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1987-01-15

United States Court of Appeals for the Eighth Circuit

Nichols v. Rysavy

Nichols v. Rysavy, 809 F.2d 1317 (1987)

1979-12-17

United States Court of Appeals for the Ninth Circuit

Loring v. United States

Loring v. United States, 610 F.2d 649 (1979)

11233_5

‘the interests and rights of the Indian in his allotment or patent after he has acquired it'

” F. Cohen, Handbook of Federal Indian Law 615-16 (1982). 12 . The Court stated: Section 345 thus contemplates two types of suits involving allotments: suits seeking the issuance of an allotment * * * and suits involving "

1987-01-15

United States Court of Appeals for the Eighth Circuit

Nichols v. Rysavy

Nichols v. Rysavy, 809 F.2d 1317 (1987)

1979-12-17

United States Court of Appeals for the Ninth Circuit

Loring v. United States

Loring v. United States, 610 F.2d 649 (1979)

11233_2

seeking the issuance of an allotment.

” 406 U.S., at 142, 92 S.Ct., at 1466. Even if this case were construed to involve an allotment, it is clearly an action "in relation to” the claimed right of an Indian to an allotment, rather than a suit "

1989-04-07

United States Court of Appeals for the Fourth Circuit

Quince Orchard Valley Citizens Ass'n v. Hodel

Quince Orchard Valley Citizens Ass'n v. Hodel, 872 F.2d 75 (1989)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_4

If the likelihood of success [on the merits] is great, the need for showing the probability of irreparable harm is less. Conversely, if the likelihood of success is remote, there must be a strong showing of the probability of irreparable injury to justify the issuance of the injunction.

“If the likelihood of success [on the merits] is great, the need for showing the probability of irreparable harm is less.

1986-07-31

United States Court of Appeals for the Fourth Circuit

Berry v. Bean

Berry v. Bean, 796 F.2d 713 (1986)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_3

(a) plaintiff’s likelihood of success in the underlying dispute between the parties; (b) whether plaintiff will suffer irreparable injury if interim relief is denied; (c) the injury to defendant if an injunction is issued; and (d) the public interest.

” Id. at 980. The district court also found that plaintiffs would probably succeed on the merits, id. at 980-82, and that the public interest favored keeping the family together and allowing Berry to continue her education. Id. at 982. Prior to oral argument on appeal, the parties stipulated to an additional fact relevant to our consideration of the case. Sergeant Young moved out of his assigned housing unit on Andrews Air Force Base on March 9, 1986, and the Base Commander terminated his housing privileges on March 10. There is no suggestion that this termination was in any way invalid, and we treat it simply as a factual matter for purposes of this appeal. Plaintiff Berry now resides with her stepfather and other family members off base in Maryland. Four factors enter the determination: “

1980-10-27

United States Court of Appeals for the Fourth Circuit

Wetzel v. Edwards

Wetzel v. Edwards, 635 F.2d 283 (1980)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_3

Summarized, the principles laid down in those eases are that in this circuit the trial court standard for interlocutory relief is the balance of hardship test. Four factors enter into the determination of whether to grant or to withhold interim injunctive relief: (a) plaintiff’s likelihood of success in the underlying dispute between the parties; (b) whether plaintiff will suffer irreparable injury if interim relief is denied; (c) the injury to defendant if an injunction is issued; and (d) the public interest. There is a correlation between the likelihood of plaintiff’s success and the probability of irreparable injury to him. If the likelihood of success is great, the need for showing the probability of irreparable harm is less. Conversely, if the likelihood of success is remote, there must be a strong showing of the probability of irreparable injury to justify issuance of the injunction. Of all the factors, the two most important are those of probable irreparable injury to the plaintiff if an injunction is not issued and likely harm to the defendant if an injunction is issued. If, upon weighing them, the balance is struck in favor of the plaintiff, a preliminary injunction should issue if, at least, grave or serious questions are presented.

Meiselman v. Paramount Film Distributing Corp., 180 F.2d 94, 97 (4th Cir. 1950). The authority of the district court judge to issue a preliminary injunction, especially a mandatory one should be sparingly exercised. Mandatory preliminary injunctions do not preserve the status quo and normally should be granted only in those circumstances when the exigencies of the situation demand such relief. I.C.C. v. Baltimore & Annapolis R. Co., 64 F.R.D. 337 (D.C.Md.1974). Furthermore, a preliminary injunction may not be availed of to secure a piecemeal trial. Meiselman v. Paramount Film Distributing Corp., 180 F.2d 94, 96 (4th Cir. 1950). Accord: Singleton v. Anson County Board of Education, supra. Generally, the proper administration of justice necessitates that the appellate court have the case completely before it in rendering a decision thereon. Our decisions in Blackwelder Furniture Co. v. Seilig Manufacturing Co., supra, and Fort Sumter Tours, Inc., v. Andrus, 564 F.2d 1119 (4th Cir. 1977) are controlling with respect to the trial court standard for interlocutory relief. “Summarized, the principles laid down in those eases are that in this circuit the trial court standard for interlocutory relief is the balance of hardship test.

2003-02-04

United States District Court for the Middle District of North Carolina

MooreFORCE, Inc. v. United States Department of Transportation

MooreFORCE, Inc. v. United States Department of Transportation, 243 F. Supp. 2d 425 (2003)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_4

If the likelihood of success is great, the need for showing the probability of irreparable harm is less. Conversely, if the likelihood of success is remote, there must be a strong showing of the probability of irreparable injury to justify issuance of the injunction.

If the balance “tips decidedly in favor of the plaintiff,” a preliminary injunction will be granted if the plaintiff raises substantial questions as to the merits of the underlying case. “If the likelihood of success is great, the need for showing the probability of irreparable harm is less.

1987-06-08

United States District Court for the District of Maryland

Hayes v. International Organization of Master, Mates & Pilots

Hayes v. International Organization of Master, Mates & Pilots, 670 F. Supp. 1330 (1987)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_2

grave or serious questions are presented.

See, e.g., Kupau v. Yamamoto, 455 F.Supp. 1084, 1090 (D.Haw.1978), aff'd, 622 F.2d 449 (9th Cir.1980) (District court issues injunction ordering union to install elected official in office since each day that he is deprived of rights, privileges and prerogatives of office constitutes irreparable injury to him and his constituents.) This injury is to be balanced against any harm to the defendant that an injunction would cause. In its legal memorandum, the defendant did not allege any specific harm that reinstatement of Mr. Hayes would cause. When asked by the court during the hearing to explain what harm might occur, defendant stated that the GEB followed the procedures set out in the Constitution in suspending Mr. Hayes from his office, and that it would irreparably harm the members if Mr. Hayes was “foisted back on the membership” after the GEB, a duly-elected body, had determined that he should be suspended. The court does not find defendant’s argument convincing. In essence, defendant argues that harm is caused to the Union whenever an injunction orders the Union to take an action different from that favored by the majority of the GEB. Clearly this argument goes too far. The court agrees with defendant that there may be unusual situations where the officer’s misconduct is so injurious to the union that the immediate removal of the official is called for in order to avoid irreparable harm to the union. However, the offenses with which Hayes is charged do not appear to the court to pose any immediate threat to the union. (See Exhibit L to Plaintiffs’ Motion) The defendant was unable to point out to the court any other harm that would result from Hayes’ reinstatement. It is sufficient that “

1984-07-10

United States District Court for the Eastern District of North Carolina

Johnson v. Halifax County

Johnson v. Halifax County, 594 F. Supp. 161 (1984)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_4

[i]f the likelihood of success is great, the need for showing the probability of irreparable harm is less.

primarily because of the interaction of substantial and persistent racial polarization in voting patterns (racial bloc voting) with a challenged electoral mechanism, a racial minority with distinctive group interests that are capable of aid or amelioration by government is effectively denied the political power to further those interests that numbers alone would presumptively [citation omitted] give it in a voting constituency not racially polarized in its voting behavior. At 355. In other words, absent racial bloc voting an at-large system would not ensure the consistent defeat of minority candidates or candidates associated with minority interests. 9. Halifax County’s at-large election system with residence districts also has several so-called “enhancing” features that make it more difficult for blacks to elect county commissioners of their choice. The county is geographically large, the use of residency districts, which operate like numbered-post requirements, precludes single-shot voting, and a majority-vote requirement applies in primary elections. See United States v. Marengo, supra, at 1570; Gingles, supra, at 363-364. 10. Thus in evaluating the totality of factual circumstances it should be emphasized that this lawsuit does not challenge at-large elections per se. Rather the lawsuit challenges an election system which results in an abridgment of the rights of black citizens to effectively participate in the political process. The election structure challenged is imposed in the context of a long history of racial discrimination with present day effects and is imposed also in the context of evidence tending to show racial bloc voting. The election structure contains at large provisions, as well as a majority vote requirement and residency districts, which preclude single-shot voting, all of which, in these circumstances, hinder effective minority participation. The evidence also supports a finding that the at-large election system maintained to date has diluted the voting strength of black citizens of Halifax County. Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982). 11. The court of appeals has recognized that “

1987-06-05

United States District Court for the Middle District of North Carolina

Burlington Industries, Inc. v. Edelman

Burlington Industries, Inc. v. Edelman, 666 F. Supp. 799 (1987)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_2

the two most important are those of probable irreparable injury to the plaintiff if an injunction is not issued and likely harm to the defendant if an injunction is issued. If, upon weighing them, the balance [of potential injury] is struck in favor of the plaintiff, a preliminary injunction should issue if, at least, grave or serious questions are presented.

In addition, the Samjens partners knew of Ammeen’s relationship with PaineWeb-ber during the period of time when Pai-neWebber was preparing its financial evaluations of Burlington and, therefore, knew of the clear opportunity Ammeen had to pass inside information. Furthermore, Ammeen actually discussed financial information concerning Burlington at a Dominion board meeting. Finally, both Dominion and Edelman viewed PaineWebber’s and Ammeen’s request for indemnification “unusual.”. Indeed, both PaineWebber and Ammeen refused to sign a written representation to the effect that they had neither received nor transmitted inside information. Based on the totality of this evidence, the court concludes that plaintiff has a substantial likelihood of proving that the members of Samjens acted with scienter. Edel-man’s and Dominion’s knowledge, combined with their documented suspicions about PaineWebber’s and Ammeen’s conduct, strongly suggests at least reckless action. And Ammeen’s vigorous pursuit of the tender offer despite his contractual and fiduciary duties manifests, at the least, reckless disregard for the lawfulness of his acts. III. THE PROPRIETY OF INJUNCTIVE RELIEF As previously stated, the court must evaluate the interplay of four factors in determining whether to grant a preliminary injunction: (1) the probable irreparable harm to the moving party if the preliminary injunction is not issued; (2) the probable harm to other parties or persons if the preliminary injunction is issued; (3) the likelihood of the moving party succeeding on the merits of the underlying claim; and (4) the public interest. Of these factors, “the two most important are those of probable irreparable injury to the plaintiff if an injunction is not issued and likely harm to the defendant if an injunction is issued.

1987-06-05

United States District Court for the Middle District of North Carolina

Burlington Industries, Inc. v. Edelman

Burlington Industries, Inc. v. Edelman, 666 F. Supp. 799 (1987)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_1

[t]here is a correlation between the likelihood of plaintiff’s success and the probability of irreparable injury to him. If the likelihood of success is great, the need for showing the probability of irreparable harm is less. Conversely, if the likelihood of success is remote, there must be a strong showing of the probability of irreparable injury to justify the issuance of the injunction.

Furthermore, “[t]here is a correlation between the likelihood of plaintiff’s success and the probability of irreparable injury to him.

1991-01-11

United States District Court for the District of South Carolina

Hazardous Waste Treatment Council v. South Carolina

Hazardous Waste Treatment Council v. South Carolina, 766 F. Supp. 431 (1991)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_4

If the likelihood of success on the merits is great, the need for showing the probability of irreparable harm is less. Conversely, if the likelihood of success is remote, there must be a strong showing of the probability of irreparable injury to justify the issuance of the injunction.

” “If the likelihood of success on the merits is great, the need for showing the probability of irreparable harm is less.

1990-09-27

United States District Court for the Eastern District of North Carolina

Guerra v. Scruggs

Guerra v. Scruggs, 747 F. Supp. 1160 (1990)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_2

if, at least, grave or serious questions are presented.

Section II, paragraph 2~2d of Army Regulation 635-200 provides that a serviceman is entitled to receive a hearing before an administrative elimination board only if he has accumulated 6 or more years of total active and reserve service on the date of initiation of recommendation for separation. 7. On August 1, 1990, plaintiff formally requested an administrative hearing of his case prior to being separated from active duty. On or around August 6, 1990, defendants denied such request and approved the release of plaintiff from active duty. Defendants ordered that plaintiff be discharged no later than August 24, 1990. 8. On August 15, 1990, plaintiff brought the present complaint in which he alleges that the procedures by which defendants are attempting to separate him from active duty with the United States Army amount to a violation of his due process rights pursuant to the Fifth Amendment of the U.S. Constitution and amount to a violation of his equal protection rights. DISCUSSION I. General Standard for a Preliminary Injunction In this circuit, the general standard by which a court must evaluate the propriety of a preliminary injunction is basically a consideration of those factors originally enunciated in Blackwelder Furniture Co. v. Seilig Manufacturing Co., Inc., 550 F.2d 189 (4th Cir.1977). The question of whether a preliminary injunction should issue turns upon an assessment of (1) plaintiffs likelihood of success on the merits; (2) the likelihood that plaintiff will suffer irreparable injury without an injunction; (3) the likely injury that defendant will sustain upon issuance of an injunction; and (4) the public interest. If the balance of hardships tips decidedly in the plaintiffs favor, an injunction preserving the status quo should issue “

1989-09-22

United States District Court for the Eastern District of North Carolina

Federal Deposit Insurance v. British-American Corp.

