed counsel, after a conscientious examination of the case, finds an appeal to be wholly frivolous, s/he must advise the court and request permission to withdraw. Defense counsel also has the responsibility of filing a brief referring to anything in the record that may arguably support an appeal. 386 U.S. at 744, 87 S.Ct. 1396. We have stated that “[t]he duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) to explain why the issues are frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). In his Anders brief, Thomas’ counsel averred that upon a complete review of the record he concluded that there are no non-frivolous issues for appellate review. Further, in order to discharge the duty to cite to anything in the record that may arguably support an appeal, counsel’s Anders brief noted that Thomas applied for a downward departure but that the District Court, although recognizing that it had the authority to depart from the first-degree murder guideline where the defendant did not cause the death knowingly or intentionally, found that Thomas’ conduct" }, { "docid": "14850544", "title": "", "text": "elect to pursue one sentencing argument while also choosing to forego another, and when the defendant selects as a matter of strategy, he also'waives those arguments he decided not to present.’ ” United States v. Kindle, 453 F.3d 438, 442 (7th Cir.2006) (quoting Jaimes-Jaimes, 406 F.3d at 848). Our duty when considering waiver is to divine from the record an intent to forego an argument, and counsel’s statement, in light of the other circumstances in this case, provides more than a sufficient basis for doing so. We find that Decker waived his challenge to the district court’s drug quantity calculation. III. Saul Garcia — Counsel’s Motion to Withdraw Garcia was another Indianapolis drug dealer who purchased methamphetamine from Baltista on multiple occasions. Following Garcia’s arrest on January 19, 2007, police found a drug ledger showing money owed to Garcia for fronted drugs, as well as cash and two rifles. Coconspirators also testified regarding Garcia’s drug transactions. On September 18, a jury found Garcia guilty of conspiracy to distribute more than 500 grams of methamphetamine; Garcia also had a prior drug-related felony conviction. On December 3, the district court sentenced him to 380 months in prison after finding that he was responsible for fifteen kilograms or more of methamphetamine and enhancing his sentence for possessing a firearm and for obstructing justice. Garcia filed his notice of appeal on December 10. Garcia’s counsel, unable to discern a non-frivolous basis for appeal, moved to withdraw. Counsel supports his motion with a thorough brief filed according to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Garcia did not respond to his counsel’s submission, and we therefore confine our review of the record to the potential issues raised in his counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973 (7th Cir.2002). After reviewing the record and counsel’s well-written Anders brief, we agree that there are no non-frivolous issues for appeal. Counsel first raises the district court’s evidentiary rulings regarding two witnesses, but Garcia forfeited his challenges by failing to object at trial, see United States v." }, { "docid": "12684690", "title": "", "text": "are endangered if counsel fails to pursue an appeal without advising a client of the reasons for doing so. “[WJhile these exceptions [to the enforceability of a waiver] may be few in kind and sporadic in frequency in comparison with the bulk of cases where waivers are presumptively enforceable, they are the exceptions that must drive our rule requiring an Anders brief.” Id. at 320. We further noted in Gomez-Perez that the filing of an Anders brief would make it appropriate for this Court to consider whether the appeal would be frivolous and to dismiss the appeal if we so found: In the event that defendant’s counsel files an adequate Anders brief, and the defendant likewise fails to point to any non-frivolous issues pertaining to the plea agreement and appeal waiver, a Motions Panel will then review the record and determine whether it is appropriate to dismiss the appeal. Id. at 320 (emphasis added). Thus, Gomez-Perez strongly suggests, and we now hold, that where counsel does not file a requested notice of appeal and fails to file an adequate Anders brief, courts may not dismiss the hypothetical appeal as frivolous on collateral review. See United States v. Garrett, 402 F.3d 1262, 1267 (10th Cir.2005) (holding that the Flores-Ortega presumption of prejudice applies even where the defendant waived appeal in a plea agreement “regardless of whether, from the limited perspective of collateral review, it appears that the appeal will not have any merit”). Because the present case involves the loss of a chance at an entire appellate proceeding, it is similar to Garcia v. United States, 278 F.3d 134 (2d Cir.2002), in which this Court held that a defendant who was incorrectly advised by counsel that no appeal was possible must be granted an opportunity to appeal. Id. at 137. In that ease, the government argued also that there was no merit to any of the defendant’s substantive challenges to his sentence. We held that “under the plain teaching of Flores-Ortega ... [the defendant on habeas review] is not required to establish the merits of any claim that he would have" }, { "docid": "8625661", "title": "", "text": "PER CURIAM. Hubert Davenport decided to show off his gun to his friends at a bar one night. A bar employee observed him and called the police, and Mr. Davenport, a felon on probation, was arrested and charged with violating 18 U.S.C. § 922(g)(1). He pleaded guilty and was sentenced as an armed career criminal to 192 months’ imprisonment. See id. § 924(e). Mr. Davenport then filed a notice of appeal, but his appointed lawyer contends that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Davenport has not responded to counsel’s submission. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel begins by addressing whether Mr. Davenport could challenge his conviction. Although she neglects to say whether she complied with this court’s requirement that she first ask him whether he wants his guilty plea set aside, see United States v. Konczak, 683 F.3d 348, 349 (7th Cir.2012); United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002), this omission does not mean that we must deny the Anders motion. If the transcript of the plea colloquy shows that a challenge to the voluntariness of the plea would be frivolous, the motion may be granted. See Konczak, 683 F.3d at 349-50; Schuh, 289 F.3d at 974. A challenge to the voluntariness of a guilty plea necessarily is frivolous if the district court substantially complied with Federal Rule of Criminal Procedure 11 when accepting the plea. Konczak, 683 F.3d at 349-50; Schuh, 289 F.3d at 974. And our review of Mr. Davenport’s plea colloquy would be even more deferential— confined to a search for plain error — because he did not move in the district court to withdraw his guilty plea. See United States v. Vonn, 535 U.S. 55, 62-63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Kilcrease, 665 F.3d 924, 927 (7th Cir.2012). An error is not plain unless it is obvious," }, { "docid": "14850545", "title": "", "text": "also had a prior drug-related felony conviction. On December 3, the district court sentenced him to 380 months in prison after finding that he was responsible for fifteen kilograms or more of methamphetamine and enhancing his sentence for possessing a firearm and for obstructing justice. Garcia filed his notice of appeal on December 10. Garcia’s counsel, unable to discern a non-frivolous basis for appeal, moved to withdraw. Counsel supports his motion with a thorough brief filed according to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Garcia did not respond to his counsel’s submission, and we therefore confine our review of the record to the potential issues raised in his counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973 (7th Cir.2002). After reviewing the record and counsel’s well-written Anders brief, we agree that there are no non-frivolous issues for appeal. Counsel first raises the district court’s evidentiary rulings regarding two witnesses, but Garcia forfeited his challenges by failing to object at trial, see United States v. McMath, 559 F.3d 657, 667 (7th Cir.2009), and we find no plain error in the court’s rulings. Counsel also addresses the sufficiency of the evidence to convict Garcia, but he correctly highlights more than enough evidence from which a reasonable jury could have found Garcia guilty. See Moses, 513 F.3d at 733. Counsel next calls our attention to the denial of Garcia’s requests for a new attorney. The court below held ex parte hearings to determine whether the requests should be granted, applied the proper criteria, and did not abuse its discretion in finding that new counsel was inappropriate. See United States v. Ryals, 512 F.3d 416, 419-20 (7th Cir.2008) (explaining the applicable standard when considering a motion for new counsel); United States v. Best, 426 F.3d 937, 947 (7th Cir.2005) (same). Finally, counsel notes multiple issues regarding Garcia’s sentence. After reviewing each of them, we agree that the district court properly calculated the drug quantity for which Garcia was held responsible and did not err by imposing enhancements for possession of a firearm and" }, { "docid": "19929167", "title": "", "text": "character of the Defendant and the nature of the crime, which are important § 3553(a) factors. Defendant was sentenced to 78 months. On February 9, 2006, Pulyer’s counsel filed an Anders brief arguing only that the right to appeal was waived by the agreement to plead guilty. On March 15, 2006, Pulyer submitted a pro se brief in which he argued that: (1) the sentencing guideline enhancements were unconstitutional because they were not proven beyond a reasonable doubt; and (2) his counsel was ineffective. II. Pursuant to Third Circuit Local Appellate Rule 109.2(a), if trial counsel reviews the District Court record and “is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting [.Anders ] brief.” Third Circuit L.A.R. 109.2(a). In considering counsel’s submission, we must examine: (1) “whether counsel adequately fulfilled the rule’s requirements;” and (2) “whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). To satisfy the Anders requirements counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000). The entire thrust of the Anders brief is the erroneous assertion that as part of the plea agreement Pulyer has waived all of his appellate rights. The brief did not address any potential appealable issues on the merits, nor did it explain why such issues are frivolous. Indeed, even the government pointed out that Pulyer did not waive his appellate rights, (Gov. Br. at pp. 11-12), and at sentencing the District Judge specifically advised Defendant of his right to appeal. (App. at p. 65). However, even when an Anders brief is inadequate, we may nevertheless affirm a conviction where the frivolousness of appeal is patent. See Youla, 241 F.3d at 300. We see four possible issues, including the two raised by Pulyer in his pro se brief, and we will consider each in turn. First, the District Court might have" }, { "docid": "19929168", "title": "", "text": "must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000). The entire thrust of the Anders brief is the erroneous assertion that as part of the plea agreement Pulyer has waived all of his appellate rights. The brief did not address any potential appealable issues on the merits, nor did it explain why such issues are frivolous. Indeed, even the government pointed out that Pulyer did not waive his appellate rights, (Gov. Br. at pp. 11-12), and at sentencing the District Judge specifically advised Defendant of his right to appeal. (App. at p. 65). However, even when an Anders brief is inadequate, we may nevertheless affirm a conviction where the frivolousness of appeal is patent. See Youla, 241 F.3d at 300. We see four possible issues, including the two raised by Pulyer in his pro se brief, and we will consider each in turn. First, the District Court might have applied the wrong burden of proof when ruling on the Sentencing Guidelines enhancements. As he did in his pro se submission, Pulyer could argue that all factors that lead to sentence enhancements must be proven beyond a reasonable doubt. However, this argument fails as a matter of law because sentencing facts need only be determined by a preponderance of the evidence. See United States v. Cooper, 437 F.3d 324, 330 (3d Cir.2006). A review of the record supports the District Court’s determination that all Guideline enhancements in computing the offense level were well supported by a preponderance of the evidence. Second, Pulyer has argued that his counsel was ineffective. However, this argument must be rejected now, because ineffective assistance of counsel claims are not considered by this Court on direct appeal. United States v. Thornton, 327 F.3d 268, 271-72 (3d Cir.2003). Such claims would be deferred to collateral attack. Id. Third, Pulyer might argue that the District Court erred in failing to grant one or more of the downward departures argued by him in his" }, { "docid": "22660613", "title": "", "text": "particularly those that Youla argues in his pro se brief. In sum, as in Marvin, “[cjounsel simply has not provided sufficient indicia that he thoroughly searched the record and the law in service of his client so that we might confidently consider only those objections raised.” Id. Therefore, we reject the Anders brief as inadequate. B. Arguable Merits to the Appeal The Seventh Circuit in Wagner clarified the standard for determining whether to accept counsel’s statement, via an Anders motion and brief, that there are no nonfrivolous grounds for appeal. Specifically, the Court considered how deeply the appellate courts must explore the record to determine whether to grant the motion. See Wagner, 103 F.3d at 552. The Wagner court rejected a complete scouring of the record by the courts and identification of the issues for the defendant — effectively serving as his lawyer— for while in some cases it may help the defendant, in others it may hurt him. See id. Where the Anders brief initially appears adequate on its face, the proper course “is for the appellate court to be guided in reviewing the record by the An-ders brief itself.” Id. at 553. However, that is not the status of the brief here. Although the Anders brief does -not assist us, we note that Youla’s pro se brief does provide this Court with some guidance concerning the issues he wishes to raise on appeal. Although not the brief of counsel, we find that it “explains the nature of the case and ... discusses the issues that the type of case might be expected to involve.” In such a circumstance, we extrapolate from Wagner’s recommendation that we confine our scrutiny to those portions of the record identified by an adequate Anders brief, see id., so that our examination of the record is informed by those issues raised in Appellant’s pro se brief. An appeal on a matter of law is frivolous where “[none] of the legal points [are] arguable on their merits.