Federal Deposit Insurance v. British-American Corp., 726 F. Supp. 622 (1989)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_2

[i]f ... the balance is struck in favor of plaintiff[s], a preliminary injunction should issue if, at least, grave or serious questions are presented.

Carson v. Oates, 64 N.C. 115, 117-18 (1870). In this case, plaintiffs allege that the $2 million was transferred to BAICL pursuant to a contract for sale of BAICL’s Fiji branch. Plaintiffs contend the contract lacked consideration. Defendants have filed Rule 12 motions but have not yet answered the allegations of the complaint. Defendants’ position for purposes of the argument on this motion is that the transfer was supported by valuable consideration and that the purchaser received full value. The present ownership of the $2 million funds which comprised the purchase price for BAICL’s Fiji branch is in dispute, and the resolution is inappropriate for supplemental proceedings. Plaintiffs’ motion for supplemental proceedings will be denied without prejudice to again being considered should plaintiffs prevail on their other claims. D. PLAINTIFFS’ MOTION FOR INJUNCTIVE RELIEF. In their complaint, plaintiffs requested injunctive relief enjoining defendants BAC and BAICL from conveying assets other than in the ordinary course of business. Plaintiffs also requested that BAICL be enjoined from transferring or impairing the common stock and other interests in BAC, from liquidating the assets of BAC or reducing the net worth of BAC to an amount less than $6 million. The Fourth Circuit has set forth four factors to be considered in determining whether preliminary injunctive relief is available. The court must consider: (1) the likelihood that plaintiff will succeed on the merits; (2) the irreparable injury plaintiff will suffer if interim relief is not granted; (3) the injury to defendant if an injunction is issued; and (4) the public interest. Upon weighing these factors, “[i]f... the balance is struck in favor of plaintiff[s], a preliminary injunction should issue if, at least, grave or serious questions are presented.

1982-04-01

United States District Court for the Eastern District of North Carolina

Price v. Block

Price v. Block, 535 F. Supp. 1239 (1982)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_2

If upon weighing them the balance is struck in favor of the plaintiff, a preliminary injunction should issue if, at least, grave or serious questions are presented.

Preliminary injunctions, especially mandatory ones, do not preserve the status quo and normally should be granted only in those circumstances when the exigencies of the situation demand such relief. Wetzel v. Edwards, 635 F.2d 283 (4th Cir. 1980); I.C.C. v. Baltimore & Annapolis R. Co., 64 F.R.D. 337 (D.C.Md.1974). In this Circuit, the trial court standard for interlocutory injunctive relief is the balance-of-hardship test. Sinclair Refining Co. v. Midland Oil Co., supra. Four factors enter into the determination of whether to grant or to withhold interim injunctive relief: (a) whether plaintiff will suffer irreparable injury if interim relief is denied; (b) the injury to defendant if an injunction is issued; (c) plaintiff’s likelihood of success in the underlying dispute between the parties; and (d) the public.interest. Wetzel v. Edwards, supra. The decision to grant or deny a preliminary injunction depends upon a “flexible interplay” among all these factors. All four are intertwined and each affects in degree all the others. Blackwelder Furniture Co. v. Seilig Manufacturing Co., supra. Judge Winter in North Carolina State Ports Authority v. Dart Containerline Co., Ltd., 592 F.2d 749 (4th Cir. 1979), aptly noted this interplay: There is a correlation between the likelihood of plaintiff’s success and the probability of irreparable injury to him. If the likelihood of success is great, the need for showing the probability of irreparable harm is less. Conversely, if the likelihood of success is remote, there must be a strong showing of the probability of irreparable injury to justify issuance of the injunction. Id., at 750. Although this Court will properly consider all four factors, it will emphasize the two most important upon which the balance-of-hardship test is principled — the probable irreparable injury to the plaintiff if an injunction is not issued against the likely harm to the defendant if an injunction is issued. “

1983-04-01

United States Court of Appeals for the Fourth Circuit

Jones v. Board of Governors of University of North Carolina

Jones v. Board of Governors of University of North Carolina, 704 F.2d 713 (1983)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_2

if, at least, grave or serious questions are presented.

The Vice-Chancellor for Academic Affairs, upon delegation from the Chancellor, reviewed the transcript of the proceedings before the Hearing Panel, as well as memoranda submitted by counsel, and reached a contrary determination that Jones was guilty of the charge. He therefore adopted the sanction recommended originally by the Student Court: that Jones be given a failing grade for the course and be placed on disciplinary probation for one semester. As a consequence, the University cancelled Jones’s registration in the College of Nursing for the spring 1983 semester, because a passing grade in the course at issue was a prerequisite to all other courses in the College. Jones then filed suit under 42 U.S.C. § 1983 in federal district court, alleging that the University’s handling of her case had violated her rights to procedural due process. Pending resolution of this suit on the merits, the district court granted Jones’s motion for a preliminary injunction and ordered that she be reinstated as a student in good standing in the College of Nursing. On appeal, the University challenges the issuance of a preliminary injunction as an abuse of the district court’s discretion. II The standards by which we evaluate the propriety of this preliminary injunction are basically those enunciated in Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir.1977). The question of whether a preliminary injunction should issue turns upon assessment of (1) plaintiff’s likelihood of success on the merits, (2) the likelihood that plaintiff will suffer irreparable injury without an injunction, (3) the likely injury that defendant will sustain upon issuance of an injunction, and (4) the public interest. If the balance of hardships tips decidedly in the plaintiff’s favor, an injunction preserving the status quo should issue “

1991-12-24

United States Court of Appeals for the Fourth Circuit

Direx Israel, Ltd. v. Breakthrough Medical Corp.

Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802 (1991)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_3

likelihood of irreparable harm to the plaintiff

The “

1990-05-15

United States District Court for the Eastern District of Virginia

Railway Labor Executives’ Ass'n v. Wheeling Acquisition Corp.

Railway Labor Executives’ Ass'n v. Wheeling Acquisition Corp., 736 F. Supp. 1397 (1990)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_0

in the service of a carrier

Thus, the Court concludes that Congress’ explicit inclusion of non-carriers solely for purposes of § 11301 is no authority for the proposition that Wheeling is a rail carrier subject to the full panoply of RLA bargaining duties and obligations. Even assuming, arguendo, that Wheeling is a “carrier,” plaintiffs’ claim still fails. Simply put, Wheeling currently has no “employees” that could subject it to the RLA’s bargaining requirements. And, it is well settled that employment applicants are not “employees” under the RLA. Section 1, Fifth provides: The term “employee” as used herein includes every person in the service of a carrier... who performs any work defined as that of an employee. 45 U.S.C. § 151, Fifth. Again, the use of the present tense is significant and dispositive. RLA rights are conferred only on “employees” of a “carrier” who currently perform work for that carrier. Nelson v. Piedmont Aviation, Inc., 750 F.2d 1234 (4th Cir.), cert. denied, 471 U.S. 1116, 105 S.Ct. 2358, 86 L.Ed.2d 259 (1985); Airline Pilots Ass’n Internat'l v. United Air Lines, Inc., 802 F.2d 886 (7th Cir.1986). Applicants for employment, even to a carrier, are not “employees” with RLA rights under Section 1, First and Fifth. Judge Wilkinson put it succinctly, Nothing in the statutory language or the legislative history of the Railway Labor Act... supports [the] contention that applicants for employment are covered. The purpose of the statute is to establish the mechanics for collective bargaining between interstate carriers and their employees through freely selected representative of both parties... At the time of his application to Piedmont, appellant was not “

1990-07-10

United States District Court for the Eastern District of Virginia

Proffitt v. United States

Proffitt v. United States, 758 F. Supp. 342 (1990)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_5

‘there must be a strong showing of the probability of irreparable injury to justify the issuance of the injunction.’

See Smith v. United States, 618 F.2d 507, 510 (8th Cir.1980) (citations omitted). The allegations asserted in claim 4, therefore, must be brought in a separate petition pursuant to 28 U.S.C. § 2241. Claim 4 will be DISMISSED WITHOUT PREJUDICE. TEMPORARY RESTRAINING ORDER The Fourth Circuit has adopted the “balance of hardship” test. See South Carolina Dept. of Wildlife & Marine Sources v. Marsh, 866 F.2d 97, 99 (4th Cir.1989). Under the balance of hardship test, the district court must consider: (1) the likelihood of irreparable harm to a plaintiff without an injunction, (2) the likelihood of harm to the defendant with an injunction, (3) the plaintiff’s likelihood of success on the merits, and (4) the public interest. If plaintiff’s likelihood of success on the merits is remote, “ ‘there must be a strong showing of the probability of irreparable injury to justify the issuance of the injunction.

1983-09-30

United States District Court for the District of Maryland

Bethesda Ford, Inc. v. Ford Motor Co.

Bethesda Ford, Inc. v. Ford Motor Co., 572 F. Supp. 623 (1983)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_6

likelihood of success on the merits

Four factors enter into the determination of whether to grant or withhold interim relief: (a) plaintiff’s likelihood of success in the underlying dispute between the parties; (b) whether plaintiff will suffer irreparable injury if interim relief is denied; (c) the injury to defendant if an injunction is issued; and (d) the public interest. North Carolina State Ports v. Dart Containerline, 592 F.2d 749, 750 (4th Cir.1979). The North Carolina State Ports court also addressed the appropriate weight to be given to these four factors: There is a correlation between the likelihood of plaintiff’s success and the probability of irreparable injury to him. If the likelihood of success is great, the need for showing the probability of irreparable harm is less. Conversely, if the likelihood of success is remote, there must be a strong showing of the probability of irreparable injury to justify issuance of the injunction. Of all the factors, the two most important are those of probable irreparable injury to the plaintiff if an injunction is not issued and likely harm to the defendant if an injunction is issued. If, upon weighing them, the balance is struck in favor of plaintiff, a preliminary injunction should issue if, at least, grave or serious questions are presented. No “grave or serious” issue exists in the present motion. Bethesda Ford would have the burden of proof in seeking a permanent injunction, and the MVA findings would be accorded collateral estoppel effect at that time under the standards reviewed previously. The present motion therefore presents the rare situation where the “

1979-05-23

United States District Court for the Eastern District of North Carolina

North Carolina v. Department of Health, Education & Welfare

North Carolina v. Department of Health, Education & Welfare, 480 F. Supp. 929 (1979)

1979-02-15

United States Court of Appeals for the Fourth Circuit

North Carolina State Ports Authority v. Dart Containerline Co.

North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749 (1979)

53122_1

There is a correlation between the likelihood of plaintiff’s success and the probability of irreparable injury to him. If the likelihood of success is great, the need for showing the probability of irreparable harm is less. Conversely, if the likelihood of success is remote, there must be a strong showing of the probability of irreparable injury to justify issuance of the injunction. Of all the factors, the two most important are those of probable irreparable injury to the plaintiff if an injunction is not issued and likely harm to the defendant if an injunction is issued. If, upon weighing them, the balance is struck in favor of plaintiff, a preliminary injunction should issue if, at least, grave or serious questions are presented.

Finally, due to the vast number of individual programs and grants that the administrative judge will have to examine as to Title VI compliance, an agency decision favorable to plaintiffs in whole or in part could obviate a large portion of the instant controversy. Even if UNC achieved only minimal success, the issues and correspond ing programs would be lessened for purposes of judicial review. Since a court’s jurisdiction is not ousted but merely postponed when primary jurisdiction is invoked, United States v. Philadelphia National Bank, 374 U.S. 321, 353, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963), a stay of the judicial proceedings — and other appropriate in term relief — can be granted until the agency action has run its course. See United States v. Michigan National Corporation, 419 U.S. 1, 5-6, 95 S.Ct. 10, 42 L.Ed.2d 1 (1974), and cf., Otter Tail Power Company v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359, rehearing denied, 411 U.S. 910, 93 S.Ct. 1523, 36 L.Ed.2d 201 (1973). This we propose to do as more fully explicated infra. II. INJUNCTIVE RELIEF Any inquiry into the propriety of preliminary injunctive relief must center on the balance-of-hardship test enunciated in Blackwelder Furniture Company v. Seilig Manufacturing Company, 550 F.2d 189 (4th Cir. 1977), and its progeny, Fort Sumter Tours, Inc. v. Andrus, 564 F.2d 1119 (4th Cir. 1977), and North Carolina State Ports v. Dart Containerline, 592 F.2d 749 (4th Cir. 1979). Four factors are determinative: (a) plaintiff’s likelihood of success in the underlying dispute between the parties; (b) whether plaintiff will suffer irreparable injury if interim relief is denied; (c) the injury to defendant if an injunction is issued; and (d) the public interest. “There is a correlation between the likelihood of plaintiff’s success and the probability of irreparable injury to him.

1966-02-11

United States District Court for the Northern District of Illinois

E. I. duPont de Nemours & Co. v. Union Carbide Corp.

E. I. duPont de Nemours & Co. v. Union Carbide Corp., 250 F. Supp. 816 (1966)

1920-06-07

Supreme Court of the United States

Beidler v. United States

Beidler v. United States, 253 U.S. 447 (1920)

189337_0

in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains * * * to make and use the same.

” Indeed, prior to the enactment of Section 120 in 1952, a long line of case law held that while “continuation” applications were occasionally entitled to an earlier effective filing date, Godfrey v. Eames, 68 U.S. 317, 17 L.Ed. 684 (1863), the original application must contain sufficient disclosure to support the claims made therein. See Philip A. Hunt Co. v. Mallinckrodt Chemical Works, (2d Cir., 1949) 177 F.2d 583; Van Der Horst Corp. v. Chromium Corp. (D.C.N.Y., 1951) 98 F.Supp. 412, 429-430, aff’d., (2d Cir., 1952) 197 F.2d 791. With the enactment of the Patent Code of 1952, these decisions were codified in Section 120, which, as alluded to above, demanded that the prior application meet the requirements of Section 112 as to sufficiency of disclosure, and that the second application cover an invention disclosed in the original. Initially, it is clear that under Judge Mercer’s decision, plaintiff failed to meet the full disclosure requirements of Section 112, in that an “unworkable” process cannot be said to have been described “

1930-02-11

United States Court of Appeals for the Eighth Circuit

Cleveland Gas Burner & Appliance Co. v. American Heater Corp.

Cleveland Gas Burner & Appliance Co. v. American Heater Corp., 38 F.2d 760 (1930)

1920-06-07

Supreme Court of the United States

Beidler v. United States

Beidler v. United States, 253 U.S. 447 (1920)

189337_0

in such full, clear, concise and exact

It is claimed that the patented arrangement produces a proper freedom from backfiring under a sliding scale of normal gas pressure. It is shown in evidence, however, that a different construction is necessary for different pressures, more particularly because of the distinction between natural and artifieal gas. There is nothing in the patent which gives definite instruction as to how a fixed and dependable result can be secured. Given all the old elements, operating in combination in their ordinary manner, as we find them, and the result aimed at can be attained only by a series" of experiments in any given ease; but sueh mere experimentation, or mechanical ingenuity, has never been accepted as invention, unless, at least, it has resulted not only in a new and useful result, but also either in a process or a machine that operates in a definite manner in accordance with a formula disclosed by the patent. The patent fails to satisfy the requirements of section 4888, Rev. St. (35 USCA § 33), which provides that the application shall contain a written description of the manner and process of making and using the invention “

2008-05-06

United States Court of Appeals for the Armed Forces

United States v. Dacus

United States v. Dacus, 66 M.J. 235 (2008)

1997-09-03

United States Court of Appeals for the Armed Forces

United States v. Klauck

United States v. Klauck, 47 M.J. 24 (1997)

100834_0

means likely to produce death or grievous bodily harm

Id. Dacus entered pleas of guilty to two specifications of “assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm” under Article 128(b)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928(b)(1) (2000). The Manual for Courts-Martial lists four elements for this offense: (i) That the accused attempted to do, offered to do, or did bodily harm to a certain person; (ii) That the accused did so with a certain weapon, means, or force; (iii) That the attempt, offer, or bodily harm was done with unlawful force or violence; and (iv) That the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm. Manual for Courts-Martial, United States pt. IV, para. 54.b.(4)(a) (2005 ed.) (MCM). Dacus’s challenge focuses on the fourth element. He argues that certain portions of his testimony and the testimony of Dr. Wallace substantially conflict with the fourth element’s requirement that the means was used in a manner likely to produce death or grievous bodily harm. The MCM provides an explanation of the word “likely” in the context of the aggravated assault offense: ‘When the natural and probable consequence of a particular use of any means or force would be death or grievous bodily harm, it may be inferred that the means or force is ‘likely’ to produce that result.” We further discussed the fourth element in United States v. Weatherspoon: The standard for determining whether an instrumentality is a “

2008-05-06

United States Court of Appeals for the Armed Forces

United States v. Dacus

United States v. Dacus, 66 M.J. 235 (2008)

1997-09-03

United States Court of Appeals for the Armed Forces

United States v. Klauck

United States v. Klauck, 47 M.J. 24 (1997)

100834_2

‘more than merely a fanciful, speculative or remote possibility.’

We further discussed the fourth element in United States v. Weatherspoon: The standard for determining whether an instrumentality is a “means likely to produce death or grievous bodily harm” is the same in all aggravated assault eases under Article 128(b)(1). The concept of likelihood has two prongs: (1) the risk of harm and (2) the magnitude of the harm. The likelihood of death or grievous bodily harm is determined by measuring both prongs, not just the statistical risk of harm. Where the magnitude of the harm is great, there may be an aggravated assault, even though the risk of harm is statistically low. In explaining the first prong, we relied upon the “risk of harm” definition developed in several HIV assault cases and stated that the “risk of harm” need only be “ ‘more than merely a fanciful, speculative or remote possibility.

2008-05-06

United States Court of Appeals for the Armed Forces

United States v. Dacus

United States v. Dacus, 66 M.J. 235 (2008)

1997-09-03

United States Court of Appeals for the Armed Forces

United States v. Klauck

United States v. Klauck, 47 M.J. 24 (1997)

100834_2

probability of infection need only be ‘more than merely a fanciful, speculative, or remote possibility.’

Relying on language from an earlier HIV assault case, we concluded in Joseph that the “probability of infection need only be ‘more than merely a fanciful, speculative, or remote possibility.

2008-05-06

United States Court of Appeals for the Armed Forces

United States v. Dacus

United States v. Dacus, 66 M.J. 235 (2008)

1997-09-03

United States Court of Appeals for the Armed Forces

United States v. Klauck

United States v. Klauck, 47 M.J. 24 (1997)

100834_2

more than merely a fanciful, speculative, or remote possibility.

Turning now to the first prong, we address “risk of harm” and consider whether risk of HIV infection is “

2008-05-06

United States Court of Appeals for the Armed Forces

United States v. Dacus

United States v. Dacus, 66 M.J. 235 (2008)

1997-09-03

United States Court of Appeals for the Armed Forces

United States v. Klauck

United States v. Klauck, 47 M.J. 24 (1997)

100834_2

more than merely a fanciful, speculative, or remote possibility

49 M.J. at 211. While the risk here may have been low, the magnitude of harm was significant. As such, we conclude that neither Dacus’s nor Dr. Wallace’s testimony was in substantial conflict with the “risk of harm” prong. DECISION The decision of the United States Army Court of Criminal Appeals is affirmed. 1 . Dr. Wallace explained that "viral load” is a measure of how much HIV virus is in the blood. He testified that while Dacus was infected with HIV, his viral load was so low that it was not detectable with existing technology. 2 . Dr. Wallace testified that while this was a controversial political and medical issue, he thought the best study suggested that using a condom would reduce the risk of transmission by eighty to ninety-five percent. Neither party has asserted or argued that this "risk of harm” standard of "

2006-12-20

United States Coast Guard Court of Criminal Appeals

United States v. Upham

United States v. Upham, 64 M.J. 547 (2006)

1997-09-03

United States Court of Appeals for the Armed Forces

United States v. Klauck

United States v. Klauck, 47 M.J. 24 (1997)

100834_0

means likely to result in death or grievous bodily harm

” During the providence inquiry, the military judge informed Appellant that the maximum sentence that could be adjudged for this offense was confinement for six months, forfeiture of all pay and allowances, and dismissal. (R. at 79-80.) Before sentencing, the military judge declared that he intended to treat the two charges as multiplicious for sentencing, and that the maximum sentence was dismissal, three years confinement, and forfeiture of all pay and allowances. (R. at 727.) He instructed the court accordingly. (R. at 864.) The court sentenced Appellant to forfeit all pay and allowances, to be confined for nine months, and to be dismissed from the Coast Guard. Aggravated Assault Appellant argues that whether uninformed, unprotected sexual intercourse while HIV-positive constitutes an “offensive touching,” and whether it constitutes a “

2015-02-23

United States Court of Appeals for the Armed Forces

United States v. Gutierrez

United States v. Gutierrez, 74 M.J. 61 (2015)

1997-09-03

United States Court of Appeals for the Armed Forces

United States v. Klauck

United States v. Klauck, 47 M.J. 24 (1997)

100834_0

likely to produce death or grievous bodily harm.

” Applying a plain English definition of “likely,” as well as this Court’s precedent regarding aggravated assault outside the context of HIV, testimony that the means used to commit the assault had a l-in-500 chance of producing death or grievous bodily harm is not legally sufficient to meet the element of “

2015-02-23

United States Court of Appeals for the Armed Forces

United States v. Gutierrez

United States v. Gutierrez, 74 M.J. 61 (2015)

1997-09-03

United States Court of Appeals for the Armed Forces

United States v. Klauck

United States v. Klauck, 47 M.J. 24 (1997)

100834_2

the question is not the statistical probability of HIV invading the victim’s body, but rather the likelihood of the virus causing death or serious bodily harm if it invades the victim’s body. The probability of infection need only be more than merely a fanciful, speculative, or remote possibility.

” The Government now argues that we should affirm the conviction for aggravated assault under Joseph, because according to that precedent, “the question is not the statistical probability of HIV invading the victim’s body, but rather the likelihood of the virus causing death or serious bodily harm if it invades the victim’s body.

2015-02-23

United States Court of Appeals for the Armed Forces

United States v. Gutierrez

United States v. Gutierrez, 74 M.J. 61 (2015)

1997-09-03

United States Court of Appeals for the Armed Forces

United States v. Klauck

United States v. Klauck, 47 M.J. 24 (1997)

100834_2

more than merely a fanciful, speculative, or remote possibility

”). Second, Joseph adopted a definition of “likely” that appears to be sui generis to HIV cases and is not derived from the statute itself. But nowhere in the UCMJ, in the dictionary, or in case law, is “likely” defined as “

2015-02-23

United States Court of Appeals for the Armed Forces

United States v. Gutierrez

United States v. Gutierrez, 74 M.J. 61 (2015)

1997-09-03

United States Court of Appeals for the Armed Forces

United States v. Klauck

United States v. Klauck, 47 M.J. 24 (1997)

100834_3

[t]he fact that a male uses a condom during sexual intercourse is not a defense to [aggravated] assault.

Jones v. Helms, 452 U.S. 412, 424 n. 23, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981) (quoting Cong. Globe, 39th Cong., 1st Sess. 2766 (1866) (statement of Sen. Howard)). Thus, “likely” must mean the same thing in an Article 128, UCMJ, prosecution for an aggravated assault involving HIV transmission as it does in any other prosecution under the statute. In determining whether grievous bodily harm is likely, therefore, one conception is whether grievous bodily harm is the “ ‘natural and probable consequence’ ” of an act. Weatherspoon, 49 M.J. at 211 (quoting Manual for Courts-Martial, United States pt. IV, para. 54c(4)(a)(ii) (MCM)). The ultimate standard, however, remains whether&emdash;in plain English&emdash;the charged conduct was “likely” to bring about grievous bodily harm. As related to this case, the question is: was grievous bodily harm the likely consequence of Appellant’s sexual activity? As to unprotected oral sex, the expert testimony in this case is that the risk of HIV transmission was “almost zero.” According to Dr. Sweet’s testimony, that risk does “[n]ot really” change in the ease of ejaculation. There should be no question that a risk of “almost zero” does not clear any reasonable threshold of probability, including under the rubric this Court has heretofore applied in HIV-exposure cases, which required that the risk must be more than “fanciful, speculative, or remote.” Joseph, 37 M.J. at 397 (citation and internal quotation marks omitted). Appellant’s conviction for aggravated assault, to wit, engaging in unprotected oral sex without disclosing his HIV-positive status, is legally insufficient because no rational trier of fact could conclude that his conduct was likely to cause grievous bodily harm. In the case of protected vaginal sex, we have previously concluded that “

1999-11-23

United States District Court for the Western District of Louisiana

Trimble v. City of New Iberia

Trimble v. City of New Iberia, 73 F. Supp. 2d 659 (1999)

1998-05-13

United States Court of Appeals for the Eighth Circuit

Argello v. City of Lincoln

Argello v. City of Lincoln, 143 F.3d 1152 (1998)

268824_1

There is a distinct difference between the offer to tell a fortune (‘I’ll tell your fortune for twenty dollars.’), which is commercial speech, and the actual telling of the fortune (T see in your future ...’), which is not.

Id. Where the speaker’s speech does not propose a commercial transaction between itself and its audience, the speech is not commercial. Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 340, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986). Here, the challenged speech of the plaintiffs is not commercial speech. “There is a distinct difference between the offer to tell a fortune (‘I’ll tell your fortune for twenty dollars.