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (citing Anders, 386 U.S." }, { "docid": "21389884", "title": "", "text": "63-78 months. He therefore asked the district court to reduce his sentence to 63 months. The Government filed a response, arguing Mr. Kurtz was not statutorily eligible for a § 3582(c)(2) reduction. On August 19, 2015, the district court denied Mr. Kurtz’s motion. He filed a timely notice of appeal on September 1, 2015. See Fed. R-App. 4(b)(l)(A)(i). C. Anders Brief We appointed the Féderal Public Defender’s Office for the District of New Mexico to represent Mr. Kurtz on appeal. On November 25, 2015, Mr. Kurtz’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which authorizes counsel to request permission to withdraw where counsel conscientiously examines a case and determines that any appeal would be wholly frivolous. Under Anders, counsel must submit a brief to the client and the appellate court indicating any potential ap-pealable issues based on the record. The client may then choose to submit arguments- to the court. The Court must then conduct a full examination of the record to determine whether defendant’s claims are wholly frivolous. If the court concludes after such an examination that the appeal is frivolous, it may grant counsel’s motion to withdraw and may dismiss the appeal. United States v. Calderon, 428 F.3d 928, 930 (10th Cir.2005) (citations omitted). Counsel indicated he could detect no “non-frivolous arguments that the district court erred in denying Mr. Kurtz’s Motion.” Aplt. Br. at 1. He therefore sought permission to withdraw. Counsel mailed a copy of his Anders brief to Mr. Kurtz, who filed a two-page response on January 19, 2016. II. DISCUSSION A. Standard of Review “The scope of a district court’s authority in a sentencing modification proceeding under § 3582(c)(2) is a question of law that we review de novo. We review a denial of a § 3582(c)(2) motion for abuse of discretion.” United States v. Lucero, 713 F.3d 1024, 1026 (10th Cir.2013) (quotation, citation, and brackets omitted). When counsel submits an Anders brief,’ our review of the record is de novo. See United States v. Leon, 476 F.3d 829, 832 (10th Cir.2007)" }, { "docid": "5214970", "title": "", "text": "Wampler filed a notice of appeal, but his appointed lawyer has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wampler has responded to counsel’s motion, see Cir. R. 51(b), and we limit our review to counsel’s facially adequate brief and Wampler’s response, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Wampler’s appointed counsel fails to note in his Anders submission that Wam-pler waived his right to appeal. Unless there is reason to question the validity of Wampler’s appeal waiver, that waiver is dispositive here. An appeal waiver stands or falls with the underlying guilty plea, United States v. Kilcrease, 665 F.3d 924, 929 (7th Cir.2012); United States v. Henry, 702 F.3d 377, 380 (7th Cir.2012); United States v. Sakellarion, 649 F.3d 634, 638-39 (7th Cir.2011), but counsel does not say if he asked Wampler whether he wants to challenge his guilty plea, see United States v. Konczak, 683 F.3d 348, 349 (7th Cir.2012); United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Although the defendant’s Rule 51(b) response is ambiguous, it appears that he wishes to challenge his guilty plea, though any challenge would be frivolous. During the plea colloquy the district court substantially complied with Federal Rule of Criminal Procedure 11. See Konczak, 683 F.3d at 349; United States v. Blalock, 321 F.3d 686, 688-89 (7th Cir.2003); United States v. Akinsola, 105 F.3d 331, 334 (7th Cir.1997). The judge explained the nature of the charge, the statutory penalties, the role of the sentencing guidelines and the judge’s discretion in applying them, the process for receiving credit for acceptance of responsibility and cooperation with the government, and the trial and appellate rights he was waiving by entering the plea. And the judge ensured that the plea was made voluntarily with neither the government nor counsel forcing him to plead guilty or assuring a specific sentence. Thus, the transcript of the plea colloquy demonstrates that Wam-pler knowingly and voluntarily pleaded guilty, and that means that his waiver is enforceable. Wampler asserts" }, { "docid": "22660609", "title": "", "text": "F.3d 778, 779 (3d Cir.2000). Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme Court promulgated in Anders to assure that indigent clients receive adequate and fair representation. Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. Third Circuit L.A.R. 109.2(a). The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues. Marvin, 211 F.3d at 780 (citing United States v. Tabb, 125 F.3d 583 (7th Cir.1997); and United States v. Wagner, 103 F.3d 551 (7th Cir.1996)). This Court, following the Seventh Circuit’s analysis in Tabb, established the first inquiry as dispositive: “except in those cases in which frivolousness is patent, we will reject briefs ... in which counsel argue the purportedly frivolous issues aggressively without explaining the faults in the arguments, as well as those where we are not satisfied that counsel adequately attempted to uncover the best arguments for his or her client.” Marvin, 211 F.3d at 781. In this case, we reject the Anders brief for the latter reason. A. Adequacy of Counsel’s Anders Brief The duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined" }, { "docid": "23630581", "title": "", "text": "See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Curry did not respond to counsel’s facially adequate brief. See Cir. R. 51(b). We limit our review to the potential issues counsel discusses. United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel first considers whether Curry has any non-frivolous arguments to challenge his conviction. Since Curry does not seek to challenge his guilty plea on appeal, counsel properly declines to address any plea-related issues in his Anders brief. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Counsel does consider, however, whether Curry has any non-frivolous arguments challenging his sentence. He properly concludes that Curry has none. First, Curry’s within-guideline, 210-month sentence did not constitute a violation of law where it did not exceed the statutory maximum sentence of life, 21 U.S.C. § 841(b)(1)(A); United States v. Franz, 886 F.2d 973, 977 (7th Cir.1989), and where nothing in the record indicates that the district court violated Curry’s equal protection, due process, or other constitutional rights, see, e.g., United States v. Moore, 543 F.3d 891, 895-96 (7th Cir.2008) (discussing a “class of one” equal protection claim). See 18 U.S.C. 3742(a)(1) (permitting defendants to appeal a final sen tence that “was imposed in violation of law”)- Next, the district court committed no procedural errors when applying the sentencing guidelines to determine Curry’s sentence: It properly calculated the guidelines range, treated the guidelines as discretionary, considered the factors in § 3553(a), selected a sentence based on appropriate facts, and adequately explained the sentence it imposed. See Call, 552 U.S. at 51, 128 S.Ct. 586. Finally, Curry’s within-guide line sentence is not substantively unreasonable. See United States v. Rivera, 463 F.3d 598, 602 (7th Cir.2006) (“A sentence, such as this, that falls within a properly calculated Guidelines’ range is entitled to a rebuttable presumption of reasonableness.... [I]t will be a rare Guidelines sentence that is unreasonable.” (internal quotation marks and citations omitted)). We grant counsel’s request. III. Conclusion For the foregoing reasons, we Affirm the district court’s judgment and Grant Curry’s counsel’s request to withdraw and" }, { "docid": "22540514", "title": "", "text": "decision reconciled the conflicting interests of indigent appellants in zealous representation and the judicial system in the efficient administration of justice. Anders and its progeny discuss the adequacy of the brief which the appointed counsel must file in support of the motion to withdraw. Very little discussion exists, however, about the role of the courts in reviewing Anders briefs and requests for withdrawal of counsel. See, e.g., United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996) (noting dearth of case law and holding that “if the brief explains the nature of the ease and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous.”). This case presents a recurring issue: once appointed counsel has filed an Anders brief, should the indigent defendant be allowed to reject his attorney, have the Anders brief stricken, and proceed with his appeal pro se? Our circuit as well as others have routinely allowed indigent defendants to proceed pro se after an Anders brief has been filed and appointed counsel has been allowed to withdraw. See, e.g., United States v. Stuttley, 103 F.3d 684 (8th Cir.1996), cert. denied, — U.S. -, 118 S.Ct. 83, 139 L.Ed.2d 40 (1997); United States v. Henderson, 72 F.3d 463 (5th Cir.1995); United States v. Koff, 43 F.3d 417 (9th Cir.1994); United States v. Balzano, 916 F.2d 1273 (7th Cir.1990). Underlying this practice is the recognition that a criminal defendant has a constitutional and a statutory right to represent himself on appeal. See 28 U.S.C. § 1654; Myers v. Collins, 8 F.3d 249, 252 (5th Cir.1993). Although the right undoubtedly exists, we are compelled to examine closely when that right must be exercised on appeal and the appropriate standard to apply in order to further the principles of Anders. By analogy we look to the right of a defendant to proceed pro se during a criminal trial. We have" }, { "docid": "16002191", "title": "", "text": "and request permission to withdraw. Defense counsel also has the responsibility of filing a brief referring to anything in the record that may arguably support an appeal. 386 U.S. at 744, 87 S.Ct. 1396. We have stated that “[t]he duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) to explain why the issues are frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). In his Anders brief, Thomas’ counsel averred that upon a complete review of the record he concluded that there are no non-frivolous issues for appellate review. Further, in order to discharge the duty to cite to anything in the record that may arguably support an appeal, counsel’s Anders brief noted that Thomas applied for a downward departure but that the District Court, although recognizing that it had the authority to depart from the first-degree murder guideline where the defendant did not cause the death knowingly or intentionally, found that Thomas’ conduct was within the heartland of the guideline. Likewise, the District Court, acknowledging that it had authority to take into account various “discouraged sentencing factors” in considering a downward departure (here, Thomas’ asserted mental and emotional conditions and his limited education and vocational skills), held that it would not exercise this discretion to grant a downward departure in Thomas’ case. Finally, counsel’s Anders brief also referenced Thomas’ guilty-plea hearing — although counsel maintained that the Fed. R.Crim.P. 11 proceeding was sufficient in all respects. Appellate counsel then requested permission to withdraw. Further, as required by Anders, counsel gave Thomas notice of his brief and advised him that he had the opportunity to file a pro se brief. Thereafter, Thomas filed a pro se brief raising several issues. First, Thomas contends that Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), precludes the application of U.S.S.G. § 2A1.1 to his case. Second, he complains that his Fed.R.Crim.P. 11 hearing was deficient in several respects. Finally, he raises an ineffective assistance of counsel claim." }, { "docid": "22660614", "title": "", "text": "for the appellate court to be guided in reviewing the record by the An-ders brief itself.” Id. at 553. However, that is not the status of the brief here. Although the Anders brief does -not assist us, we note that Youla’s pro se brief does provide this Court with some guidance concerning the issues he wishes to raise on appeal. Although not the brief of counsel, we find that it “explains the nature of the case and ... discusses the issues that the type of case might be expected to involve.” In such a circumstance, we extrapolate from Wagner’s recommendation that we confine our scrutiny to those portions of the record identified by an adequate Anders brief, see id., so that our examination of the record is informed by those issues raised in Appellant’s pro se brief. An appeal on a matter of law is frivolous where “[none] of the legal points [are] arguable on their merits.