2011-02-25

United States Court of Appeals for the District of Columbia

Edwards v. District of Columbia

Edwards v. District of Columbia, 765 F. Supp. 2d 3 (2011)

1998-05-13

United States Court of Appeals for the Eighth Circuit

Argello v. City of Lincoln

Argello v. City of Lincoln, 143 F.3d 1152 (1998)

268824_1

I’ll tell your fortune for twenty dollars.

Indeed, the Eighth Circuit, in the context of a First Amendment challenge to a law prohibiting for-profit fortune-telling, rejected the very same argument that defendant makes here: The speech itself, fortunetelling, is not commercial simply because someone pays for it. The speech covered by the ordinance, for the most part, does not simply propose a commercial transaction. Rather, it is the transaction. There is a distinct difference between the offer to tell a fortune (“

2011-09-30

United States District Court for the Eastern District of Virginia

Moore-King v. County of Chesterfield

Moore-King v. County of Chesterfield, 819 F. Supp. 2d 604 (2011)

1998-05-13

United States Court of Appeals for the Eighth Circuit

Argello v. City of Lincoln

Argello v. City of Lincoln, 143 F.3d 1152 (1998)

268824_2

The speech itself, fortunetelling, is not commercial simply because someone pays for it.... [The speech] is the transaction. The speech itself is what the ‘client’ is paying for.

But see Argollo v. City of Lincoln, 143 F.3d 1152 (8th Cir.1998) (“The speech itself, fortunetelling, is not commercial simply because someone pays for it....

2012-07-12

United States District Court for the Western District of Louisiana

Adams v. City of Alexandria

Adams v. City of Alexandria, 878 F. Supp. 2d 685 (2012)

1998-05-13

United States Court of Appeals for the Eighth Circuit

Argello v. City of Lincoln

Argello v. City of Lincoln, 143 F.3d 1152 (1998)

268824_1

Here, the challenged speech of the plaintiffs is not commercial speech. Just because someone may pay a fee for the plaintiffs’ services, the telling of fortunes and the giving of spiritual advice does not propose a commercial transaction. ‘There is a distinct difference between the offer to tell a fortune (“I’ll tell your fortune for twenty dollars.

City brief, p. 4. This attempt at “alchemy” by the City to turn content based speech into commercial speech just doesn’t shine. Indeed, if the City’s reasoning were true, then all speech made by a business would be commercial speech and thus subject to government limitations, because everything a business does, to apply the City’s reasoning serves to advertise. “Here, the challenged speech of the plaintiffs is not commercial speech.

2012-07-12

United States District Court for the Western District of Louisiana

Adams v. City of Alexandria

Adams v. City of Alexandria, 878 F. Supp. 2d 685 (2012)

1998-05-13

United States Court of Appeals for the Eighth Circuit

Argello v. City of Lincoln

Argello v. City of Lincoln, 143 F.3d 1152 (1998)

268824_0

I see in your future ...

”), which is commercial speech, and the actual telling of the fortune (“I see in your future... ”), which is not.

2014-03-26

United States Bankruptcy Court for the Northern District of Georgia

In re Ross

In re Ross, 508 B.R. 777 (2014)

2010-10-07

United States Bankruptcy Court for the Western District of Virginia

In re Frye

In re Frye, 440 B.R. 685 (2010)

3782833_0

son, daughter, stepchild, foster child, or a descendant of any of them ...

First, a number of courts have adopted the definition used by the U.S. Census Bureau, which defines a “household” by the number of residents in a structure, without regard to the economic relationship between those residents. Id.; see, e.g., In re Epperson, 409 B.R. 503, 507 (Bankr.D.Ariz.2009); In re Bostwick, 406 B.R. 867, 872 (Bankr.D.Minn.2009); contra, In re Jewell, 365 B.R. 796 (Bankr.S.D.Ohio 2007) (holding the U.S. Census Bureau’s definition of “household” is inconsistent with the purpose of reporting household size in a bankruptcy context— i.e. to paint a picture of Debtor’s economic status). Some courts have adopted a definition of “household” based upon the In ternal Revenue Service’s definition of “dependents.” IRS Publication 501 sets forth a six-factor test for determining whether an individual is a “dependent”: (1) a relationship test, which requires that the potential dependent be “son, daughter, stepchild, foster child, or a descendant of any of them... ”; (2) an age test, which requires that the person be under 19 years of age, under 24 years of age and a full-time student, or any age if permanently disabled; (3) a residency test, which would require that the person lived with Debtor for more than half of the year; (4) a financial support test, which would require that the child not “have provided more than half of his or her own support for the year”; (5) a joint return test, which disallows anyone filing a joint return from being declared as a dependent on another’s return; and (6) a special test for a dependent child of more than one person.

2014-03-26

United States Bankruptcy Court for the Northern District of Georgia

In re Ross

In re Ross, 508 B.R. 777 (2014)

2010-10-07

United States Bankruptcy Court for the Western District of Virginia

In re Frye

In re Frye, 440 B.R. 685 (2010)

3782833_3

have provided more than half of his or her own support for the year

IRS Publication 501 sets forth a six-factor test for determining whether an individual is a “dependent”: (1) a relationship test, which requires that the potential dependent be “son, daughter, stepchild, foster child, or a descendant of any of them... ”; (2) an age test, which requires that the person be under 19 years of age, under 24 years of age and a full-time student, or any age if permanently disabled; (3) a residency test, which would require that the person lived with Debtor for more than half of the year; (4) a financial support test, which would require that the child not “

2014-01-09

United States Bankruptcy Court for the Northern District of Ohio

In re Skiles

In re Skiles, 504 B.R. 871 (2014)

2010-10-07

United States Bankruptcy Court for the Western District of Virginia

In re Frye

In re Frye, 440 B.R. 685 (2010)

3782833_1

(1) a relationship test; (2) an age test; (3) a residency test; (4) a financial support test; (5) a joint return test; and (6) a special test for dependent children of more than one person.

In re Napier, 2006 WL 4128358, at *1. These courts also note that the legislative history indicates that § 1325(b)(3) was not intended to alter or expand the scope of the “means test,” a result that would occur if a broad definition of “household” is adopted. Id. at *2. The IRS has adopted a dependency test requiring an individual to satisfy each of the following requirements in order to qualify as an IRS tax dependent: “

2011-03-10

United States Bankruptcy Court for the Eastern District of Virginia

In re Robinson

In re Robinson, 449 B.R. 473 (2011)

2010-10-07

United States Bankruptcy Court for the Western District of Virginia

In re Frye

In re Frye, 440 B.R. 685 (2010)

3782833_2

The Court ... adopts the position that in order to determine whether a child qualifies as a dependent ... a court should look at the IRS dependency test as stated in IRS Publication 501.

In re Law, No. 07-40863, 2008 WL 1867971, at *5 (Bankr.D.Kan. Apr.24, 2008). Cf. In re Frye, 440 B.R. 685, 687. (Bankr.W.D.Va.2010) (“The Court... adopts the position that in order to determine whether a child qualifies as a dependent... a court should look at the IRS dependency test as stated in IRS Publication 501.

2007-03-26

United States Bankruptcy Court for the Northern District of West Virginia

Bayer Employees Federal Credit Union v. Sapp (In re Sapp)

Bayer Employees Federal Credit Union v. Sapp (In re Sapp), 364 B.R. 618 (2007)

1988-07-12

United States Bankruptcy Court for the Middle District of Florida

Chase Manhattan Financial Services, Inc. v. Warmack (In re Warmack)

Chase Manhattan Financial Services, Inc. v. Warmack (In re Warmack), 88 B.R. 399 (1988)

11931874_0

The explanation of the Debtor, Mr. Warmack, that the loan application was filled out by an officer of Chase and he merely signed the same is unacceptable as he is certainly responsible for the statements contained in the loan application by virtue of the fact that with his signature he adopted it and warranted that the facts stated in the application were correct.

”); In re Warmack, 88 B.R. 399, 402 (Bankr.M.D.Fla.1988) (“

2001-02-15

United States Court of Appeals for the Ninth Circuit

United States v. Ellis

United States v. Ellis, 241 F.3d 1096 (2001)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_4

Moit argued that the evidence established his father possessed the guns as keepsakes, solely for collection purposes, and that Moit kept the guns in his 'house for his father.... We reject the government’s argument that one who possesses a gun collection owned by another can never receive a section 2K2.1(b)(2) decrease.

”); United States v. Moit, 100 F.3d 605, 606-07 (8th Cir.1996) (“Moit argued that the evidence established his father possessed the guns as keepsakes, solely for collection purposes, and that Moit kept the guns in his 'house for his father....

2001-11-05

United States Court of Appeals for the Eighth Circuit

United States v. Ramirez-Rios

United States v. Ramirez-Rios, 270 F.3d 1185 (2001)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_3

the number of and type of firearms, the amount and type of ammunition, the location and circumstances of possession and actual use, the nature of defendant’s criminal history, ... and the extent to which the possession was restricted by local law.

The district court held that the § 2K2.1(b)(2) reduction did not apply for two reasons. First, Ramirez-Rios’s hunting was not lawful; the court found that Ramirez-Rios did not have a required deer hunting tag, even though he did have a general hunting license. Second, the court found that the exception did not apply because the.22 caliber handgun was held for protection purposes, not for a lawful sporting purpose. After making these findings, the court sentenced Ramirez-Rios to eighteen months imprison ment, two to three years supervised release, and a special assessment of $200. II. Discussion We review interpretations of the Sentencing Guidelines de novo, see United States v. Waggoner, 103 F.3d 724, 726 (8th Cir.1997), and the district court’s findings of fact under the clearly erroneous standard. See United States v. Kissinger, 986 F.2d 1244, 1245 (8th Cir.1993). The defendant has the burden of proving that a reduction in the offense level should apply. See United States v. Dinges, 917 F.2d 1133, 1135 (8th Cir.1990). Section 2K2.1(b)(2) of the Federal Sentencing Guidelines requires courts to reduce the base offense level of a sentence for being a felon in possession if the defendant possessed all of the weapons for a lawful sporting purpose. U.S.S.G. § 2K2.1(b)(2). In determining whether § 2K2.1(b)(2) applies, the focus of the inquiry is the “intended lawful use” as determined by the surrounding circumstances. The relevant circumstances include “the number of and type of firearms, the amount and type of ammunition, the location and circumstances of possession and actual use, the nature of defendant’s criminal history,... and the extent to which the possession was restricted by local law.

2001-11-05

United States Court of Appeals for the Eighth Circuit

United States v. Ramirez-Rios

United States v. Ramirez-Rios, 270 F.3d 1185 (2001)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_1

if the defendant ... possessed all ammunition and firearms solely for lawful sporting purposes or collection.

Here, however, Ramirez-Rios’s wife bought and kept the gun for protection purposes. A defendant who possesses a handgun for personal protection is not entitled to a § 2K2.1(b)(2) reduction. The plain language of § 2K2.1(b)(2) states that the provision only applies "if the defendant... possessed all ammunition and firearms solely for lawful sporting purposes or collection."

2008-12-19

United States District Court for the Western District of Virginia

United States v. Skeens

United States v. Skeens, 589 F. Supp. 2d 757 (2008)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_1

[i]f the defendant ... possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition. ...

While serving an arrest warrant on the defendant at his home in an unrelated matter, officers of the local Sheriffs Department observed firearms in the home, as well as a gun safe. Knowing that the defendant had previously been convicted of a felony, the officers obtained a search warrant and seized forty-eight firearms. The officers found some of the guns in the locked gun safe, located in the defendant’s hobby workroom on the first floor. In that same room but outside the safe, the officers discovered five long guns and ammunition reloading equipment, including gunpowder, and a locked gun cabinet on the second floor contained other firearms. The search also revealed a loaded.32-caliber revolver kept in a bedside drawer in the Skeens’ joint bedroom. All of the firearms seized from the home were those that Mrs. Skeens inherited from her father when he died in 2006. She kept them for “sentimental” reasons, except for the.32 revolver. It was also inherited by Mrs. Skeens from her father, but she kept it near their bed for personal protection because their home had been previously burglarized. After the search, the defendant was charged in this court with unlawful possession of a firearm in violation of 18 U.S.C.A. § 922(g)(1) (West 2000), to which he pleaded guilty. In preparation for sentencing, the probation officer assigned the defendant a base offense level of fourteen pursuant to USSG § 2K2.1(a)(6) (2008). That provision directs the court to decrease a defendant’s base offense level to six “[i]f the defendant... possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition.

2008-12-19

United States District Court for the Western District of Virginia

United States v. Skeens

United States v. Skeens, 589 F. Supp. 2d 757 (2008)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_3

the number and type of firearms, the amount and type of ammunition, the location and circumstances of possession and actual use, the nature of the defendant’s criminal history ..., and the extent to which possession was restricted by local law.

USSG § 2K2.1(b)(2). The defendant has the burden to prove that he qualifies for a reduction. Whether the defendant possessed the firearms for sporting or collection purposes is to be determined by relevant surrounding circumstances, such as “the number and type of firearms, the amount and type of ammunition, the location and circumstances of possession and actual use, the nature of the defendant’s criminal history..., and the extent to which possession was restricted by local law.

2006-08-05

United States District Court for the Eastern District of Wisconsin

United States v. Maas

United States v. Maas, 444 F. Supp. 2d 952 (2006)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_1

possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition,

Defendant stated that his brother was young, drunk and stupid at the time of the incident — attempted theft of a snowmobile — that led to his felony conviction. At trial, defendant denied telling the agents that he gave the gun to Scott for the March 2003 hunting trip, but I found his testimony incredible. Defendant also testified that he believed Scott’s felony conviction was a juvenile matter that did not “count” for purposes of the ban on weapon possession. However, I also found this claim, which defendant did not share with the agents during the April 2005 interview, incredible. Further, the claim was rebutted by the fact that defendant, who had a juvenile felony adjudication himself, petitioned the state court to re-instate his right to possess firearms. As noted, I found defendant guilty, ordered a PSR and set the case for sentencing. II. DISCUSSION In imposing sentence, I follow a three-step procedure. First, I determine the advisory guideline range, resolving any objections necessary to that determination. Second, I decide whether to grant any departures from the range under the Sentencing Commission’s policy statements. Third, I determine the appropriate sentence under the factors set forth in 18 U.S.C. § 3553(a). See, e.g., United States v. Peralta-Espinoza, 413 F.Supp.2d 972, 974 (E.D.Wis.2006). A. Guideline Range 1. Offense Level on the Firearm Count Defendant argued that the offense level on the firearm count should be 6 under § 2K2.1 (b)(2) rather than 14 under § 2K2.1(a)(6)(B). The latter provision provides for an offense level of 14 if the defendant was convicted under 18 U.S.C. § 922(d), which defendant was in the present case. However, § 2K2.1 (b)(2) provides that if the defendant, other than a defendant subject to subsection (a)(1), (a)(2), (a)(3), (a)(4), or (a)(5), “

2006-08-05

United States District Court for the Eastern District of Wisconsin

United States v. Maas

United States v. Maas, 444 F. Supp. 2d 952 (2006)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_0

one who possesses a gun collection owned by another can never receive a section 2K2.1 (b)(2) decrease.

But defendant brought those consequences on himself based on his own conduct and, despite the impact on his family, I concluded that a sentence of imprisonment was nevertheless required under § 3553(a). III. CONCLUSION Therefore, I committed defendant to the custody of the Bureau of Prisons for six months on each count to run concurrently. I further ordered him to serve a two-year term of supervised release, the conditions of which appear in the judgment. 1 . I draw these facts primarily from the trial testimony and my written findings of fact, supplemented by the PSR. 2 . The government charged Scott with being a felon in possession of a firearm. 18 U.S.C. § 922(g). He pleaded guilty, and I sentenced him to nine months in prison. 3 .Scott did not use the Super X2 shotgun to kill these birds. 4 . The parties stipulated that Scott had an adult felony conviction. 5 . Sections (a)(l)-(5) apply if the defendant has previously been convicted of a crime of violence or controlled substance offense, or the firearm in question was otherwise illegal (e.g., an assault rifle or sawed-off shotgun). 6 . The dissenting judge noted that the guideline, by its terms, does not apply solely to possession cases. He further noted that what is now application note 5 clearly contemplates that the reduction to level 6 will be available in some distribution cases. Id. at 255-56 (Stanton, J., dissenting). 7 . The Eighth Circuit similarly held that a defendant who kept his father's gun collection at his house could obtain the reduction. The Moit court rejected the notion that "

2012-09-04

United States Court of Appeals for the Second Circuit

United States v. Mason

United States v. Mason, 692 F.3d 178 (2012)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_2

solely for lawful sporting purposes or collection.

POOLER, Circuit Judge: Rodney Mason appeals from a January 4, 2011 judgment of the United States District Court for the District of Vermont (Reiss, C.J.) convicting him, following a guilty plea, of one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced Mason principally to a term of imprisonment of thirty-three months. Section 2K2.1(b)(2) of the United States Sentencing Guidelines (“U.S.S.G.”), allows a reduction in sentence where a defendant possessed each firearm “

2012-09-04

United States Court of Appeals for the Second Circuit

United States v. Mason

United States v. Mason, 692 F.3d 178 (2012)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_1

the defendant ... possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition.

” (quoting Pedragh, 225 F.3d at 244) (internal quotation marks and alterations omitted)). Section 2K2.1(b)(2) calls for a reduction to a base offense level of 6 if, in relevant part, the district court finds that “the defendant... possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition.

2012-09-04

United States Court of Appeals for the Second Circuit

United States v. Mason

United States v. Mason, 692 F.3d 178 (2012)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_3

the number and type of firearms

U.S.S.G. § 2K2.1(b)(2) (emphasis added). By using the conjunctive “and,” this provision establishes two requirements: (1) possessing the firearms in question solely for lawful sporting purposes or collection, and (2) not using those firearms in an unlawful manner. Application Note 6 directs that lawful sporting purposes are to be “determined by the surrounding circumstances” of possession. As examples of “[Relevant surrounding circumstances,” Application Note 6 lists: (1) “

2012-09-04

United States Court of Appeals for the Second Circuit

United States v. Mason

United States v. Mason, 692 F.3d 178 (2012)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_3

the amount and type of ammunition

As examples of “[Relevant surrounding circumstances,” Application Note 6 lists: (1) “the number and type of firearms”; (2) “

2012-09-04

United States Court of Appeals for the Second Circuit

United States v. Mason

United States v. Mason, 692 F.3d 178 (2012)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_3

the location and circumstances of possession and actual use

As examples of “[Relevant surrounding circumstances,” Application Note 6 lists: (1) “the number and type of firearms”; (2) “the amount and type of ammunition”; (3) “

2012-09-04

United States Court of Appeals for the Second Circuit

United States v. Mason

United States v. Mason, 692 F.3d 178 (2012)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_3

the location and circumstances of possession and actual use

Certainly, evidence of actual use is relevant to that inquiry, and may even be dispositive. A finding that the defendant used the firearm for unlawful purposes would disqualify him or her altogether. Moreover, since Application Note 6 includes “

2012-09-04

United States Court of Appeals for the Second Circuit

United States v. Mason

United States v. Mason, 692 F.3d 178 (2012)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_0

that one who possesses a gun collection owned by another can never receive a section 2K2.1 (b)(2) decrease

See United States v. Mojica, 214 F.3d 1169, 1174 (10th Cir.2000) (interpreting Section 2K2.1 (b)(2) to include “situations in which the defendant is not the sports enthusiast or collector but his possession is solely associated with or related to lawful sporting or collection purposes..., such as in transporting or holding the firearm for another’s lawful sporting or collection purpose”); United States v. Moit, 100 F.3d 605, 607 (8th Cir.1996) (rejecting the contention “

2012-09-04

United States Court of Appeals for the Second Circuit

United States v. Mason

United States v. Mason, 692 F.3d 178 (2012)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_1

possessed all ammunition and firearms solely for lawful sporting purposes or collection

United States v. Dolah, 245 F.3d 98, 107 (2d Cir.2001), abrogated on other grounds, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Here, we conclude that the district court’s error was harmless. See U.S.S.G. § 2K2.1(b)(2) (providing that the reduction applies if the defendant “

2000-05-30

United States Court of Appeals for the Tenth Circuit

United States v. Mojica

United States v. Mojica, 214 F.3d 1169 (2000)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_0

one who possesses a gun collection owned by another can never receive a section 2K2.1(b)(2) decrease.

He thus showed that his continued possession while transporting the shotgun from his brother’s house to the owner’s house was “solely for lawful sport ing purposes” of others. Under these assumed facts, Mr. Mojica’s possession of the firearm constituted a benign act associated with a lawful sporting purpose meriting consideration of application of § 2K2.1(b)(2). Our holding is consistent with United States v. Moit, 100 F.3d 605 (8th Cir.1996), which the district court rejected. In Moit the Eighth Circuit held that a defendant convicted under § 922 who kept his father’s gun collection at the defendant’s house should have received the § 2K2.1(b)(2) reduction even though he was not the collector and the guns were not found in locations consistent with collection purposes. It expressly rejected the government’s argument that “

2003-03-17

United States Court of Appeals for the Eighth Circuit

United States v. Keever

United States v. Keever, 57 F. App'x 719 (2003)

1996-11-14

United States Court of Appeals for the Eighth Circuit

United States v. Moit

United States v. Moit, 100 F.3d 605 (1996)

11938480_1

possessed all ammunition and firearms solely for lawful sporting purposes or collection.

PER CURIAM. After James Keever sold a gun to a pawn shop on behalf of the gun’s owner, Keever was arrested for being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1) (2000). Keever pleaded guilty. The district court denied Keever’s motion for a reduction in the offense level under U.S. Sentencing Guidelines Manual § 2K2.1(b)(2) (2002) and sentenced him to 30 months in prison. Keever appeals his sentence. We review the district court’s findings of fact for clear error and its application of the guidelines to the facts de novo, bearing in mind that it was Keever’s burden to prove a reduction in the offense level should apply. U.S.S.G. § 2K2.1(b)(2) provides for an eight level reduction in Keever’s offense level if he “

1999-02-04

United States Court of Appeals for the Ninth Circuit

Gruntz v. County of Los Angeles (In re Gruntz)

Gruntz v. County of Los Angeles (In re Gruntz), 166 F.3d 1020 (1999)

1988-07-07

United States Bankruptcy Court for the Southern District of Florida

In re Mann

In re Mann, 88 B.R. 427 (1988)

11932291_0

the collection of alimony, maintenance, or support from property that is not property of the estate

Certain acts, however, are excluded from the automatic stay, e.g. “the commencement or continuation of a criminal action or proceeding against the debtor”, 11 U.S.C. § 362(b)(1), “

1999-02-04

United States Court of Appeals for the Ninth Circuit

Gruntz v. County of Los Angeles (In re Gruntz)

Gruntz v. County of Los Angeles (In re Gruntz), 166 F.3d 1020 (1999)

1988-07-07

United States Bankruptcy Court for the Southern District of Florida

In re Mann

In re Mann, 88 B.R. 427 (1988)

11932291_0

collection of support from property that is not property of the estate.

Id. Gruntz, like Hucke, faced criminal proceedings as a result of his failure to pay a court imposed financial obligation. The critical difference, however, is that contrary to the facts in Hucke. which dispelled any notion that the proceeding was intended to recover money, Gruntz alleges that the County threatened to prosecute him unless he paid the back child support, and then offered a suspended sentence if he would pay the money he owed. These allegations, if proved, would tend to support a finding that Gruntz’s criminal prosecution for failure to support his children was intended as a debt collection action. If that should be the case, neither the exception to the automatic stay for criminal proceedings provided by subsection 362(b)(1), nor the exception for a proceeding by a governmental unit to enforce its police or regulatory power provided by subsection 362(b)(4), would apply. See Hucke, 992 F.2d at 953. The County argues alternatively that under 11 U.S.C. § 362(b)(2), its criminal prosecutions are excluded from the automatic stay because they were proceedings for the “

1999-02-04

United States Court of Appeals for the Ninth Circuit

Gruntz v. County of Los Angeles

Gruntz v. County of Los Angeles, 166 F.3d 1020 (1999)

1988-07-07

United States Bankruptcy Court for the Southern District of Florida

In re Mann

In re Mann, 88 B.R. 427 (1988)

11932291_0

the collection of alimony, maintenance, or support from property that is not property of the estate

Certain acts, however, are excluded from the automatic stay, e.g. “the commencement or continuation of a criminal action or proceeding against the debtor”, 11 U.S.C. § 362(b)(1), “

1999-02-04

United States Court of Appeals for the Ninth Circuit

Gruntz v. County of Los Angeles

Gruntz v. County of Los Angeles, 166 F.3d 1020 (1999)

1988-07-07

United States Bankruptcy Court for the Southern District of Florida

In re Mann

In re Mann, 88 B.R. 427 (1988)

11932291_0

collection of support from property that is not property of the estate.

Id. Gruntz, like Hucke, faced criminal proceedings as a result of his failure to pay a court imposed financial obligation. The critical difference, however, is that contrary to the facts in Hucke which dispelled any notion that the proceeding was intended to recover money, Gruntz alleges that the County threatened to prosecute him unless he paid the back child support, and then offered a suspended sentence if he would pay the money he owed. These allegations, if proved, would tend to support a finding that Gruntz’s criminal prosecution for failure to support his children was intended as a debt collection action. If that should be the case, neither the exception to the automatic stay for criminal proceedings provided by subsection 362(b)(1), nor the exception for a proceeding by a governmental unit to enforce its police or regulatory power provided by subsection 362(b)(4), would apply. See Hucke, 992 F.2d at 953. The County argues alternatively that under 11 U.S.C. § 362(b)(2), its criminal prosecutions are excluded from the automatic stay because they were proceedings for the “

1999-02-04

United States Court of Appeals for the Ninth Circuit

Gruntz v. County of Los Angeles (In re Gruntz)

Gruntz v. County of Los Angeles (In re Gruntz), 177 F.3d 728 (1999)

1988-07-07

United States Bankruptcy Court for the Southern District of Florida

In re Mann

In re Mann, 88 B.R. 427 (1988)

11932291_0

the collection of alimony, maintenance, or support from property that is not property of the estate

Certain acts, however, are excluded from the automatic stay, e.g. “the commencement or continuation of a criminal action or proceeding against the debtor”, 11 U.S.C. § 362(b)(1), “

1999-02-04

United States Court of Appeals for the Ninth Circuit

Gruntz v. County of Los Angeles (In re Gruntz)

Gruntz v. County of Los Angeles (In re Gruntz), 177 F.3d 728 (1999)

1988-07-07

United States Bankruptcy Court for the Southern District of Florida

In re Mann

In re Mann, 88 B.R. 427 (1988)

11932291_0

collection of support from property that is not property of the estate.