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (citing Anders, 386 U.S. at 744, 87 S.Ct. 1396). After examining the record, we find that Youla has raised a nonfrivolous issue with respect to his sentencing, particularly whether the District Court correctly determined the intended loss at $400,000 based the credit limit of eight credit cards. When applying § 2F1.1 of the Sentencing Guidelines, courts are bound by the Commentary thereto. See United States v. Geevers, 226 F.3d 186, 189 (3d Cir.2000) (citing Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993)). Application Note 8 of the corre sponding Commentary provides in relevant part: Consistent with the provisions of S 2X1.1 (Attempt, Solicitation, or Conspiracy), if an intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it is greater than the actual loss. Sentencing Guidelines § 2F1.1, cmt. n. 8 (1998).. In § 2X1.1, judges are instructed to calculate the offense level for an attempted offense by taking the number for the completed offense and subtracting three. These sections might be applied to" }, { "docid": "22655609", "title": "", "text": "a new lawyer for the defendant.) If the brief explains the nature of the case and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous. We shall confine our scrutiny of the record to the portions of it that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer’s discussion of the issues that he chose to discuss is responsible and if there is nothing in the district court’s decision to suggest that there are other issues the brief should have discussed, we shall have enough basis for confidence in the lawyer’s competence to forgo scrutiny of the rest of the record. The resources of the courts of appeals are limited and the time of staff attorneys and law clerks that is devoted to searching haystacks for needles is unavailable for more promising research. Id. at 553. The Third Circuit follows the Seventh Circuit approach. See United States v. Youla, 241 F.3d 296 (3d Cir.2001) and United States v. Ripoll, 123 Fed.Appx. 479 (3d Cir.2005) (unpublished). We agree with the Seventh Circuit’s analysis and adopt its approach to Anders cases. The holding in this case, along with the holding in our companion case, United States v. Garland, No. 09-50317, 632 F.3d 877 (5th Cir.Tex.), setting forth the minimum standards for Anders briefs, will fully satisfy defendants’ Sixth Amendment right of counsel on direct appeal. Applying this process to the facts of Flores’ guilty plea and sentence, and based on our review of counsel’s brief and the relevant portions of the record referenced therein, we accept counsel’s assessment that Flores has no nonfrivolous issues to raise on appeal. III. Accordingly, counsel’s motion to withdraw is granted and the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. . We have incorporated a number of changes in the opinion suggested" }, { "docid": "22223891", "title": "", "text": "dismiss based on the defendant’s waiver. We now hold that in such a situation, if defense counsel concludes there is no basis to contest the validity of the waiver then she is responsible for submitting a brief similar to that required by Anders that addresses only the limited issues of: (1) whether defendant’s plea and waiver of appellate rights were knowing, voluntary, and competent, see United States v. Ibrahim, 62 F.3d 72, 74 (2d Cir.1995) (per curiam) (holding that “Anders briefs ... should always contain a discussion regarding a guilty plea”); or (2) whether it would be against the defendant’s interest to contest his plea, see id.; and (3) any issues implicating a defendant’s constitutional or statutory rights that either cannot be waived, or cannot be considered waived by the defendant in light of the particular circumstances, see, e.g., Rosa, 123 F.3d at 98; United States v. Yemitan, 70 F.3d 746, 748 (2d Cir.1995); Jacobson, 15 F.3d at 22-23. In such cases, if, after reviewing the record, defense counsel is satisfied that there are no non-frivolous issues for appeal, defense counsel should file an Anders brief, confined to these issues alone, and an accompanying motion seeking to be relieved as counsel. Counsel must also advise the defendant-appellant in accordance with our normal Anders procedures, and the defendant-appellant must be given an opportunity to respond. This motion, as well as the government’s motion to dismiss, can then be decided by a Motions Panel of this Court, unless it concludes that there are non-frivolous issues for appeal. If the Motions Panel reaches such a conclusion, the motion to be relieved as counsel should be denied, as should the government’s motion to dismiss, and the case should then be heard by a Merits Panel in accordance with our standard procedures. See Instructions for Appealing a Criminal Case to the U.S. Court of Appeals for the Second Circuit (January 1997). A. Issues in the Brief In preparing an Anders brief in these circumstances, counsel should examine both the adequacy of the defendant’s waiver and whether the defendant’s plea and sentence were in accord with" }, { "docid": "7455099", "title": "", "text": "of Third Circuit Local Appellate Rule 109.2(a), and 2) whether an independent review of the record presents any nonfrivolous issues. United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009). An appeal on a matter of law is frivolous where none of the legal points are arguable on their merits. United States v. Youla, 241 F.3d 296, 301 (3d Cir.2001). 1. The Appellate Division did not err by applying Anders procedures in the habeas context Simon argues that the Appellate Division erred by applying Anders procedures to allow court-appointed appellate counsel to withdraw from post-conviction representation. Simon urges this Court to impose a rule that would require such an attorney to fully brief the merits of an appeal of the denial of a habeas petition, even though there is no constitutional right to counsel in the habeas context. Anders procedures are meant to protect a defendant’s constitutional right to counsel. See Pennsylvania v. Finley, 481 U.S. 551, 554-55, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Because that right exists on direct appeal but not in collateral proceedings, Anders procedures are not required in the habeas context. See id. at 555, 557, 107 S.Ct. 1990 (“Since respondent has no underlying constitutional right to appointed counsel in state post-conviction proceedings, she has no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right.”). Because Anders procedures afford heightened protections, however, it is not erroneous to apply them in the habeas context. Indeed, Anders procedures afford the petitioner a more careful review of the merits of an appeal than might occur without an attorney or with a less than conscientious attorney. Applying Anders procedures in the habeas context does not deprive the petitioner of anything that he would be given in any other format. The Appellate Division did not, therefore, err by applying Anders procedures in the habeas context. 2. The Appellate Division erred by finding counsel’s Anders brief sufficient as a matter of law Simon contends that the Appellate Division erred by affirming the denial of his habeas petition based on Hermon-Percell’s Anders brief." }, { "docid": "7455098", "title": "", "text": "over decisions rendered by the Territorial Court pursuant to 48 U.S.C. §§ 1613a(a) and 1613a(d). Accordingly, we have jurisdiction pursuant to 28 U.S.C. § 1291 and 48 U.S.C. § 1613a(c). B. Anders Procedures Simon contends that the Appellate Division erred by applying Anders procedures in the habeas context and by affirming the Territorial Court’s denial of his habeas petition. We review legal conclusions de novo and factual findings for clear error. Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny Cnty., 653 F.3d 290, 295 (3d Cir.2011). Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel may seek to withdraw from representing an indigent criminal defendant on appeal if there are no nonfrivolous issues to appeal. United States v. Marvin, 211 F.3d 778, 779 (3d Cir.2000). We exercise plenary review to determine whether there are any such issues. See Penson v. Ohio, 488 U.S. 75, 80-83 & n. 6, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We must determine: 1) whether counsel adequately fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a), and 2) whether an independent review of the record presents any nonfrivolous issues. United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009). An appeal on a matter of law is frivolous where none of the legal points are arguable on their merits. United States v. Youla, 241 F.3d 296, 301 (3d Cir.2001). 1. The Appellate Division did not err by applying Anders procedures in the habeas context Simon argues that the Appellate Division erred by applying Anders procedures to allow court-appointed appellate counsel to withdraw from post-conviction representation. Simon urges this Court to impose a rule that would require such an attorney to fully brief the merits of an appeal of the denial of a habeas petition, even though there is no constitutional right to counsel in the habeas context. Anders procedures are meant to protect a defendant’s constitutional right to counsel. See Pennsylvania v. Finley, 481 U.S. 551, 554-55, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Because that right exists on direct appeal but not in" }, { "docid": "23630580", "title": "", "text": "The district court weighed Vallar’s testimony against the government agents’ and concluded that Vallar lacked credibility. We find no clear error in this conclusion. See United States v. Ofcky, 237 F.3d 904, 910 (7th Cir.2001) (affirming the application of an obstruction enhancement “where the trial judge weighed the testimony of the defendant against that of others and determined that the defendant’s testimony lacked credibility.”); see also United States v. Pedigo, 12 F.3d 618, 628-29 (7th Cir.1993). We affirm the district court’s application of the obstruction enhancement. G. Anders Brief in the Case of Tyrail Curry Curry pled guilty to Count One, the conspiracy charge, on September 6, 2006. He admitted to participating in Iniguez’s drug enterprise by assisting in the receipt and distribution of cocaine in Kentucky. The district court sentenced Curry to 210 months of imprisonment, the lowest within-guidelines sentence, and five years of supervised release. Curry’s counsel, a Federal Public Defender in the Central District of Illinois, concludes that Curry’s case is without merit and submits an Anders brief seeking permission to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Curry did not respond to counsel’s facially adequate brief. See Cir. R. 51(b). We limit our review to the potential issues counsel discusses. United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel first considers whether Curry has any non-frivolous arguments to challenge his conviction. Since Curry does not seek to challenge his guilty plea on appeal, counsel properly declines to address any plea-related issues in his Anders brief. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Counsel does consider, however, whether Curry has any non-frivolous arguments challenging his sentence. He properly concludes that Curry has none. First, Curry’s within-guideline, 210-month sentence did not constitute a violation of law where it did not exceed the statutory maximum sentence of life, 21 U.S.C. § 841(b)(1)(A); United States v. Franz, 886 F.2d 973, 977 (7th Cir.1989), and where nothing in the record indicates that the district court violated Curry’s equal protection, due process, or other constitutional rights, see, e.g.," } ]

[ { "docid": "15774012", "title": "", "text": "Motion, JA at 62a. Although we express no views on the merits of appellants’ argument, it certainly presents issues of fact and credibility which contradict appellees’ particularized and general allegations. The assertion that the inmates could control who observed them, and when, rebuts the contention implicitly made in all of appellees’ affidavits, and explicitly stated in their complaint, that exposure of their nude bodies was “forced” and “without their consent”. JA at 5a, 9a. Thus, even if the basic facts were conceded, SEC v. Frank, supra, 388 F.2d at 490, the inferences to be drawn from them are in dispute. Consequently an evidentia-ry hearing should have been provided if practicable. Id. And this is hardly a case where an evidentiary hearing would have been impracticable due to the magnitude of the inquiry. SEC v. Frank, supra, 388 F.2d at 490-91; SEC v. Petrofunds, Inc., supra, 414 F.Supp. at 1196 n. 7. Nor would the taking of evidence have served little purpose. Herbert Rosenthal Jewelry Corp. v. Grossbardt, 428 F.2d 551, 554 (2d Cir. 1970); Redac Project 6426, Inc. v. Allstate Insurance Co., 402 F.2d 789, 790-91 (2d Cir. 1968); SEC v. Frank, supra, 388 F.2d at 490. There is no apparent reason for having denied appellees an opportunity to present and cross-examine witnesses. The facts are simple and the time consumed in an evidentiary hearing would be minimal. Resolution of the factual questions, most of which present credibility issues, with the benefit of cross-examination and the opportunity to observe the witnesses’ demeanor on the stand, is essential. Because of the important interests of the parties in both preventing privacy invasions and retaining work assignments, the district judge should conduct an evidentiary hearing on the preliminary injunction motion as soon as convenient, but no-later than December 15, 1977. We suggest that the district judge consider consolidating the trial on the merits with the evidentiary hearing pursuant to Rule 65(a)(2). Fed.R.Civ.P. 65(a)(2). Reversed and remanded. . Male correction officers were assigned to Bedford Hills in response to the defendants’ jointly held belief that Title VII of the 1964 Civil Rights Act requires" } ]

[ { "docid": "5047524", "title": "", "text": "of pretrial detention. The criminal trial would not be a useful forum for a defendant who was claiming the right to pretrial release. Id. (emphasis in original). The Court finds the reasoning of Bethune persuasive. Pinckney does not seek equitable relief based on his objection to the state administrative quasi judicial process as violative of his constitutional rights. Rather, he contests his prehearing suspension without pay. Even if he appears at the disciplinary hearing and is awarded back pay, that remedy will not right his “claim that the penalty could not constitutionally precede the hearing.” Id. Accordingly, the Court declines to abstain from the limited portion of this case seeking to enjoin the defendants from suspending the plaintiff without pay prior to the disciplinary hearing. B. The preliminary injunction 1. The standard for a preliminary injunction The plaintiff seeks a preliminary injunction reinstating his salary and benefits “pending a hearing on the disciplinary charges.” A preliminary injunction is considered an “extraordinary remedy that should not be granted as a routine matter.” JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 80 (2d Cir.1990); see also Patton v. Dole, 806 F.2d 24, 28 (2d Cir.1986); Medical Soc’y of N.Y. v. Toia, 560 F.2d 535, 538 (2d Cir.1977). In Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam), the Second Circuit set forth the applicable standard in this Circuit in order to obtain preliminary injunctive relief. According to Jackson Dairy, the movant must clearly establish the following: (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. Id.; see also Able v. United States, 44 F.3d 128, 130 (2d Cir.1995); Alan Skop, Inc. v. Benjamin Moore, Inc., 909 F.2d 59, 60 (2d Cir.1990) (per curiam); Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 972 (2d Cir.1989). Where the injunction at issue will either alter, rather than maintain the status" }, { "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": "22289043", "title": "", "text": "et seq.; Coca-Cola denied any wrongdoing and claimed that under the distributorship agreement the termination dispute should be arbitrated. The district judge found that the agreement did require arbitration of the termination dispute, and he stayed proceedings on the Robinson-Patman claims until arbitration was completed. Plaintiff’s motion for a preliminary injunction was denied at the same time the judge ordered arbitration. We reverse the denial of the preliminary injunction because it appears, from the record before us, that the district court believed its decision to refer the dispute to arbitration stripped the court of power to grant injunctive relief. The fact that a dispute is to be arbitrated, however, does not absolve the court of its obligation to consider the merits of a requested preliminary injunction; the proper course is to determine whether the dispute is “a proper case” for an injunction. Erving v. Virginia Squires Basketball Club, 468 F.2d 1064, 1067 (2d Cir.1972); see Boys Markets, Inc. v. Retail Clerk’s Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). There is no 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." }, { "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": "23179337", "title": "", "text": "and comprehensive record in this case provided a more than adequate source for Judge Mukasey’s factual findings. Moreover, the record indicates that Minorco never requested a hearing. The only apparent reference to a hearing in Minorco’s extensive submissions to the district court is found on page 103 of Minorco’s memorandum in opposition to the preliminary injunction, and that reference merely restated the general principle set forth in Fengler. Such an oblique “request” was insufficient to preserve Minor-co’s right to a hearing. Minorco, having been content to rest on affidavits submitted to the District Court, waived its right to an evidentiary hearing. See Fengler v. Numismatic Americana, Inc., supra, 832 F.2d at 748; see also SCM v. Xerox Corp., 507 F.2d 358 (2d Cir.1974) (affirming denial of antitrust preliminary injunction without a hearing). B. The Preliminary Injunction In this Circuit, a court may issue a preliminary injunction 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 the 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). We may reverse such relief only if the District Court exceeded its discretion in granting the injunction—that is, if it applied an incorrect legal standard or relied on a clearly erroneous finding of fact. See AMR Services Corp. v. International Brotherhood of Teamsters, 821 F.2d 162, 163 (2d Cir.1987) (per curiam). 