Id. Gruntz, like Hucke, faced criminal proceedings as a result of his failure to pay a court imposed financial obligation. The critical difference, however, is that contrary to the facts in Hucke which dispelled any notion that the proceeding was intended to recover money, Gruntz alleges that the County threatened to prosecute him unless he paid the back child support, and then offered a suspended sentence if he would pay the money he owed. These allegations, if proved, would tend to support a finding that Gruntz’s criminal prosecution for failure to support his children was intended as a debt collection action. If that should be the case, neither the exception to the automatic stay for criminal proceedings provided by subsection 362(b)(1), nor the exception for a proceeding by a governmental unit to enforce its police or regulatory power provided by subsection 362(b)(4), would apply. See Hucke, 992 F.2d at 953. The County argues alternatively that under 11 U.S.C. § 362(b)(2), its criminal prosecutions are excluded from the automatic stay because they were proceedings for the “

1994-01-20

United States Bankruptcy Court for the Northern District of Georgia

Rogers v. Overstreet (In re Rogers)

Rogers v. Overstreet (In re Rogers), 164 B.R. 382 (1994)

1988-07-07

United States Bankruptcy Court for the Southern District of Florida

In re Mann

In re Mann, 88 B.R. 427 (1988)

11932291_0

the collection of alimony, maintenance, or support from property that is not property of the estate.

Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title... operates as a stay, applicable to all entities, of— (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or'to recover a claim against the debtor that arose before the commencement of the case under this title; (2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;... 11 U.S.C. § 362(a)(1) & (a)(2). Under these provisions, all proceedings against the debtor and his property are stayed during the pen-dency of the bankruptcy case. The automatic stay, however, does not allow a debtor to challenge the prepetition conduct of a creditor. Moreover, claims against the debtor that arise postpetition do not come within the scope of § 362(a) since they could not have been brought before the bankruptcy case was commenced. See In re Petruccelli, 113 B.R. 5, 6 (Bankr.S.D.Cal.1990). Despite the broad scope of the automatic stay, however, it does not serve to stay all proceedings involving the debtor. Heflin v. Heflin (In re Heflin), 145 B.R. 560, 562 (Bankr.S.D.Ohio 1992); In re Shuman, 122 B.R. 317, 318 (Bankr.S.D.Ohio 1990). Among the acts excepted from the automatic stay is “

1993-11-24

United States District Court for the District of Kansas

Kearns v. Orr (In re Kearns)

Kearns v. Orr (In re Kearns), 161 B.R. 701 (1993)

1988-07-07

United States Bankruptcy Court for the Southern District of Florida

In re Mann

In re Mann, 88 B.R. 427 (1988)

11932291_0

the collection of alimony, maintenance, or support from property that is not property of the estate.

The filing of a bankruptcy petition operates as a stay against the enforcement of judgment or proceedings against the debtor or against property of the estate. 11 U.S.C. § 362(a). A deliberate act in violation of the stay, which the violator knows to be in existence, justifies an award of actual damages under § 362(h). See In re Drexel Burnham Lambert Group Inc., 120 B.R. 724, 738 (Bankr.S.D.N.Y.1990). An additional finding of maliciousness or bad faith warrants the imposition of punitive damages. Id. If there is uncertainty as to whether the automatic stay applies, the prudent practitioner should petition the court for clarification. See, e.g., In re Brock, 58 B.R. 797, 804 (Bankr.S.D.Ohio 1986); In re Daugherty, 117 B.R. 515, 517 (Bankr.D.Neb.1990). Otherwise, he or she takes a calculated risk of being held in contempt. Brock, 58 B.R. at 804. The contempt proceedings arose from a confinement order which the District Court of Johnson County entered on May 12, 1992, directing Kearns to serve each weekend in the county jail. The order stated (1) that at a previous hearing the court had found Kearns guilty of indirect civil contempt and had ordered him to serve each weekend in the county jail; (2) that the previous order had been stayed on the condition that Kearns make certain support payments as ordered; and (3) that Kearns had failed to abide by that order. The order further provided that Kearns could earn two credit hours toward every weekend in custody for each payment of $100. On January 21,1992, prior to the contempt proceedings, the bankruptcy court had held that Kearns’ alimony and support obligations to Leibner were nondisehargeable; however, the court did not rule on the legitimacy of the amounts claimed by Leibner. Section 362(b)(2) excepts from the automatic stay “

1993-11-24

United States District Court for the District of Kansas

Kearns v. Orr (In re Kearns)

Kearns v. Orr (In re Kearns), 161 B.R. 701 (1993)

1988-07-07

United States Bankruptcy Court for the Southern District of Florida

In re Mann

In re Mann, 88 B.R. 427 (1988)

11932291_0

from property that is not property of the estate.

” 11 U.S.C. § 362(b)(2). Kearns argues, and the court agrees, that the contempt proceedings against Kearns were brought against him personally and, therefore, are not excepted under § 362(b)(2). As a Chapter 7 debtor, Kearns’ post-petition earnings were not property of the estate and would have been available to pay nondisehargeable support obligations. Mann, 88 B.R. at 430 (Chapter 7 debtor’s future earnings and exempt property would be available for payment of past alimony and child support). Section 362(b)(2) excepts collection of support only “

1996-10-04

United States Bankruptcy Court for the Southern District of New York

In re Hyo Jin Moon

In re Hyo Jin Moon, 201 B.R. 79 (1996)

1988-07-07

United States Bankruptcy Court for the Southern District of Florida

In re Mann

In re Mann, 88 B.R. 427 (1988)

11932291_0

that is not property of the estate

The exception to the automatic stay in section 362(b)(2)(B) As noted by this Court at the preliminary conference on September 20 and again at the hearing on September 26, Ms. Moon’s invocation of the exception under section-362(b)(2)(B) raises extremely serious jurisprudential and philosophical questions with regard to the contempt order. Accordingly, it is appropriate to reiterate here that this Court expresses no view as to the legal validity of the contempt order and assumes that that order is lawful and proper under the law of the Commonwealth of Massachusetts. This Court’s consideration of the contempt order is solely in the context óf the interpretation of the federal Bankruptcy Code. Section 362(b)(2)(B) states as follows: (b) The filing of a petition under section 301, 302, or 303 of this title... does not operate as a stay— ****** (2) under subsection (a) of this section— ****** (B) of the collection of alimony, maintenance, or support from property that is not property of the estate [emphasis supplied]. Ms. Moon’s position with respect to section 362(b)(2)(B), as exposed in her court papers and in oral argument, may be summarized as follows. (1) It is accepted for purposes of this contested matter that the debtor has no assets — indeed, Ms. Moon acknowledges that she has no knowledge of any assets owned by the debtor from which he could pay the $65,000, and an important purpose of the counsel fees sought is to conduct discovery proceedings in the hope of finding assets. (2) It is not claimed that the debtor has acquired any earnings or other property post-petition which is not part of the debtor’s estate — indeed, it is not disputed that the debtor is unemployed. (3) The property “

1996-10-04

United States Bankruptcy Court for the Southern District of New York

In re Hyo Jin Moon

In re Hyo Jin Moon, 201 B.R. 79 (1996)

1988-07-07

United States Bankruptcy Court for the Southern District of Florida

In re Mann

In re Mann, 88 B.R. 427 (1988)

11932291_0

collection ... from property that is not property of the estate

The property “that is not property of the estate” from which Ms. Moon seeks to collect the $65,000 is property of Rev. Moon, the Church or the family trust in Switzerland. Starkly put, it is Ms. Moon’s position that the debtor is incarcerated in order to compel third parties Rev. Moon, the Church and the family trust, over whom she acknowledges the debtor has no legal control, to pay the debtor’s obligation for which the third parties have no liability. The proposition is that these third parties have in the past provided the debtor seemingly unlimited funds, and they have the resources to pay the modest obligation set by the Probate Court. Some may perceive a sort of “rough justice” in the debtor’s incarceration, given the unusual facts in this case including the debt- or’s own conduct, the third parties’ unquestioned ability to pay the $65,000 and their past willingness to finance the debtor’s extravagant and profligate conduct in sums dwarfing the debtor’s unpaid obligation to Ms. Moon. Conceivably, it may even be true (however unlikely) that this debtor’s character is of such obduracy that he is prepared voluntarily to remain in prison despite having the ability, apparently attributed to him by the Probate Court, to exercise some power to extract the payment from the third parties. The issue is whether the statutory words “collection... from property that is not property of the estate” can be construed to refer to property of third parties over which the debtor has no objectively discernible control.

1996-10-04

United States Bankruptcy Court for the Southern District of New York

In re Hyo Jin Moon

In re Hyo Jin Moon, 201 B.R. 79 (1996)

1988-07-07

United States Bankruptcy Court for the Southern District of Florida

In re Mann

In re Mann, 88 B.R. 427 (1988)

11932291_0

property that is not property of the estate

The issue is whether the statutory words “collection... from property that is not property of the estate” can be construed to refer to property of third parties over which the debtor has no objectively discernible control. I conclude that the statute cannot be so construed. At the threshold, it must be perceived as grossly anomalous to hold that an exception confined to 'property would be interpreted as an exception to those portions of subsections (1), (2) and (6) of section 362(a) which apply to and stay actions and proceedings against the debtor personally. Far more horrific is the notion that a debtor may be incarcerated in order to extract payment of the debtor’s liability from third parties who have no obligation to do so. The legislative history, referring to the phrase “

1990-10-05

United States District Court for the Northern District of Ohio

Hull v. Bowen

Hull v. Bowen, 748 F. Supp. 514 (1990)

1987-04-10

United States Court of Appeals for the Sixth Circuit

Dearing v. Secretary of Health & Human Services

Dearing v. Secretary of Health & Human Services, 815 F.2d 1082 (1987)

519514_0

independent determination that the amount requested [is] in fact reasonable.

It is the Committee’s intent that when fee awards are made in Social Security or SSI cases under the EAJA, and provision is also allowed under the Social Security Act for recovery of attorney fees of up to 25% of the claimant’s [back] benefits, that the EAJA award should be used as a set off to reduce the payment which the claimant would otherwise owe the attorney. Thus, under the amendment an attorney for a Social Security or SSI claimant would be precluded from receiving both EAJA and Social Security Act fees. Without this amendment it was argued, “double dipping” was possible. Such double payments are inappropriate and deprives the plaintiff of the benefits intended by EAJA. Because the Committee is aware of the important function served by counsel in these' cases, the Committee permits the attorney to seek recovery under both authorizations. The attorney, however, may keep the larger fee, but must return the amount of the smaller fee to the claimant. H.R.Rep. No. 120 at 149. See also Meyers at 231-32 n. 4 (noting that the ramifications of 42 U.S.C. § 406(b)(2) are avoided if the attorney returns the smaller fee to the claimant). In construing 42 U.S.C. §§ 406(a), (b), the Sixth Circuit has held that the tribunal that awards benefits is empowered to approve and certify a fee award, not in excess of 25% of the total past due benefits, for representation at both the administrative and the trial level. Webb at 537. In calculating an attorney fee award to the pursuant to 42 U.S.C. § 406(b)(1), the court must make an “

1977-07-20

United States District Court for the Eastern District of New York

Halligan v. Standard & Poor’s/Intercapital, Inc.

Halligan v. Standard & Poor’s/Intercapital, Inc., 434 F. Supp. 1082 (1977)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_4

express statutory provision for one form of proceeding ordinarily implies that no other means of enforcement was intended by the Legislature.

Plaintiff contends that the directors may be held liable for violation of that duty. Defendants point out, however, that §§ 15(c) and 36(b) were both added to the Act by the 1970 amendments. They argue that it would be illogical to assume that Congress intended § 15(c) to be an implicit exception to the explicit limits of § 36(b)(3). Congressional creation of an “

1975-07-23

United States District Court for the District of Columbia

Network Project v. Corporation for Public Broadcasting

Network Project v. Corporation for Public Broadcasting, 398 F. Supp. 1332 (1975)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_7

the inference of such a private cause of action not otherwise authorized by the statute must be consistent with the evident legislative intent and, of course, with the effectuation of the purposes intended to be served by the act.