1. Likelihood of Success. The District Court concluded that the proposed acquisition would substantially lessen competition in the non-communist gold market because it involved a combination of entities holding market shares of 20.3% (Minorco) and 12% (Gold Fields). However, the District Court determined that only two of the plaintiffs— Newmont and Newmont Gold — could demonstrate that the resulting post-acquisition entity threatened them with “antitrust injury.” In order to obtain injunctive relief under section 16, plaintiffs must show a threat of “antitrust injury,” Cargill, Inc. v. Monfort of" }, { "docid": "3944442", "title": "", "text": "of Jones’ actions on USA’s standing with program suppliers, advertisers, and other major cable systems operators affiliated with plaintiff. After a hearing on September 30, the Court denied plaintiff’s request for a temporary restraining order pending the outcome of the preliminary injunction motion. On the merits of the complaint, the Court found that plaintiff would likely demonstrate that the defendant’s October 3 reduction in carriage of USA breached the affiliation agreement. The Court also found, however, that defendant would likely demonstrate its right to terminate the agreement as of December 31,1988 or, at a minimum, that defendant had demonstrated a fair ground for litigation on this issue. With respect to irreparable harm, the Court found that USA stood to lose only a marginal percentage of its national access to cable subscribers; the principal injury complained of, the damage to its reputation flowing from industry-wide knowledge of Jones’ dissatisfaction with USA, could not be repaired after the fact by a restraining order; to the extent that prospective damages had been adequately demonstrated, no showing was made that they could not be redressed by money damages; and, to the extent that broad, long-term noncompensa-ble damages to reputation were asserted, they were too remote and speculative to justify injunctive relief. After further submission of memoranda and affidavits, the Court conducted a preliminary injunction hearing on November 18, following which the Court took plaintiffs application under advisement. DISCUSSION IRREPARABLE INJURY The standard for obtaining a preliminary injunction in this circuit is well established and undisputed. The moving party must demonstrate a) that it will suffer irreparable harm in the absence of injunctive relief and b) either a likelihood of success on the merits or 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. United States v. Bedford Associates, 618 F.2d 904, 912 n. 15 (2d Cir.1980); Jackson Diary, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). Also undisputed, but worthy of repetition in this case, is that a preliminary injunction is an" }, { "docid": "3081329", "title": "", "text": "865 F.2d 920, 922 (7th Cir.1989). The claims in this case were all inextricably and exhaustively interwoven. This was apparent at the beginning of the hearings and became clearer as time progressed. It is in the interest of justice and finality to resolve the state claims as supplemental to the federal ones. I. Preliminary Injunction Motion is Granted in Part and Denied in Part The Standard for Injunctive Belief Ordinarily, in order for preliminary injunctive relief to issue, a movant is required to show: irreparable harm and either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits of its claims to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor. See Jackson Dairy Inc. v. Hood, 596 F.2d 70, 72 (2d Cir.1979); International Banknote Co. v. Muller, 713 F.Supp. 612, 618 (S.D.N.Y.1989). If an application for a preliminary injunction, in fact, seeks substantially all the relief that a plaintiff ultimately seeks, a more stringent standard of proof is required. See White Directory, Inc. v. Rochester Tel., 714 F.Supp. 65, 67 n. 3 (W.D.N.Y.1989); See also SEC v. Unifund Sal, 910 F.2d 1028, 1039 (2d Cir.1990). Moreover, to obtain an injunction the party seeking the relief must also establish that the threat of irreparable injury is likely without the requested relief. See International Banknote, 713 F.Supp. at 618. Irreparable injury results from the use of false and misleading proxies when the free exercise of shareholders’ voting rights will be frustrated. J.I. Case Co. v. Borak, 377 U.S. 426, 431, 84 S.Ct. 1555, 1559, 12 L.Ed.2d 423 (1980). If the deficiencies with the proxy statement alleged by the Committee were to meet the standard of materiality below, then the threat of irreparable harm will follow. Standard of Materiality The Committee must satisfy the standard of materiality with respect to the deficiencies it asserts. Rule 14a-9 of the Securities Exchange Commission (SEC), False and Misleading Statements, states: “No solicitation subject to this regulation shall be made by means of any proxy statement ... containing any statement which," }, { "docid": "23259808", "title": "", "text": "Beveridge, then placement in those schools would satisfy 20 U.S.C. § 1415(e)(3). See Stipulation of the Parties in CV 79-0-300 [Exhibit # 6]. V. Aside from requesting that this Court provide for the interim placement of Marla and Daniel, the plaintiffs seek a preliminary injunction appointing an impartial hearing officer to determine an appropriate placement for these children. Unlike the request for an interim placement, the resolution of this issue is governed by the standard for the granting of preliminary injunctions. The purpose of a preliminary injunction is to maintain the status quo pending resolution of the litigation. Jordan v. Wolke, 593 F.2d 772, 773 (7th Cir. 1978). Generally, a preliminary injunction will fulfill this function by prohibiting the defendant from taking harmful action while a suit is being litigated. However, when the plaintiff will suffer irreparable harm because of the defendant’s inaction, a court may grant a mandatory preliminary injunction requiring the defendant to take certain affirmative action pending resolution of the litigation. See 7 Moore’s Federal Practice ¶ 65.04[1] (1979). Traditionally, courts have disfavored mandatory preliminary injunctions and have granted them in only rare situations. See Harris v. Wilters, 596 F.2d 678, 680 (5th Cir. 1979); Jordan v. Wolke, supra, 593 F.2d at 773-74; Jacobson & Co. v. Armstrong Cork Company, 548 F.2d 438, 441, 441 n.3 (2d Cir. 1977). Such injunctions are only granted when the moving party has made a clear showing that the facts and law entitle him to preliminary relief. Flintkote Co. v. Blumenthal, 469 F.Supp. 115, 125-26 (N.E.N.Y.1979), aff’d 596 F.2d 51 (2d Cir. 1979). Bricklayers, Masons, Marble and Tile Setters, Protective and Benevolent Union v. Lueder Construction Company, 346 F.Supp. 558, 561 (D.Neb.1972). The standard for determining whether a party is entitled to preliminary relief is well settled in this Circuit. A party is not entitled to a preliminary injunction unless he makes a showing of either “(1) probable success on the merits and possible irreparable injury, 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" }, { "docid": "12893118", "title": "", "text": "that the two conditions precedent within the alleged four part agreement still have not occurred. See id. at 19. Defendants also assert that they have gained no advantage by using Spencer Trask’s reputation and name to increase financing from other sources. See Khan Aff. ¶ 12. Defendants further argue the balance of hardships actually tips in their own favor because an injunction would disrupt RPost’s operations and efforts to raise capital and would inflict harm on other shareholders. Defs’ Mem. at 21. Further, they urge the Court to consider the prece-dential result from issuing a TRO. That is to say, defendants argue an injunction would send a clear message to all prospective investors in start-up companies that they simply can sue to interrupt financing based solely on oral communications when they are unable to achieve results through consensual negotiations. See id. Plaintiffs have agreed to post an undertaking in the amount of $1 million pending the resolution of a preliminary injunction motion, which is the amount of their promised investment in the Series C round. Discussion The standard for granting a temporary restraining order and a preliminary injunction pursuant to Rule 65 of the Federal Rules of Procedure are identical. It is well established that in order to obtain such relief, 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’. See Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). Whether injunctive relief should issue or not “rests in the sound discretion of the district court which, absent abuse of discretion, will not be disturbed on appeal.” Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir.1990) (quoting Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 755, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986)). A temporary restraining order pursuant to Fed.R.Civ.P. Rule 65(b) is designed to preserve the status" }, { "docid": "759920", "title": "", "text": "a district court should the management omit the proposals from the company’s proxy statement.” Goldin Affidavit In Support of Motion for Preliminary Injunction, Exhibit 1. In light of Borak, and the decisions of this court vindicating a private right of action brought to contest the exclusion of shareholder proposals, we conclude that NYCERS can seek an interpretation of Rule 14a-8 as applied to its particular proposal in this court. The standard for issuance of a preliminary injunction in this circuit is the 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 Inc., 596 F.2d 70, 72 (2d Cir.1979). Irreparable harm occurs “where there is a continuing wrong which cannot be adequately redressed by final relief on the merits.” New York Pathological and X-Ray Laboratories, Inc. v. Immigration and Naturalization Service, 523 F.2d 79, 81 (2d Cir.1975). Brands claims that NYCERS cannot claim irreparable injury because the court possesses the power to order the resolieitation of proxies if plaintiff ultimately prevails on the merits at trial, Defendant’s Memorandum of Law in Opposition to Motion for Preliminary Injunction at 42, and cites decisions by this court in which the shareholders failed to obtain preliminary relief. These cases are inapposite. In Catalano v. Trans World Corporation, No. 83 Civ. 1771, slip op. (S.D.N.Y. March 18, 1983) (Brieant, J.) plaintiffs— family members — unsuccessfully sought an order requiring six separate proposals to be included in a proxy solicitation, contrary to SEC regulations which permit only two. To the extent the proposals suggested waste, corporate wrongdoing, or management’s breach of fiduciary duty, the court held that plaintiff shareholders had an “adequate remedy without recourse to the Annual Shareholders Meeting or the proxy solicitation materials.” Id. at 5. The court suggested that plaintiffs request that the Board of Directors bring a lawsuit against the malefactors and, if that request is denied," }, { "docid": "22988935", "title": "", "text": "amount of security required as a condition of the preliminary injunction. Chase filed a notice of appeal from the orders on March 30, 1979. The legal standard in the Second Circuit for preliminary injunctive relief clearly calls for a showing of (a) possible 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); Caulfield v. Board of Education, 583 F.2d 605, 610 (2d Cir. 1978). We agree with Chase that these prerequisites have not been established by KMW. In the first place, KMW has not shown that it will suffer possible irreparable injury absent the injunction. KMW claims a possible loss of $347,539.55. This circuit does not recognize as irreparable harm a loss that may be adequately redressed by a monetary award. Jackson Dairy, supra; Hudson Tire Mart, Inc. v. Aetna Casualty & Surety Co., 518 F.2d 671, 675 (2d Cir. 1975); Robert W. Stark Jr., Inc. v. New York Stock Exchange, Inc., 346 F.Supp. 217, 231 (S.D.N.Y.), aff’d, 466 F.2d 743, 744 (2d Cir. 1972); Shelley v. The Maccabees, 183 F.Supp. 681, 684 (E.D.N.Y.1960). Appellant claims, however, that the financial damage which it may suffer is irreparable, since it will have no real remedy, at least by way of resort to Iranian courts, if Chase were to pay a demand which appears to comply with the terms of credit but is in fact fraudulent. But this damage is purely conjectural. At the time the preliminary injunction was granted, Chase had received no demand for payment whatsoever; that a later demand would necessarily be fraudulent is at best speculative. “[Ijnjunctive relief can and should be predicated only on the basis of a showing that the alleged threats of irreparable harm are not remote or speculative but are actual and imminent.” State of New York v. Nuclear Regulatory Commission, 550 F.2d" }, { "docid": "22773661", "title": "", "text": "to induce investments must allege particular facts demonstrating the knowledge of defendants at the time that such statements were false. 