Here the plaintiffs have alleged that defendants Whitehead and Buchanan “and other officers and employees of the United States” influenced and coerced CPB Directors, employees, and grantees, and employees of PBS, with the intent to interfere with and control program content. Although plaintiffs allege specific acts of defendants Whitehead and Buchanan, they have not alleged that those acts reflected a general policy of the Executive Branch which could be assumed to have continued to exist under Whitehead’s successor. The general allegations as to other unidentified officers and employees do not cure this defect. Therefore, the Court concludes that the claims for declaratory and injunctive relief against the federal defendant Whitehead and his successor in their official capacities are moot. IY Implication Of A Private Right Of Action Under The Public Broadcasting Act of 1967 The plaintiffs allege that the actions of the defendants violate §§ 396 and 398 of the Act and that they have a private right of action to enforce those sections. Although unable to identify an express provision of such a right, plaintiffs contend that private actions are not precluded by Congress and this particular act necessarily implies a right of action. Recent cases indicate that implication of a right of action from a statute requires close examination of the statute and its legislative history — “

1999-05-14

United States District Court for the Southern District of New York

Securities Investor Protection Corp. v. BDO Seidman, LLP

Securities Investor Protection Corp. v. BDO Seidman, LLP, 49 F. Supp. 2d 644 (1999)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_12

customers of failed firms found their cash and securities on deposit either dissipated or tied up in lengthy bankruptcy proceedings.

The Trustee was appointed as trustee for the liquidation of Baron pursuant to an order of this Court in SIPC v. A.R. Baron & Co., Inc., No. 96 Civ. 5171 (S.D.N.Y. July 11, 1996) (the “Protective Decree”). Since the establishment of the Protective Decree, the Trustee has paid over $2.5 million to customers and other creditors for which it has received assignments. (See id. ¶ 48). DISCUSSION I. Motion to Dismiss Standard In deciding this motion to dismiss, I must view the complaint in the light most favorable to plaintiffs. Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Yoder v. Orthomolecular Nutrition Institute, Inc., 751 F.2d 555, 562 (2d Cir.1985). I must accept as true the factual allegations stated in the complaint, Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), and draw all reasonable inferences in favor of the plaintiffs. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir.1993), cert. denied, 510 U.S. 1111, 114 S.Ct. 1055, 127 L.Ed.2d 375 (1994). A motion to dismiss can only be granted if it appears beyond doubt that the nonmoving party can prove no set of facts in support of its claim which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Even under this liberal standard, however, the plaintiffs’ claims suffer from deficiencies that require their dismissal at this time. II. Securities Investor Protection Act Generally Congress enacted the Securities Investor Protection Act of 1970, as amended, 15 U.S.C. §§ 78aaa-78III (1994) (the “Act” or “SIPA”), after a business contraction in the securities industry led to a rash of failures among brokerage firms. After that contraction, “

1999-05-14

United States District Court for the Southern District of New York

Securities Investor Protection Corp. v. BDO Seidman, LLP

Securities Investor Protection Corp. v. BDO Seidman, LLP, 49 F. Supp. 2d 644 (1999)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_26

arrest this process, restore investor confidence in the capital markets, and upgrade the financial responsibility requirements for registered brokers and dealers.

” SIPA was intended to “

1999-05-14

United States District Court for the Southern District of New York

Securities Investor Protection Corp. v. BDO Seidman, LLP

Securities Investor Protection Corp. v. BDO Seidman, LLP, 49 F. Supp. 2d 644 (1999)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_23

applicable only to member firms, designed to accomplish the completion of open transactions and the speedy return of most customer property.

Id. SIPA created a new form of liquidation proceeding that was “

1999-05-14

United States District Court for the Southern District of New York

Securities Investor Protection Corp. v. BDO Seidman, LLP

Securities Investor Protection Corp. v. BDO Seidman, LLP, 49 F. Supp. 2d 644 (1999)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_11

the power (1) to sue and be sued, complain and defend, in its corporate name....

Id. at 556. In addition to finding no statutory language permitting the trustee to prosecute fraud claims against third parties, Judge Pollack found that to allow such an action would defeat the preference system of SIPA that was established by Congress. See id. at 557. With respect to the SIPA trustee’s common law right to bring suit, Judge Pollack noted that the Court of Appeals’ reliance on insurance law as the basis for such a right was inappropriate given that SIPA had its roots in the old Bankruptcy Act. See id. at 557-58. The Mishkin and Redington decisions are important because of their discussion of the statutory and common law authority to bring suit against a third-party accountant. I next address how each in turn affects standing with regard to the plaintiffs. 1. That Section provides that SIPC has “

2000-06-05

United States Court of Appeals for the Second Circuit

Securities Investor Protection Corp. v. BDO Seidman, LLP

Securities Investor Protection Corp. v. BDO Seidman, LLP, 222 F.3d 63 (2000)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_11

the power to sue and be sued, complain and defend, in its corporate name and through its own counsel, in any State, Federal, or other court.

”) (citations and internal quotation marks omitted), we need not do so in this case, as we hold that the SIPC’s claims on behalf of Baron’s customers fail under Rule 12(b)(6). See infra Part II. We therefore assume, without deciding, that the SIPC has standing as the customers’ subrogee, but find that the district court was correct in dismissing its claims on substantive grounds. 2. Standing to sue on its own behalf In addition to bringing suit as subrogee of Baron’s customers, the SIPC argues that the plain language of the SIPA permits the SIPC to sue in its own right for any losses it may have suffered as a result of Seidman’s misconduct. The SIPA endows the SIPC with “

2001-01-24

United States District Court for the Southern District of New York

Securities Investor Protection Corp. v. Stratton Oakmont, Inc. (In re Stratton Oakmont, Inc.)

Securities Investor Protection Corp. v. Stratton Oakmont, Inc. (In re Stratton Oakmont, Inc.), 257 B.R. 644 (2001)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_15

as a nonprofit membership corporation for the purpose, inter alia, of providing financial relief to the customers of failing broker-dealers with whom they had left cash or securities on deposit.

” The Securities Investor Protection Corporation (“SIPC”) was established under SIPA “

1985-02-07

United States Court of Appeals for the Tenth Circuit

Shoultz v. Monfort of Colorado, Inc.

Shoultz v. Monfort of Colorado, Inc., 754 F.2d 318 (1985)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_33

in any court of the United States ...

Stern, 547 F.2d at 1345; see also Bradley v. Computer Sciences Corp., 643 F.2d 1029, 1033 (4th Cir.), cert. denied, 454 U.S. 940, 102 S.Ct. 476, 70 L.Ed.2d 248 (1981). There are allegations in the second cause of action in the amended complaint of a claim under 42 U.S.C. § 1985(2) of obstructing justice and intimidating a party, witness or juror “in any court of the United States...”

1977-02-25

United States Court of Appeals for the Second Circuit

Abrahamson v. Fleschner

Abrahamson v. Fleschner, 568 F.2d 862 (1977)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_28

all suits in equity and actions at law brought to enforce any liability or duty created by

By contrast, Section 22 of the 1933 Act, 15 U.S.C. § 77v (1970), Section 27 of the 1934 Act, 15 U.S.C. § 78aa (1970), and Section 44 of the Investment Companies Act, 15 U.S.C. § 80-a-43 (1970), provide that the district courts shall have jurisdiction of “

1977-02-25

United States Court of Appeals for the Second Circuit

Abrahamson v. Fleschner

Abrahamson v. Fleschner, 568 F.2d 862 (1977)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_28

actions at law brought to enforce any liability . . . .

Unlike the Securities Investor Protection Act, which was involved in Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975), the Advisers Act in general, and the antifraud provisions in particular, do not manifest a specific legislative intent to restrict enforcement to the Commission. Here, private suits would be consistent with Commission action. The provision allowing the Commission the usual discretion to sue simply makes it clear that the SEC is not compelled to sue in every case. Indeed it would be extraordinary for Congress to require an agency to bring enforcement proceedings in every instance. The Court in Barbour distinguished J. I. Case Co. v. Borak, where the Court had found private suits a necessary supplement for — rather than a hindrance to — Commission action. 421 U.S. at 423. 20 . See Sections 11 and 12 of the 1933 Act, 15 U.S.C. §§ 77k and 77l (1970); Sections 9(e), 16(b) and 18 of the 1934 Act, 15 U.S.C. §§ 78i(e), 78p(b) and 78r (1970); Sections 16(a) and 17(b) of the Public Utility Holding Company Act of 1935, 15 U.S.C. §§ 79p(a) and 79q(b) (1970); Section 323(a) of the Trust Indenture Act of 1939, 15 U.S.C. § 77www(a) (1970); and Section 30(f) of the Investment Companies Act of 1940, 15 U.S.C. § 80a-29(f) (1970). 21 . As originally introduced in the House and Senate, the proposed Advisers Act merely incorporated the jurisdictional provision of the Investment Companies Act. Section 203 of S. 3580 and H.R. 8935. As reported out of the committees, the bills omitted all references to other statutes; and the Advisers Act was given its own jurisdictional provision which did not contain any reference to “actions at law brought to enforce any liability.

1976-08-27

United States Court of Appeals for the Seventh Circuit

Cannon v. University of Chicago

Cannon v. University of Chicago, 559 F.2d 1063 (1976)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_16

The respondent contends that since the SIPC does not in terms preclude a private cause of action at the instance of a member broker’s customers, and since such customers are the intended beneficiaries of the Act, the Court should imply a right of action by which customers can compel the SIPC to discharge its obligations to them. As we said only last Term in analyzing a similar contention, ‘It goes without saying . . . that the inference of such a private cause of action not otherwise authorized by the statute must be consistent with the evident legislative intent and, of course, with the effectuation of the purposes intended to be served by the Act.’ National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453 [457-58, 94 S.Ct. 690, 38 L.Ed.2d 646] (1974).

” In Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975), the Supreme Court held that the Securities Investor Protection Act of 1970, which established a nonprofit corporation, SIPC, to provide financial relief to customers of failing broker-dealers, did not create a private right of action for such customers to compel SIPC to exercise its statutory authority for their benefit. “The respondent contends that since the SIPC does not in terms preclude a private cause of action at the instance of a member broker’s customers, and since such customers are the intended beneficiaries of the Act, the Court should imply a right of action by which customers can compel the SIPC to discharge its obligations to them.

1992-04-13

United States Court of Appeals for the Tenth Circuit

Securities Investor Protection Corp. v. Blinder, Robinson & Co.

Securities Investor Protection Corp. v. Blinder, Robinson & Co., 962 F.2d 960 (1992)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_6

has failed or is in danger of failing to meet its obligations to its customers,

In her written order, the district judge stated, inter alia: that the customers of Blinder, Robinson are in need of the protection afforded by SIPA; that Mr. Keller was appointed trustee with the duties and powers prescribed by the act, and a $100,000 fidelity bond was required; that the creditors and other persons were notified that the automatic stay provisions of 11 U.S.C. § 362(a) operated as a stay of the commencement of judicial proceedings, the enforcement of judgments, and “any act to obtain possession of property of the estate or of property from the estate,” inter alia; and that any pending bankruptcy was stayed. Other provisions required by the statute were also included. The district judge was requested to stay her order pending appeal, but denied that relief, and the trustee began liquidating Blinder, Robinson upon appointment. In this appeal, Blinder, Robinson challenges the district court’s finding of the existence of two of the statutory grounds necessary for the appointment of a trustee. It also claims a deprivation of due process by the rapid manner in which the district court acted on the SIPC application without an evidentiary hearing. II The SIPC may initiate a liquidation proceeding by applying to a court for a protective decree if it determines that a member “

1992-04-13

United States Court of Appeals for the Tenth Circuit

Securities Investor Protection Corp. v. Blinder, Robinson & Co.

Securities Investor Protection Corp. v. Blinder, Robinson & Co., 962 F.2d 960 (1992)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_23

designed to accomplish the completion of open transactions and the speedy return of most customer property.

Brief of Appellee SIPC at 7 (emphasis in original). We are convinced that the district court’s ruling was proper under the correct construction of the statutory phrase concerning a member’s ability to meet “its obligations as they mature.” We read the term “obligations” in § 78eee(b)(l)(A) to include a broker-dealer’s general as well as financial obligations to both its customers and to others. The phrase “as they mature” should be read to mean that the condition would be satisfied if the stockbroker was unable to meet its obligations on demand. As the Supreme Court has recognized, the SIPA liquidation proceeding for stockbrokers was “

1977-01-21

United States Court of Appeals for the Seventh Circuit

McDaniel v. University of Chicago

McDaniel v. University of Chicago, 548 F.2d 689 (1977)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_11

sue and be sued, complain and defend, in its corporate name and through its own counsel, in any court, State, or Federal,

Similar reasoning is apparent in Securities Investor Protection v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975), and in Passenger Corp. v. Passenger Assn., 414 U.S. 453, 457-58, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974), (hereafter “Amtrak”), on which Securities Investor heavily relies. In Securities Investor, the question was whether customers of failing broker-dealers had an implied private right of action under the Securities Investor Protection Act of 1970 (SIPA), 15 U.S.C. § 78aaa et seq., to compel the Securities Investor Protection Corporation (SIPC) to exercise its statutory authority for their benefit. The SIPC was a non-profit corporation designed by Congress to afford limited financial relief for losses suffered by customers of failing broker-dealers. In holding that no private right of action was implicit in 15 U.S.C. § 78aaa et seq., the Court stressed several factors. First, the very structure of the SIPC and SEC yielded a strong inference against private causes of action. The SIPC is a non-profit, corporate entity, designed to deal with a public problem, and is substantially supervised by the SEC. The SIPC’s practice was to defer intervention, if at all possible, to enable endangered firms to avoid collapse by infusion of new capital or merger. Securities Investor, supra, 421 U.S. at 421, fn. 4, 95 S.Ct. 1733. In this respect, suit for liquidation at the whim of the individual investor might be antithetical to the whole thrust of the statute. Securities Investor, supra, 421 U.S. at 422-23, 95 S.Ct. 1733; Cort v. Ash, supra, 422 at 78, 84, 95 S.Ct. 2080. The respondent in Securities Investor argued that since 15 U.S.C. § 78ccc(b)(1) provided that since the SIPC can “

1977-01-21

United States Court of Appeals for the Seventh Circuit

McDaniel v. University of Chicago

McDaniel v. University of Chicago, 548 F.2d 689 (1977)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_33

to the district court of the United States in which the principal office of SIPC is located.