3. The Forum-Selection Clame Paragraph 22 of the Broadway Associates Limited Partnership Agreement provides that in all actions arising out of the Partnership Agreement or breach thereof, the parties agreed to confer exclusive jurisdiction upon the Supreme Court of New York, New York County. Pursuant to this provision, the district court dismissed the limited partners’ claims based on state and common law and the Securities Act of 1933. Forum-selection clauses are not disfavored in the law. See Scherk v. Alberto-Culver Co., 417 U.S. 506, 518 (1974); The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972). As Judge Friendly noted in AVC Nederland B.V. v. Atrium Investment Partnership, 740 F.2d 148, 156 (2d Cir.1984), “[tjhere can be nothing ‘unreasonable and unjust’ in enforcing such an agreement; what would be unreasonable and unjust would be to allow one of the [parties] to disregard it.” Plaintiffs, sophisticated investors who warranted their familiarity with the agreement, have failed to offer any reason for us not to enforce the forum-selection clause in this case. 4. Denial of Preliminary Injunctive Relief In order to obtain a preliminary injunction, plaintiffs were required to show both irreparable harm and 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 plus a balance of hardships tipping decidedly toward the moving party. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). In denying plaintiffs’ preliminary injunction request, the district court found that plaintiffs’ allegations implicated only the potential loss of their investment — economic injury that, because it does not constitute irreparable harm, is insufficient to justify the granting of a preliminary injunction. Sperry International Trade, Inc. v. Government of Israel, 670 F.2d 8,12 (2d Cir.1982); KMW International v. Chase Manhattan Bank, N.A., 606 F.2d 10, 14-15 (2d Cir. 1979). The decision to grant or deny preliminary injunctive relief rests in the sound discretion of the" }, { "docid": "11770588", "title": "", "text": "of the Partners’s employees who performed similar tasks at the building. The argument is untenable in light of the clear language of Article II.6, which states that the work preservation provision of Article II applies “for the employees employed in a particular building,” and mentions nothing about preserving employee positions for future employees of contractors. Accordingly, the district court did not err in concluding that the present dispute was not arbitrable as a result of the six Partners’s employees not being covered by the Agreement. 3. Preliminary Injunction The general standard for issuing a preliminary injunction requires that the movant 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 a preliminary injunction for an abuse of discretion, and “will reverse the district court only if it relied on clearly erroneous findings of fact, misapprehended the law, or erred in formulating the injunction.” Id. The Union contends that the district court abused its discretion in issuing the preliminary injunction, because it failed to (1) hold a hearing and make findings on irreparable harm, and (2) require that the plaintiffs post a bond. There is no merit to these contentions. As we have previously explained, “ ‘there is no hard and fast rule in this circuit that oral testimony must be taken on a motion for a preliminary injunction or that the court can in no circumstances dispose of the motion on the papers before it.’ ” Consolidated Gold Fields PLC v. Minorco, S.A, 871 F.2d 252, 256 (2d Cir.1989) (quoting Redac Project 6426, Inc. v. Allstate Ins. Co., 402 F.2d 789, 790 (2d Cir.1968)). Generally, the district court is not required to conduct an evidentiary hearing on" }, { "docid": "6666517", "title": "", "text": "charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate.. .. While there was initially some dispute between the parties as to whether this section requires a showing of irreparable injury before a preliminary injunction can issue, both plaintiff and defendants now seem to agree that such a showing is required. Thus, in order to be entitled to a preliminary injunction under § 706(g) of the Act, plaintiff must meet the traditional standards for the granting of preliminary relief. As is the rule in this Circuit, he must make a clear 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, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam); Jack Kahn Music Co. v. Baldwin Piano and Organ Co., 604 F.2d 755, 758 (2d Cir. 1979). This court, after having carefully reviewed the record, concludes that plaintiff has met both prongs of the test and is therefore entitled to preliminary injunctive relief. 1. Irreparable Harm Generally, if an injury complained of may be compensated by an award of monetary damages, an adequate remedy at law exists and no irreparable injury may be found as a matter of law. Jackson Dairy Inc. v. H. P. Hood & Sons, Inc., supra, 596 F.2d at 72. The Second Circuit has recognized, however, that even in situations where damages are available, irreparable harm may be found if damages are “clearly difficult to assess and measure.” Danielson v. Local 275, Laborers International Union of North America, 479 F.2d 1033, 1037 (2d Cir. 1973). See also Niagara Mohawk Power Corp. v. Graver Tank & Manufacturing Co., 470 F.Supp. 1308, 1327-28 (N.D.N.Y.1979); Miller Brewing Co. v. Carling O’Keefe Breweries of Canada, Ltd., 452 F.Supp. 429, 438 (W.D.N.Y.1978). Based on the evidence presented to date," }, { "docid": "16904916", "title": "", "text": "“working group” plan. Finally, the third claim requests attorneys’ fees. II. DISCUSSION At first blush, this action presents the seemingly vexing mandate of reconciling the public interest in protecting and preserving precious natural lands with the rights of the disabled to equal access to the environment and reasonable public accommodations. This Court recognizes the solemn responsibility of the public and State to respect the environment as a whole and those special areas entrusted to us in particular. Today’s decision to grant Plaintiffs’ request for preliminary injunction, extending to the disabled access to the Adirondack Park, is made possible by what intervening Defendants characterize as the State’s intensive and unnecessary use of motorized vehicles in protected Adirondack lands. Personal sacrifice to preserve the environment does not rest solely on the backs of the disabled. Nor are the remaining pristine portions of the environment to be available only to the able-bodied. A. Preliminary Injunction Standard “The general standard for issuing a preliminary injunction requires that the mov-ant show ‘(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 a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.’ ” Maryland Casualty Co. v. Realty Advisory Bd. on Labor Relations, 107 F.3d 979, 984 (2d Cir.1997) (quoting International Dairy Foods Ass’n v. Amestoy, 92 F.3d 67, 70 (2d Cir.1996) (quoting in turn Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979))). With respect to government action, however, an applicable exception to this general standard exists. See Able v. United States, 44 F.3d 128, 131 (2d Cir.1995) (“[ajlthough a plaintiff who demonstrates irreparable harm may usually satisfy either [1] or [2], this choice is not always available.”). [Wjhere the moving party seeks to stay government action taken in the public interest pursuant to a statutory or regulatory scheme, the district court should not apply the less rigorous fair ground for litigation standard and should not grant the injunction unless the moving party establishes, along" }, { "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": "2701988", "title": "", "text": "the Elmsford franchise, we cannot decide this on the basis of the present record. As noted, there are several outstanding issues of fact to be resolved with respect to the Elmsford franchise. Consequently, KFC’s motion of a preliminary injunction cannot be decided prior to an evidentiary hearing. We will schedule such a hearing upon the request of either party. D. Plaintiffs Motion for a Preliminary Injunction A preliminary injunction is an extraordinary equitable remedy which should be granted sparingly. It is inappropriate if damages can be calculated with reasonable accuracy and a monetary award would provide adequate compensation for the claimed harm. Loveridge v. Pendleton Woolen Mills, Inc., 788 F.2d 914, 918 (2d Cir.1986). To prevail on a motion for 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). The plaintiff claims that he will suffer irreparable injury because if KFC terminates his franchises and notifies his suppliers of the termination, he will be put out of business. Further, he claims, if he is forced out of business for a significant period of time, he will lose goodwill. Finally, he argues that obviously if he is shut down he will not earn any revenues and will therefore be unable to meet his fixed expenses. With respect to the second prong of the standard, the plaintiff maintains that he has a strong likelihood of success on the merits. Moreover, he argues, the balance of hardships tips in his favor since, although termination of his outlet would put him out of business, KFC would suffer no injury at all if he is permitted to continue to operate his outlets. Because our findings differ as to each store, we will discuss them separately. 1. The Elmsford Outlet As we indicated above, the plaintiff claims that he" }, { "docid": "1140695", "title": "", "text": "in-junctive relief. In order to determine whether or not to issue a preliminary injunction restraining dissemination of the Solicitation, this Court applies the Second Circuit’s two-alternative test enunciated in Jackson Dairy, Inc., v. H. P. Hood and Sons, 596 F.2d 70 (1979) which requires 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. Id. at 72. See Mulligan, Foreward-Preliminary Injunction in the Second Circuit, 43 Brooklyn L.Rev. 831 (1977). The purpose of a discretionary grant of this extraordinary relief is “to preserve the status quo between the parties pending final determination of the merits of the action.” Diversified Mortgage Investors v. U. S. Life Title Insurance Co., 544 F.2d 571, 576 (2d Cir. 1976). The need to maintain the status quo arises when irreparable harm from any change is imminent. Proof of irreparable injury, i. e., harm that cannot otherwise be measured in dam ages, has always been necessary to the issuance of injunctive relief. Jackson Dairy, supra, 596 F.2d 70 at 73. The trustee has satisfied the first prong of the Jackson Dairy test by demonstrating that the harm that flows from dissemination of misleading information to Debentureholders is to prevent them from making an informed decision concerning the proposed Offer. It is clear that the proposed communication requesting written support of defendants’ position on the Offer is a proxy solicitation, and as such must conform to the bankruptcy law and securities law. Bankruptcy Rule 208(a) defines proxies and solicitations as follows: (a) Definitions. (1) Proxy. A proxy includes a power of attorney, proof of claim, or other writing authorizing any person who does not then own a claim to vote the claim or otherwise act as the owner’s attorney in fact in connection with the administration of an estate of bankruptcy. (2) Solicitation of a proxy. The solicitation of a proxy is any communication, other than one from an attorney" }, { "docid": "6666516", "title": "", "text": "As stated earlier, the Government contends that there are only ten active complaints pending investigation. These complaints have been consolidated for expeditious processing in accordance with 29 C.F.R. 1613. 251(b) (Russel Aff., attached as Exh. B to Aff. of Michael D. Patrick). In any event, even assuming that not all of plaintiff’s claims are ripe for adjudication, the court will examine the question of plaintiff’s re-assignment against the backdrop of a series of allegedly discriminatory actions taken by the INS in retaliation for plaintiff’s having engaged in protected EEO activities. Viewed in this light, the court concludes that plaintiff is entitled to preliminarily enjoin the re-assignment pending a final determination of this case. Conclusions of Law The court has jurisdiction of this action pursuant to § 717(c) of the Civil Rights Act of 1964, as amended (the Act), 42 U.S.C. § 2000e-16(c). Section 706(g) of the Act, 42 U.S.C. § 2000e-5(g) provides in relevant part: If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate.. .. While there was initially some dispute between the parties as to whether this section requires a showing of irreparable injury before a preliminary injunction can issue, both plaintiff and defendants now seem to agree that such a showing is required. Thus, in order to be entitled to a preliminary injunction under § 706(g) of the Act, plaintiff must meet the traditional standards for the granting of preliminary relief. As is the rule in this Circuit, he must make a clear 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, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam); Jack Kahn Music" }, { "docid": "18699616", "title": "", "text": "for a Preliminary Injunction The requirements for issuance of a preliminary injunction in this Circuit are clear. For an injunction to issue, 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. Standard & Poor’s Corp. v. Commodity Exchange, Inc., 683 F.2d 704, 707 (2d Cir.1982); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). In addition, although “not explicitly mentioned” in this Circuit, the public interest may be considered in deciding whether to issue the injunction. Standard & Poor’s, supra, 683 F.2d at 711; Brown & Williamson Tobacco Corp. v. Engman, 527 F.2d 1115, 1121 (2d Cir.1975), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1976). Addressing each of these criteria in turn, I find that a preliminary injunction should issue. (1) Irreparable injury would occur if defendant were permitted to pursue withdrawal liability against plaintiff. Plaintiff has lost its customers during the protracted strike, and will be unlikely to regain them in the face of a claim for withdrawal liability. Such a claim, whether valid or not, sends a signal to people in the industry that the company in question is out of business. The testimony of Trustee Finkle is instructive: having been informed only that the claim had been made against TIME-DC, he “assumed they were out of business” and “weren’t operating.” Finkle Deposition at 19-21. I find that this harm would exist even if plaintiff were compelled to arbitrate the withdrawal liability issue, because arbitration presumes that the Board of Trustees has determined that a permanent cessation of activities had occurred. In practical terms, then, arbitration signals to prospective customers that the company is out of business. (2) As the discussion of the labor dispute exception’s applicability indicates, see § III., supra, it is unclear whether plaintiff is likely to prevail on the merits. The preliminary injunction" } ]

[ { "docid": "378712", "title": "", "text": "least is inefficient and upon completion of the agency process might prove to have been unnecessary.” FTC v. Standard Oil Co. of California, 449 U.S. 232, 242, 101 S.Ct. 488, 494, 66 L.Ed.2d 416 (1980). The two doctrines are intended to further slightly different interests. Ripeness is primarily concerned with ensuring that issues are in a posture fit for judicial review. Gulf Oil Corp. v. U.S. Dep’t of Energy, 663 F.2d 296, 311 (D.C.Cir.1981). Finality is primarily concerned with protecting the integrity of the administrative process. FTC v. Standard Oil Co. of California, supra. Notwithstanding this difference in emphasis, the doctrines tend to converge in that both are meant to prevent premature judicial intervention in the administrative process. Though these doctrines limit judicial action, they do not do so in a precise and inflexible way. The Supreme Court has instructed us that we should apply the finality requirement in a “flexible” and “pragmatic” way. See Abbott Laboratories, supra, 387 U.S. at 149-150, 87 S.Ct. at 1515-16. And this finality requirement is intimately bound up with the “fitness” prong of the ripeness inquiry. In determining whether a case is ripe the court must decide whether it is “sufficiently final * * * that we would have no interest in postponing review,” Midwestern Gas Transmission Co. v. FERC, 589 F.2d 603, 618 (D.C.Cir.1978) (emphasis added), and when disinclined to find finality, “we must then weigh this consideration against the immediate impact of the actions on the challengers, and whether that impact is so harmful that present consideration is warranted.” Id. Even this flexibility will not usually suffice, however, to permit judicial resolution of substantive issues that are the subject of an ongoing agency proceeding. See Abbott Laboratories, supra, 387 U.S. at 148, 87 S.Ct. at 1515 (ripeness doctrine “proteet[s] the agencies from judicial interference until an administrative decision has been formalized”); Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1180 (D.C.Cir.1979) (Leventhal, J., concurring) (finality doctrine permits judicial intervention in ongoing agency proceeding only in cases of clear violation of statutory mandate, see Leedom v. Kyne, 358 U.S. 184, 79" } ]

[ { "docid": "5466964", "title": "", "text": "noted in Better Government Association v. Department of State, 780 F.2d 86 (D.C.Cir.1986), [although it is true that “ripeness law overlaps at its borders with Article III requirements of case or controversy,” its application in the present case implicates the doctrine in only its prudential aspects. In that form, the ripeness inquiry takes into account pragmatic concerns regarding “the institutional capacities of, and the relationship between, courts and agencies.” These concerns include “the agency’s interest in crystallizing its policy before that policy is subjected to judicial review,” “the court’s interests in avoiding unnecessary adjudication and in deciding issues in a concrete setting,” and “the petitioner’s interest in prompt consideration of allegedly unlawful agency action.” In Abbott Laboratories, the Supreme Court announced the two-prong test for ripeness that balances these interests. The test requires a court to evaluate “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. at 92 (quoting Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985) and Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515) (footnotes omitted). No one disputes that the Commission’s jurisdictional holding is fit for judicial review. The question is a purely legal one; any necessary factual findings have been fully developed in the proceedings below. The ICC’s decision is “crystallized,” Eagle-Picher, 759 F.2d at 915; indeed one is hard-pressed to imagine how the issue could arise in “some more concrete and final form.” Id. (quoting Continental Airlines, Inc. v. CAB, 522 F.2d 107, 124-25 (D.C.Cir.1974) (en banc); see also Payne Enterprises, Inc. v. United States, 837 F.2d 486, 492-93 (D.C.Cir.1988). The agency’s labelling of the jurisdictional issue as “principal” confirms the Commission’s position at oral argument that its institutional interests support immediate adjudication. The union has made equally clear that its interests do so as well. In light of the fact that the agency consistently has asserted its right to review arbitration awards since its decision in this case, Joint Brief of Respondents ICC and USA at 11, we can see no judicial institutional interest that militates against review at" }, { "docid": "14280524", "title": "", "text": "to hear an untimely challenge. Id. at 1282. The EPA argued in its brief that because the petitioners did not first ask the EPA to reconsider the HRS before challenging it in this proceeding, their challenge is barred for failure to follow the procedures outlined in Investment Co. Inst. We disagree. The EPA’s application of ’ the HRS to individual sites in order to decide which sites should be listed on the NPL is sufficiently analogous to the \"application in agency adjudication” method to satisfy Investment Co. Institute’s procedural requirements. . 33 U.S.C. §§1251 et seq. (1982). . 580 F.2d at 672. . Counsel for the petitioners conceded at oral argument that there is no problem of inadequate notice in this case. . 580 F.2d at 673. . Id. at 674. . For further comparison between Diamond Shamrock and the instant case, see note 67 infra. . See, e.g., Regional Rail Reorganization Act Cases, 419 U.S. 102, 138, 95 S.Ct. 335, 355, 42 L.Ed.2d 320 (1974); South Carolina Elec. & Gas Co. v. ICC, 734 F.2d 1541, 1545 (D.C.Cir.1984); 4 K. Davis, Administrative Law Treatise § 25:1, at 350 (2d ed. 1983); Gellhorn & Boyer, supra note 38 at 319. . See, e.g., Abbott Laboratories, 387 U.S. at 148-49, 87 S.Ct. at 1515-16; American Trucking Ass'ns, Inc. v. ICC, 747 F.2d 787, 789-90 (D.C.Cir. 1984); Andrade v. Lauer, 729 F.2d 1475, 1480 (D.C.Cir.1984); Diamond Shamrock, 580 F.2d at 672-74; Continental Airlines, Inc. v. CAB, 522 F.2d 107, 124-25 (D.C.Cir.1974) (en banc); National Automatic Laundry & Cleaning Council v. Shultz, 443 F.2d 689, 694-704 (1971). In our discussion here, we refer to the doctrine only in its prudential aspects. No party to this case has argued that the constitutional criteria have not been met, and we assume for the purposes of our analysis that they have been met. . 387 U.S. at 149, 87 S.Ct. at 1515. . See, e.g., Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515; B.G. & E., 672 F.2d at 149; Continental Air Lines, 522 F.2d at 126; National Automatic Laundry, 443 F.2d at 695." }, { "docid": "11305072", "title": "", "text": "regulations governing corporate dissemination of voter guides, 11 C.F.R. § 114.4(b)(5), as promulgated under section 441b of the Act. Since the plaintiffs have not requested an FEC advisory opinion as to whether the MRLC’s planned newsletter activities are governed by section 441b, their claims are not ripe for adjudication. Ripeness is “peculiarly a question of timing.” Buckley v. Valeo, 424 U.S. at 114, 96 S.Ct. at 680. The ripeness problem is “twofold ...[,] requiring [the court] to evaluate the fitness of the issues for judicial resolution and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). The “basic rationale” of the ripeness doctrine is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. Id. at 148-49, 87 S.Ct. at 1515. Whether an issue is ripe for adjudication turns upon a bipartite analysis. Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515. “Under the ‘fitness of the issues’ [test, the] court takes account of the institutional capacities of, and the relationship between, courts and agencies.” Eagle-Picher Industries, Inc. v. United States Environmental Protection Agency, 759 F.2d 905, 915 (D.C.Cir.1985). The court considers whether it “will benefit from deferring review until the agency’s policies have crystallized and the ‘question arises in some more concrete and final form.’ ” EaglePicher Industries, 759 F.2d at 915 (quoting Continental Air Lines, Inc. v. Civil Aeronautics Board, 522 F.2d 107, 124-25 (D.C. Cir.1974). Accord State Farm Mutual Auto Insurance Co. v. Dole, 802 F.2d 474, 479 (1986), (“[E]ven when ... the issues presented are purely legal, a court may nonetheless properly deem a matter unfit for resolution if postponing review would provide for a more efficient examination and disposition of the issues.”), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 800 (1987). See also First Commodity Corp. of Boston v." }, { "docid": "9713753", "title": "", "text": "for review a twofold inquiry must be made: first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief to the parties is denied at that stage.” Toilet Goods, 387 U.S. at 162, 87 S.Ct. at 1523; accord Abbott, 387 U.S. at 148-49, 87 S.Ct. at 1515. The D.C. Circuit has stated that this twofold inquiry “in essence requires the court to balance its interest in deciding the issue in a more concrete setting against the hardship to the parties caused by delaying review. Thus, if the hardship [to the parties] is slight, ‘only a minimum showing of countervailing judicial or administrative interest is needed ... to tip the balance against judicial review.’ ” Webb v. Department of Health and Human Serv., 696 F.2d 101, 106 (D.C.Cir.1982) (footnotes omitted) (quoting Diamond Shamrock Corp. v. Costle, 580 F.2d 670, 674 (D.C.Cir. 1978)); accord Continental Airlines, Inc. v. Civil Aeronautics Bd., 522 F.2d 107, 124-25 (D.C.Cir.1974) (rehearing en banc). In resolving the fitness prong of the ripeness issue, we must determine if the challenged action raises purely legal questions. If so, it is presumptively fit for judicial review, unless the courts or agency would benefit from postponement of review until the agency’s policy has crystallized or the question arises in a more concrete setting. See Better Gov't Assoc. v. Department of State, 780 F.2d 86, 92 (D.C.Cir.1986); Eagle-Picker Indus. v. United States Envtl. Protection Agency, 759 F.2d 905, 915 (D.C.Cir.1985); accord Toilet Goods, 387 U.S. at 162-64, 87 S.Ct. at 1523-24. The Commissioner states that the FAFR practice has been in existence for over sixty years since the decision in Ex parte Ball, 1924 Dec. Comm’r Pat. 123 (1923). Although Molins challenges this assertion, neither party disputes that the practice has existed for an extended period of time. Accordingly, we agree that the PTO’s FAFR policy is in final form and will assume for the purposes of this opinion that Molins’ facial challenge to this policy presents purely legal questions. Thus, the issue is presumptively fit for judicial review." }, { "docid": "14280525", "title": "", "text": "F.2d 1541, 1545 (D.C.Cir.1984); 4 K. Davis, Administrative Law Treatise § 25:1, at 350 (2d ed. 1983); Gellhorn & Boyer, supra note 38 at 319. . See, e.g., Abbott Laboratories, 387 U.S. at 148-49, 87 S.Ct. at 1515-16; American Trucking Ass'ns, Inc. v. ICC, 747 F.2d 787, 789-90 (D.C.Cir. 1984); Andrade v. Lauer, 729 F.2d 1475, 1480 (D.C.Cir.1984); Diamond Shamrock, 580 F.2d at 672-74; Continental Airlines, Inc. v. CAB, 522 F.2d 107, 124-25 (D.C.Cir.1974) (en banc); National Automatic Laundry & Cleaning Council v. Shultz, 443 F.2d 689, 694-704 (1971). In our discussion here, we refer to the doctrine only in its prudential aspects. No party to this case has argued that the constitutional criteria have not been met, and we assume for the purposes of our analysis that they have been met. . 387 U.S. at 149, 87 S.Ct. at 1515. . See, e.g., Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515; B.G. & E., 672 F.2d at 149; Continental Air Lines, 522 F.2d at 126; National Automatic Laundry, 443 F.2d at 695. . Continental Air Lines, 522 F.2d at 124-25 (fitness prong inquiries into interests of court and agency in postponing review); see also Midwestern Gas Transmission Co. v. FERC, 589 F.2d 603, 618 (D.C.Cir.1978) (fitness prong inquires into court’s interest in postponing review). . Continental Air Lines, 522 F.2d at 125 (footnote omitted). . See, e.g., Midwestern Gas, 589 F.2d at 618; Diamond Shamrock, 580 F.2d at 672; Continental Air Lines, 522 F.2d at 124-25. Professor Davis, on the other hand, believes that these institutional concerns should be evaluated under the \"hardship to the parties\" prong. Davis, supra note 52, § 25:6, at 368-69. See also EPA v. National Crushed Stone Ass'n, 449 U.S. 64, 72-73 n. 12, 101 S.Ct. 295, 301-302 n. 12, 66 L.Ed.2d 268 (1980) (taking agency's interest into account under \"hardship to the parties\"). It seems to matter little which prong is assigned these institutional concerns, so long as the interests of the agency and the court in deferring review, when they exist, are weighed against the petitioner’s conflicting interest in immediate" }, { "docid": "9657669", "title": "", "text": "as in this case, there are no institutional interests favoring postponement of review, and in fact the agency and the court have a positive interest in immediate review, “there are no conflicting interests to balance.” Eagle-Picher, 759 F.2d at 918. It is enough that the petitioner show that it has suffered sufficient hardship to pass the Article III threshold. Because we have already determined that Consol has shown sufficient hardship to satisfy the constitutional requirement, it seems obvious that “[w]e need not proceed ... to the second prong of the Abbott Laboratories test.” Eagle-Picher, 759 F.2d at 918; see also Midwestern Gas Transmission Co. v. FERC, 589 F.2d 603, 621 (D.C.Cir.1978). Id. at 1081-82 (footnotes omitted). Moreover, even if we were required to consider whether Payne has demonstrated sufficient hardship “to outweigh any institutional interests in the deferral of review,” Better Government, 780 F.2d at 92, we would still find this suit ripe for review. Indeed, our decision in Better Government is controlling on this point. The continued use by the Air Force of a practice of unreasonably delaying the release of information pertaining to bid abstracts “has a,‘direct and immediate’ impact on the appellants that rises to the level of hardship.” Better Government, 780 F.2d at 93 (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 152, 87 S.Ct. 1507, 1517, 18 L.Ed.2d 681 (1967)). Payne relies “heavily and frequently on FOIA” to conduct work that is “essential to the performance of certain of their primary institutional activities.” Id. “Thus, the ‘primary conduct’ of the appellants is affected by the [practice] at issue.” Id. Consequently, because “[ajppellants are indisputably frequent FOIA requesters, whose daily conduct and decision-making are affected by the [practice] at issue,” id. at 95, and because there are no significant agency or judicial interests militating in favor of delay, no balance can be struck against a finding that this case is ripe for judicial review. In sum, the collection of interests relevant to the adjudication of Payne’s suit points ineluctably to the conclusion that this case is ripe for decision. C. Payne’s Right to Equitable Relief The" }, { "docid": "9657668", "title": "", "text": "initial denial followed by the eventual release of the requested document, resulting in financial injury to Payne. Third, Payne obviously has an interest in the speedy adjudication of its grievance, so there is little question regarding the appellant’s “interest in prompt consideration of allegedly unlawful agency action.” Eagle-Picher, 759 F.2d at 915. However, as we suggested in Eagle-Picher, this factor is largely irrelevant in a case of this sort because we have not found here that either the agency or the court has a significant interest in postponing review. Id. at 915, 918. In other words, under the ripeness doctrine, the hardship prong of the Abbott Laboratories test is not an independent requirement divorced from the consideration of the institutional interests of the court and agency. As we held in Consolidation Coal Co. v. Federal Mine Safety & Health Review Commission, 824 F.2d 1071 (D.C.Cir.1987): This case stands in sharp contrast to the typical ripeness case, however; here, the interests of both the court and the agency favor immediate review of the Commission’s finding. Where, as in this case, there are no institutional interests favoring postponement of review, and in fact the agency and the court have a positive interest in immediate review, “there are no conflicting interests to balance.” Eagle-Picher, 759 F.2d at 918. It is enough that the petitioner show that it has suffered sufficient hardship to pass the Article III threshold. Because we have already determined that Consol has shown sufficient hardship to satisfy the constitutional requirement, it seems obvious that “[w]e need not proceed ... to the second prong of the Abbott Laboratories test.” Eagle-Picher, 759 F.2d at 918; see also Midwestern Gas Transmission Co. v. FERC, 589 F.2d 603, 621 (D.C.Cir.1978). Id. at 1081-82 (footnotes omitted). Moreover, even if we were required to consider whether Payne has demonstrated sufficient hardship “to outweigh any institutional interests in the deferral of review,” Better Government, 780 F.2d at 92, we would still find this suit ripe for review. Indeed, our decision in Better Government is controlling on this point. The continued use by the Air Force of a" }, { "docid": "11119899", "title": "", "text": "Inc. v. Bloom, 562 F.2d 736, 740-41 (D.C.Cir.1977); Independent Bankers Association v. Smith, 534 F.2d 921, 929 (D.C. Cir.1976); Continental Airlines, Inc. v. CAB, 522 F.2d 107, 124-25 (D.C.Cir.1975) (en banc). . Diamond Shamrock Corp. v. Costle, 580 F.2d 670, 674 (D.C.Cir.1978). . Appellant’s Brief at 23-25; Appellant’s Reply Brief at 3-4. . See text at notes 8-11, supra. . Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967). . At oral argument Webb argued that the district court’s refusal to adjudicate section 314.-14’s validity at the present time worked an extraordinary hardship on him because he is a frequent FOIA requester who constantly seeks documents in NDAs. However, nothing in the record suggests that Webb has made more than two FOIA requests, one of which resulted in his receiving the requested documents. See text at note 19, supra. In any event, the hardship is not great because Webb is only required to file one FOIA action in which there is a live dispute before he can challenge section 314.14. As noted in the text above, this is not the type of hardship which warrants immediate review of issues not otherwise fit for judicial decision. . 387 U.S. at 152-53, 87 S.Ct. at 1517. . New York Stock Exchange, Inc. v. Bloom, 562 F.2d 736, 741 (D.C.Cir.1977). . 562 F.2d 736 (D.C.Cir.1977). . Id. at 742. . In determining “whether there is sufficient hardship to the parties to warrant our review” the court should determine “whether the challenged action will be reviewable in the future. If it will not be reviewable later, our review now. may be warranted .... ” Bethlehem Steel Corp. v. EPA, 536 F.2d 156, 163 (D.C.Cir.1976). . Webb maintains that this court’s decision in Mead Data Central, Inc. v. Department of the Air Force, 566 F.2d 242 (D.C.Cir.1977), bars a district court from adjudicating the validity of section 314.14 in the context of a particularized FOIA request. In Mead Data Central we rejected the argument that an agency’s failure to follow the procedures outlined in Vaughn v." }, { "docid": "12060574", "title": "", "text": "suit is ripe, courts must balance “the petitioner’s interest in prompt consideration of allegedly unlawful agency action against the agency’s interest in crystallizing its policy before that policy is subjected to judicial review and the court’s interests in avoiding unnecessary adjudication and in deciding issues in a concrete setting.” Payne Enterprises v. United States, 837 F.2d 486, 492 (D.C.Cir.1988) (quoting Eagle-Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985)). In applying the ripeness doctrine, we have explained how an assessment of the “fitness” prong may affect the relevance of any alleged “hardship.” Under the “fitness of the issues” prong, this court takes account of the institutional capacities of, and the relationship between, courts and agencies. We look, for example, to see if the issue raises a purely legal question. If it does, we assume its threshold suitability for judicial determination. We also consider whether the agency or the court will benefit from deferring review until the agency’s policies have crystallized and the “question arises in some more concrete and final form” [Continental Air Lines Inc. v. Civil Aeronautics Board, 522 F.2d 107, 125 (D.C.Cir.1974) ]. Should we decide that either the agency or the court has a significant interest in postponing review, we will decline to hear the petitioner’s claim at that time unless, under the “hardship to the parties” prong, the “interest of those who seek relief from the challenged action’s ‘immediate and practical impact’ upon them,” [Continental Air Lines, 522 F.2d at 125], outweighs the competing institutional interest in deferring review. Eagle-Picher, 759 F.2d at 915 (footnotes omitted). In other words, “the hardship prong of the Abbott Laboratories test is not an independent requirement divorced from the consideration of the institutional interests of the court and agency.” Payne Enterprises, 837 F.2d at 493. See also Consolidation Coal Co. v. Federal Mine Safety & Health Review Comm’n, 824 F.2d 1071, 1081-82 (D.C.Cir.1987). Where there are no significant agency or judicial interests militating in favor of delay, “hardship” cannot tip the balance against judicial review, see Payne Enterprises, 837 F.2d at 493 n. 10; or, alternatively, when a case is" }, { "docid": "14140676", "title": "", "text": "marks and citations omitted). In Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), the Supreme Court established a two-part test that requires this court “to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” If after applying this standard the court determines that “the interests of the court and agency in postponing review outweigh the interests of those seeking relief, settled principles of ripeness squarely call for adjudication to be postponed.” National Ass’n of Regulatory Utility Comm’rs v. DOE, 851 F.2d 1424, 1428 (D.C.Cir.1988) (quoting State Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d 474, 480 (D.C.Cir.1986)). If the agency policy at issue is “is likely to be abandoned or modified before it is actually put into effect, then its review wastes the court’s time and interferes with the process by which the agency is attempting to reach a final decision.” Continental Air Lines, Inc. v. Civil Aeronautics Board, 522 F.2d 107, 125 (D.C.Cir.1974). The two-prong test expressed in Abbott Laboratories seeks to prevent judicial intervention “until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories, 387 U.S. at 148-49, 87 S.Ct. 1507. However, where a case “raises a purely legal question, threshold suitability for judicial determination is assumed.” Maryland Dept. of Human Resources v. Sullivan, 738 F.Supp. 555, 561 (D.D.C.1990) (quoting Eagle-Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985)). The controversy in this case is similar to the one at issue in Maryland Department of Human Resources. There a Maryland agency appealed an HHS funding decision to the DAB. The DAB remanded part of the claims and Maryland subsequently filed suit asserting that the challenged program instruction, PI 82-06, was a legislative rule which should have been issued after notice and comment rulemaking. Because the DAB remanded the appeal “no final administrative decision exist[ed].” Maryland Dept. of Human Resources, 738 F.Supp. at 561. Despite the lack of a final administrative decision, the court held that the plaintiffs were" }, { "docid": "2322189", "title": "", "text": "is a facial challenge to the Commission’s fee waiver regulations. We hold, however, that due to uncertainties in the actual meaning of the regulations at issue, petitioners’ challenge is not ripe for review. The ripeness doctrine, in its prudential form, is concerned with “the petitioner's interest in prompt consideration of allegedly unlawful agency action[,] * * * the agency’s interest in crystallizing its policy before that policy is subjected to judicial review and the court’s interests in avoiding unnecessary adjudication and in deciding issues in a concrete setting.” Eagle-Picher Industries, Inc. v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985) (footnote omitted). In evaluating ripeness claims, the Supreme Court has instructed reviewing courts to determine “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Petitioners contend that the Commission’s final regulations are sufficiently “crystallized” and will not be modified or abandoned before they are put into effect, and that the issue presented — whether the regulations are arbitrary and capricious — is a “purely legal question,” Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1516, ‘which allows the court to “assume its threshold suitability for judicial determination,” Eagle-Picher, 759 F.2d at 915. We disagree. Where an agency has discretion in the application of the challenged regulations, as in this case, a purely facial challenge may not be ripe for review if the agency could grant the requested relief and thereby obviate the need for judicial review. See Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967) (“judicial appraisal of [the relevant] factors is likely to stand on a much surer footing in the context of a specific application of [the] regulation than could be the case in the framework of the generalized challenge made here”); Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940-41 (D.C.Cir.1986); Air New Zealand Ltd. v. Civil Aeronautics Board, 726 F.2d 832, 836 (D.C.Cir.1984). In the case sub judice, the" }, { "docid": "11104765", "title": "", "text": "v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985); see also State Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d 474, 480 (D.C.Cir.1986) (“[I]f the interests of the court and agency in postponing review outweigh the interests of those seeking relief, settled principles of ripeness squarely call for adjudication to be postponed.”), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 800 (1987). The Supreme Court established the framework for reaching this balance in Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), where the Court set forth a two-pronged test that requires a reviewing court “to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Under the “fitness of the issues” prong, the first question for a reviewing court is “whether the disputed claims raise purely legal questions and would, therefore, be presumptively suitable for judicial review.” Better Gov’t [Ass’n v. Department of State], 780 F.2d [86] at 92 [(D.C.Cir.1986) ]; see also Payne [Enterprises, Inc. v. United States], 837 F.2d [486] at 492 [ (D.C.Cir.1988) ]; Eagle-Picher, 759 F.2d at 915. Next, we consider whether the court or the agency would benefit from postponing review until the policy in question has sufficiently “crystallized” by taking on a more definite form. Better Gov’t, 780 F.2d at 92. City of Houston v. HUD, 24 F.3d 1421, 1431 (D.C.Cir.1994). The “court’s interests in avoiding unnecessary adjudication and in deciding issues in a concrete setting,” Eagle-Picher, 759 F.2d at 915, militate in favor of postponing review if, for example, the court finds “that resolution of the dispute is likely to prove unnecessary,” or “that the court’s deliberations might benefit from letting the question arise in some more concrete ... form,” State Farm, 802 F.2d at 479 (internal quotation omitted). Here, we find that these considerations weigh against immediate review of petitioners’ procedural due process claims. First, it is uncertain whether any employees will in fact be subjected to the permanent employ ment bar without the benefit of procedural due process. There is no doubt," }, { "docid": "2322190", "title": "", "text": "presented — whether the regulations are arbitrary and capricious — is a “purely legal question,” Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1516, ‘which allows the court to “assume its threshold suitability for judicial determination,” Eagle-Picher, 759 F.2d at 915. We disagree. Where an agency has discretion in the application of the challenged regulations, as in this case, a purely facial challenge may not be ripe for review if the agency could grant the requested relief and thereby obviate the need for judicial review. See Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967) (“judicial appraisal of [the relevant] factors is likely to stand on a much surer footing in the context of a specific application of [the] regulation than could be the case in the framework of the generalized challenge made here”); Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940-41 (D.C.Cir.1986); Air New Zealand Ltd. v. Civil Aeronautics Board, 726 F.2d 832, 836 (D.C.Cir.1984). In the case sub judice, the Commission virtually concedes that petitioners PFAW and UCS would qualify for preferred status as “representatives of the news media.” See Commission Brief at 36 (PFAW and UCS, for purposes of regular publication of a newsletter or periodical, would qualify for reduced fees). In light of the Commission’s discretion in the application of its own regulations, see Cross-Sound Ferry Services, Inc. v. Interstate Commerce Commission, 873 F.2d 395, 401 (D.C.Cir.1989), we think the Commission should at least be given the first opportunity to apply its regulations to petitioners. Accordingly, “postponing review would provide for a more efficient examination and disposition of the issues,” State Farm Mutual Automobile Insurance Co. v. Dole, 802 F.2d 474, 479 (D.C.Cir.1986) (citations omitted), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 800 (1987). We cannot therefore conclude that the facial challenge raised by petitioners is, at this time, “fit” for judicial review. Petitioners argue that Better Government Association v. Department of State, 780 F.2d 86, 92-96 (D.C.Cir.1986), compels a finding of ripeness in this case, but we are not" }, { "docid": "11119898", "title": "", "text": "455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). . Rule 59(e) provides: “A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.” Fed.R.Civ.P. 59(e). . Obin v. District No. 9, International Association of Machinists, 651 F.2d 574 (8th Cir.1981); Johnson v. Snyder, 639 F.2d 316, 317 (6th Cir.1981); Bond v. Stanton, 630 F.2d 1231, 1234 (7th Cir.1980); Knighton v. Watkins, 616 F.2d 795, 797-98 (5th Cir.1980). . White, 102 S.Ct. at 1167-68. . 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962). . 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964). . 371 U.S. at 217, 83 S.Ct. at 285 (emphasis added). . 375 U.S. at 387, 84 S.Ct. at 398. . Appellant’s Brief at 12. The same concession was made during oral argument. . 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). . Id. at 149, 87 S.Ct. at 1515. . Midwestern Gas Transmission Co. v. FERC, 589 F.2d 603, 618 (D.C.Cir.1978); New York Stock Exchange, Inc. v. Bloom, 562 F.2d 736, 740-41 (D.C.Cir.1977); Independent Bankers Association v. Smith, 534 F.2d 921, 929 (D.C. Cir.1976); Continental Airlines, Inc. v. CAB, 522 F.2d 107, 124-25 (D.C.Cir.1975) (en banc). . Diamond Shamrock Corp. v. Costle, 580 F.2d 670, 674 (D.C.Cir.1978). . Appellant’s Brief at 23-25; Appellant’s Reply Brief at 3-4. . See text at notes 8-11, supra. . Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967). . At oral argument Webb argued that the district court’s refusal to adjudicate section 314.-14’s validity at the present time worked an extraordinary hardship on him because he is a frequent FOIA requester who constantly seeks documents in NDAs. However, nothing in the record suggests that Webb has made more than two FOIA requests, one of which resulted in his receiving the requested documents. See text at note 19, supra. In any event, the hardship is not great because Webb is only required to file one FOIA action in which there is a live dispute before he" }, { "docid": "866406", "title": "", "text": "a good deal of confusion, because litigants will not know when an intervenor can succeed in bringing a new claim before the court. Under the majority’s rule, inter-venors planning both to support and to challenge agency decisions can conceal their intentions, thereby frustrating the agency’s efforts to mount a complete defense. In any event, even if the majority is correct that under CPBF we have discretion to decide whether to entertain South-Trust’s authority argument, it is hard for me to imagine a case where prudence would point more strongly towards restraint. After all, the Board, as the government has pointed out, has not even responded to the government’s interpretation of the Douglas Amendment, and it remains unclear whether the Board, following a remand from this court, would reassert its authority over the relocation of STNB at all. Cf. State Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d 474, 479 (D.C.Cir.1986) (under ripeness doctrine a court may “properly deem a matter unfit for resolution if ... ‘further administrative action is needed to clarify the agency’s position,’ ... or ... resolution of the dispute is likely to prove unnecessary.” (quoting Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940 (D.C.Cir.1986)) (other citations omitted)), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 800 (1987). In the meantime, SouthTrust, who, as inter-venor, supported the Board’s order — and only alternatively challenged the Board’s authority — is operating in Georgia facing no immediate threat from the Board. Cf. id. at 479-80 (“[F]or an institutional interest in deferral to be outweighed, postponing review must impose a hardship on the complaining party that is immediate, direct, and significant.... ‘The mere potential for future injury,’ moreover, is not enough.” (quoting Alascam, Inc. v. FCC, 727 F.2d 1212, 1217 (D.C.Cir.1984)) (emphasis in original)). IV. Nevertheless, the majority, like a heat-seeking missile (which even Sherman did not have), has zoomed by and through all obstacles that I believe dictate restraint to decide whether the Board has authority over the transaction that resulted in South-Trust’s move of its main office across the Georgia line. I think" }, { "docid": "14280526", "title": "", "text": ". Continental Air Lines, 522 F.2d at 124-25 (fitness prong inquiries into interests of court and agency in postponing review); see also Midwestern Gas Transmission Co. v. FERC, 589 F.2d 603, 618 (D.C.Cir.1978) (fitness prong inquires into court’s interest in postponing review). . Continental Air Lines, 522 F.2d at 125 (footnote omitted). . See, e.g., Midwestern Gas, 589 F.2d at 618; Diamond Shamrock, 580 F.2d at 672; Continental Air Lines, 522 F.2d at 124-25. Professor Davis, on the other hand, believes that these institutional concerns should be evaluated under the \"hardship to the parties\" prong. Davis, supra note 52, § 25:6, at 368-69. See also EPA v. National Crushed Stone Ass'n, 449 U.S. 64, 72-73 n. 12, 101 S.Ct. 295, 301-302 n. 12, 66 L.Ed.2d 268 (1980) (taking agency's interest into account under \"hardship to the parties\"). It seems to matter little which prong is assigned these institutional concerns, so long as the interests of the agency and the court in deferring review, when they exist, are weighed against the petitioner’s conflicting interest in immediate review. . Section 113(a), 42 U.S.C. § 9613(a) (1982). . Cf. Harrison v. PPG Indus., Inc., 446 U.S. 578, 592, 100 S.Ct. 1889, 1897, 64 L.Ed.2d 525 (1980) (noting that the purpose of a similar review provision, section 307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1), is “to provide prompt pre-enforcement review of EPA action”); Lubrizol Corp. v. Train, 547 F.2d 310, 315 (6th Cir. 1976) (same). . No party to this proceeding has argued that the application of the HRS to sites in order to produce the NPL constitutes \"enforcement” under section 113(a) of CERCLA. For the purposes of this case, we assume, without deciding, that it does not. Nonetheless, we believe that the explicit preference articulated by the review provision against review of agency action upon enforcement is relevant here, because it emphasizes the intent of Congress that, whenever possible, regulations issued under CERCLA be reviewed immediately upon promulgation, without waiting until the agency acts with regard to a specific petitioner. . Cf. National Crushed Stone Ass’n, 449 U.S. at 73" }, { "docid": "12359669", "title": "", "text": "JIRC and the Supreme Court of Virginia ought to be afforded the opportunity to crystallize their policy in this important matter, which is perhaps unique among all state interests. 2. Hardship “[T]he purpose of the ‘hardship to the parties’ analysis is to ascertain if the harm that deferring review will cause the petitioner[ ] outweighs the benefits it will bring the agency and the court.” West Virginia Highlands Conservancy, Inc. v. Babbitt, 161 F.Bd 797, 801 (4th Cir.1998) (iquoting Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 918 (D.C.Cir.1985)). For “deferral to be outweighed, postponing review must impose a hardship on the [plaintiff] that is immediate, direct, and significant.” Id. at 800 (quoting State Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d 474, 480 (D.C.Cir.1986). “Whether [the plaintiffs] charges are sufficiently serious under the ‘hardship to the parties’ criterion to warrant immediate review depends upon [the] totality of the circumstances.” Id. at 801 (quoting Atlantic Richfield Co. v. DOE, 769 F.2d 771, 783 (D.C.Cir.1984) (quotations omitted; second alteration in original)). Also important in the context of this action is that, although the threat of criminal penalty militates in favor of a finding of hardship, see Navegar, Inc. v. United States, 103 F.3d 994, 999-1002 (D.C.Cir.1997), threat of civil enforcement is considered a hardship that generally does not call for judicial intervention. See Lee v. Oregon, 107 F.3d 1382, 1391-92 (9th Cir.), cert. denied, 522 U.S. 927, 118 S.Ct. 328, 139 L.Ed.2d 254 (1997). Plaintiffs assert that their reluctance to vote in primary elections for fear of adverse consequences stemming from the potential enforcement of Opinion No. 99-6 constitutes a hardship, and, further, that they will continue to suffer this hardship so long as this Court defers adjudication of the claims raised in their complaint. More particularly, Plaintiffs characterize their hardship as the “compelled non-participation in the processes of democratic government.” Pl.’s Opp’n at 6. In support of their allegation of hardship, Plaintiffs aver that they themselves have refrained from voting in primaries, and that Chief Judge F. Bruce Bach of the Fairfax County Circuit Court has publicly stated that" }, { "docid": "11104764", "title": "", "text": "specific class made subject to a challenged testing regulation has standing to attack the regulation without offering evidence that he or she is particularly likely to be tested. See Amalgamated Transit Union v. Skinner, 894 F.2d 1362, 1366 (D.C.Cir.1990) (Transit workers had “sufficiently personal stake in the outcome of [a challenge to drug testing regulations] to satisfy Article III standing requirements” where the workers were subject to drug testing under certain circumstances.); see also Committee for GI Rights v. Callaway, 518 F.2d 466, 472 (D.C.Cir.1975) (The court found standing upon concluding that plaintiff members of the armed forces “are subject to all aspects of the on-going [drug monitoring and rehabilitation] program which allegedly violates their constitutional rights.”). Nevertheless, we find that petitioners’ procedural due process claims are not ripe for review. In the context of judicial review of agency action, the ripeness doctrine largely represents a prudential attempt to balance the interests of the court and the agency in delaying review against “the petitioner’s interest in prompt consideration of allegedly unlawful agency action.” Eagle-Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985); see also State Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d 474, 480 (D.C.Cir.1986) (“[I]f the interests of the court and agency in postponing review outweigh the interests of those seeking relief, settled principles of ripeness squarely call for adjudication to be postponed.”), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 800 (1987). The Supreme Court established the framework for reaching this balance in Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), where the Court set forth a two-pronged test that requires a reviewing court “to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Under the “fitness of the issues” prong, the first question for a reviewing court is “whether the disputed claims raise purely legal questions and would, therefore, be presumptively suitable for judicial review.” Better Gov’t [Ass’n v. Department of State], 780 F.2d [86] at 92 [(D.C.Cir.1986) ]; see also Payne [Enterprises, Inc." }, { "docid": "11305073", "title": "", "text": "issue is ripe for adjudication turns upon a bipartite analysis. Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515. “Under the ‘fitness of the issues’ [test, the] court takes account of the institutional capacities of, and the relationship between, courts and agencies.” Eagle-Picher Industries, Inc. v. United States Environmental Protection Agency, 759 F.2d 905, 915 (D.C.Cir.1985). The court considers whether it “will benefit from deferring review until the agency’s policies have crystallized and the ‘question arises in some more concrete and final form.’ ” EaglePicher Industries, 759 F.2d at 915 (quoting Continental Air Lines, Inc. v. Civil Aeronautics Board, 522 F.2d 107, 124-25 (D.C. Cir.1974). Accord State Farm Mutual Auto Insurance Co. v. Dole, 802 F.2d 474, 479 (1986), (“[E]ven when ... the issues presented are purely legal, a court may nonetheless properly deem a matter unfit for resolution if postponing review would provide for a more efficient examination and disposition of the issues.”), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 800 (1987). See also First Commodity Corp. of Boston v. Commodity Futures Trading Commission, 676 F.2d 1, 6 (1st Cir.1982). Awaiting an initial agency determination is particularly appropriate in the circumstances of the present case. The “limited review function of the [federal] courts is not rationally exercised by attempting to predict how the FEC would resolve this matter.” National Republican Congressional Committee v. Legi-Tech Corp., 795 F.2d 190, 193 (D.C.Cir.1986). If the FEC should issue an advisory opinion that MRLC is exempt from regulation under section 441b, plaintiffs would have no standing to challenge section 441b or any companion regulation. And if the FEC opines that MRLC is subject to section 441b, the advisory opinion process should produce a better foundation for judicial evaluation of the constitutional claims. See Anderson v. Federal Election Commission, 634 F.2d 3, 5 (1st Cir.1980). An FEC interpretation of the Act is entitled to substantial deference. See Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 37, 102 S.Ct. 38, 44, 70 L.Ed.2d 23 (1981). By vesting the FEC with primary jurisdiction over civil enforcement of the Act," }, { "docid": "14859128", "title": "", "text": "case, appellants’ challenges to the rules as applied, like the procedural challenge in Dow, were mooted by the agency’s curative actions. When courts apply the \"voluntary cessation” doctrine, they typically conclude that the case is not moot; in fact, it often should be more precisely stated that the entire case is not moot. . NRDC v. NRC, 680 F.2d at 814 (quoting California v. San Pablo & Tulare Railroad, 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893)). . Id. at 815. . See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 121-22, 94 S.Ct. 1694, 1697-98, 40 L.Ed.2d 1 (1974) (proper to award declaratory relief when need for injunction has been removed but challenged governmental practice continues). . Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985). . No party to this case contends that the constitutional criteria of the doctrine have not been met. . Eagle-Picher Indus., Inc., 759 F.2d at 915. . Id. . Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). . Id. at 149, 87 S.Ct. at 1515. . Id.; see also Eagle-Picher Indus., Inc., 759 F.2d at 915; Continental Airlines, Inc. v. CAB, 522 F.2d 107, 126 (D.C.Cir.1974) (en banc). . See Arkansas Power & Light Co. v. ICC, 725 F.2d 716, 725 (D.C.Cir.1984); Continental Airlines, Inc., 522 F.2d at 124-25. . Toilet Goods Assoc., Inc. v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967). . Although the meaning of the guidelines and regulation might be illustrated by their application to particular fee waiver requests, such illustrations are not necessary to appellants’ challenges. They contend that, even without application, the standards are facially inconsistent with FOIA and violate the APA, and are therefore illegal. It is these claims that we hereby hold ripe for review. . See Continental Airlines, Inc. v. CAB, 522 F.2d 107, 124 (D.C.Cir.1974) (\"The label an agency attaches to its action is not determinative.”). Although it is not clear whether State and Interior were required to adopt the DOJ guidelines, they apparently have constructively" } ]