However, 15 U.S.C. § 78ggg(b) limits SEC actions “

1977-01-21

United States Court of Appeals for the Seventh Circuit

McDaniel v. University of Chicago

McDaniel v. University of Chicago, 548 F.2d 689 (1977)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_22

It would be anomalous for Congress to have centralized SEC suits for the apparent convenience of the SIPC while exposing the corporation to substantively identical suits by investors ‘in any court, State or Federal.’

As the Supreme Court pointed out, “

1975-11-13

United States Court of Appeals for the Third Circuit

Securities & Exchange Commission v. Aberdeen Securities Co.

Securities & Exchange Commission v. Aberdeen Securities Co., 526 F.2d 603 (1975)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_21

charged with protection of the public interest . . . and for enforcement by that agency in court of the obligations imposed upon the corporation.

Thus, § 6(c) is intended to make the flexible Chapter X procedures available for SIPA liquidations. This does not mean that every provision of Chapter X, including provisions not relating to procedures for the operation of a bankrupt, has been incorporated into the SIPA. Only those provisions relating to the procedures for conducting the affairs of the estate during bankruptcy administration, except as inconsistent with the provision of SIPA, have been incorporated. Section 243 of Chapter X does not relate to the conduct of the administration or liquidation procedures to be followed, but rather serves to redress the balance of power between insiders and outsiders during a corporate reorganization. We note further that Congress has provided for substantial supervision of SIPC’s operations by the SEC, “charged with protection of the public interest... and for enforcement by that agency in court of the obligations imposed upon the corporation.

1975-07-14

United States Court of Appeals for the Seventh Circuit

Schreiber v. Lugar

Schreiber v. Lugar, 518 F.2d 1099 (1975)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_10

the overall structure and purpose of the scheme are incompatible with such an implied right.

Note, “Taxpayers’ Suits: A Survey and Summary,” 69 Yale L.J. 985, 920 n. 146 (1960). By its very nature, the equitable relief often sought in such actions will redound to the benefit of all. The Russeii-Scott line of cases necessarily rejects this fact as a justification for aggregation. 16 . As a result of this disposition, it is unnecessary for us to reach the question whether an implied private cause of action may be brought under the Revenue Sharing Act. The district court in Mathews v. Massell, 356 F.Supp. 291 (N.D.Ga.1973), apparently assumed the existence of such a cause of action, without discussion. A strong contrary argument can be made, however, based on the absence of any reference to citizen suits in the Act and the implementing regulations adopted by the Secretary of the Treasury, 31 C.F.R. §§ 51.0-51.75 (1974). See Cort v. Ash, - U.S. -, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Instead the Act contains detailed provisions for the monitoring and enforcement of the priority expenditure terms of the Act by the Secretary. See 31 U.S.C. §§ 1222(b), 1223(b), (e), 1241(a), (b), 1243(a), (b). From this it might be argued that “

1976-12-01

United States Court of Appeals for the First Circuit

Massachusetts Financial Services, Inc. v. Securities Investor Protection Corp.

Massachusetts Financial Services, Inc. v. Securities Investor Protection Corp., 545 F.2d 754 (1976)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_3

business as a broker or dealer

Accordingly, we agree with the district court that the words “whose business as a broker or dealer” are to be given their ordinary meaning. See Banks v. Chicago Grain Trimmers, 390 U.S. 459, 465, 88 S.Ct. 1140, 20 L.Ed.2d 30 (1968); United States v. Stewart, 311 U.S. 60, 63, 61 S.Ct. 102, 85 L.Ed. 40 (1940); Independent Meat Packers Ass’n v. Butz, 526 F.2d 228, 237 (8th Cir. 1975), cert. denied, 424 U.S. 966, 96 S.Ct. 1461, 47 L.Ed.2d 733 (1976); Andreozzi v. D’Antuono, 113 R.1.155, 158, 319 A.2d 16, 18 (1974). SIPC vigorously urges us to interpret § 78ccc(a)(2) in the light of the legislative history of SIPA, which history SIPC views as supportive of its thesis that the “

1976-01-23

United States Court of Appeals for the Second Circuit

Securities Investor Protection Corp. v. Morgan, Kennedy & Co.

Securities Investor Protection Corp. v. Morgan, Kennedy & Co., 533 F.2d 1314 (1976)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_12

Following a period of great expansion in the 1960s, the securities industry experienced a business contraction that led to the failure or instability of a significant number of brokerage firms. Customers of failed firms found their cash and securities on deposit either dissipated or tied up in lengthy bankruptcy proceedings. In addition to its disastrous effects on customer assets and investor confidence, this situation also threatened a ‘domino effect’ involving otherwise solvent brokers that had substantial open transactions with firms that failed. Congress enacted the SIPA to arrest this process, restore investor confidence in the capital markets, and upgrade the financial responsibility requirements for registered brokers and dealers.

5 . “Following a period of great expansion in the 1960s, the securities industry experienced a business contraction that led to the failure or instability of a significant number of brokerage firms.

1976-03-29

United States Court of Appeals for the Ninth Circuit

Hughes v. Dempsey-Tegeler & Co.

Hughes v. Dempsey-Tegeler & Co., 534 F.2d 156 (1976)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_19

The SIPC properly treats an application for the appointment of a receiver and liquidation of a brokerage firm as a last resort. It maintains an early warning system and monitors the affairs of any firm that it is given reason to believe may be in danger of failure. Its experience to date demonstrates that more of ten than not an endangered firm will avoid collapse by infusion of new capital or merger with a stronger firm. [Footnote omitted.] Even failing those alternatives, a firm may be able to liquidate under the supervision of one of the self-regulatory organizations, or the district court, without danger of loss to customers. The SIPC’s policy, therefore, is to defer intervention ‘until there appearfs] to be no reasonable doubt that customers would need the protection of the Act.’ SIPC 1973 Annual Report 7 (1974). By this policy, the SIPC avoids unnecessarily engendering the costs of precipitate liquidations' — the costs not only of administering the liquidation, but also of customer illiquidity and additional loss of confidence in the capital markets — without sacrifice of any customer protection that may ultimately prove necessary.

Section 6 of the Securities Exchange Act imposes a duty upon registered exchanges to enforce the provisions of the Act and the rules promulgated pursuant to it. To hold that registered exchanges have discretion as to whether those rules will be enforced would leave the exchanges in the societally unacceptable status of private clubs which existed before the passage of the Act. Silver v. New York Stock Exchange, 373 U.S. 341, 351, 83 S.Ct. 1246, 1253, 10 L.Ed.2d 389, 396 (1962). While completely discretionary enforcement is an unacceptable interpretation of Section 6, so too is the inflexible position urged by appellant. Because the securities industry is a critical and sensitive part of our economic structure, the Exchange’s regulatory approach should properly include an overview of the potential effects of its action. Flexibility in regulatory response is critical if the response is to be appropriate to the situation. The analysis of the United States Supreme Court in Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975), demonstrates the importance of flexibility in the regulation of the securities industry. That case required the Court’s interpretation of the Securities Investor Protection Act of 1970, 15 U.S.C. § 78aaa, et seq., an act established to provide statutory protection for customers of failing broker-dealers such as Dempsey. The precise question before the Court was whether an implied private right of action existed by which an individual might petition a district court to determine if the statutory conditions requiring liquidation existed. The Court refused to imply such a private right of action. “The SIPC properly treats an application for the appointment of a receiver and liquidation of a brokerage firm as a last resort.

1976-03-29

United States Court of Appeals for the Ninth Circuit

Hughes v. Dempsey-Tegeler & Co.

Hughes v. Dempsey-Tegeler & Co., 534 F.2d 156 (1976)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_25

Except with respect to the solidest of houses, the mere filing of an action predicated upon allegations of financial insecurity might often prove fatal. [Footnote omitted.] Other customers could not be expected to leave their cash and securities on deposit, nor other brokers to initiate new transactions that the firm might not be able to cover when due if a receiver is appointed, nor would suppliers be likely to continue dealing with such a firm. These consequences are too grave, and when unnecessary, too inimical to the purposes of the Act, for the Court to impute to Congress an intent to grant to every member of the investing public control over their occurrence. On the contrary, they seem to be the very sorts of considerations that motivated Congress to put the SIPC in the hands of a public board of directors, responsible to an agency experienced in regulation of the securities markets. [Footnote omitted.]

421 U.S. at 421-422, 95 S.Ct. at 1739, 44 L.Ed.2d at 271. “Except with respect to the solidest of houses, the mere filing of an action predicated upon allegations of financial insecurity might often prove fatal.

1976-03-29

United States Court of Appeals for the Ninth Circuit

Hughes v. Dempsey-Tegeler & Co.

Hughes v. Dempsey-Tegeler & Co., 534 F.2d 156 (1976)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_2

The trustee is empowered and directed by the Act to return customer property, complete open transactions, enforce rights of subrogation, and liquidate the business of the member, § 78fff(a); he is not empowered to reorganize or rehabilitate the business. The SIPC is required to advance to him such sums as are necessary to complete open transactions, and to accomplish the return of customer property up to a value of $50,000. § 78fff(f).

If the SIPC determines that a member has failed or is in danger of failing to meet its obligations to customers, and finds any one of five specified conditions suggestive of financial irresponsibility, then it ‘may apply to any court of competent jurisdiction... for a decree adjudicating that customers of such member are in need of the protection provided by [the Act].’ 15 U.S.C. § 78eee(a)(2). “The mere filing of an SIPC application gives the court in which it is filed exclusive jurisdiction over the member and its property, wherever located, and requires the court to stay ‘any pending bankruptcy, mortgage, foreclosure, equity receivership, or other proceeding to reorganize, conserve, or liquidate the [member] or its property and any other suit against any receiver, conservator, or trustee of the [member] or its property.’ 15 U.S.C. § 78eee(b)(2). If the SEC has pending any action against the member, it may, with the Commission’s consent, be combined with the SIPC proceeding. If no such action is pending, the SEC may intervene as a party to the SIPC proceeding. “If the court finds any of the five conditions on which an SIPC application may be based, it must grant the application and issue the decree, and appoint as trustee for the liquidation of the business and as attorney for the trustee, ‘such persons as SIPC shall specify.’ “The trustee is empowered and directed by the Act to return customer property, complete open transactions, enforce rights of subrogation, and liquidate the business of the member, § 78fff(a); he is not empowered to reorganize or rehabilitate the business.

1979-10-02

United States Court of Appeals for the First Circuit

Falzarano v. United States

Falzarano v. United States, 607 F.2d 506 (1979)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

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standards of conduct that a private action could help to enforce,

Touche Ross, supra, -U.S. at -, 99 S.Ct. at 2487. The next factor is whether a private right of action would be consonant with the overall legislative scheme. By providing for below-market interest rates and insuring the mortgages, the Act manifests an intent to stimulate the private sector’s entry into constructing and operating housing projects for low and moderate income tenants. To safeguard the federal fisc against possibly disastrous exposure should the insured mortgages be foreclosed, the Secretary of HUD is permitted to regulate rents, charges and methods of operation. An overriding concern is to guarantee that the rents and charges adequately cover the carrying costs of the projects. The discretion granted to the Secretary is broad indeed: the Secretary may determine both the form and manner of regulation which, in his or her opinion, will effectuate the purposes of section 17151. Tenants are guaranteed certain notice and hearing rights, particularly with respect to rent increases. 24 C.F.R. §§ 401.1-401.5. Permitting tenants to bring suit when they differ with the Secretary’s determinations as to the adequacy of rents and charges would not, we think, harmonize with the Act’s intent. See Hahn v. Gottlieb, supra, 430 F.2d 1243. Tenants are protected from excessive rents since they are able to obtain federal supplements in certain instances to cover rent increases. Unlike the Securities and Exchange Act of 1934, the National Housing Act contains no “

1979-10-02

United States Court of Appeals for the First Circuit

Falzarano v. United States

Falzarano v. United States, 607 F.2d 506 (1979)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_30

general grant of jurisdiction to the district courts.

Unlike the Securities and Exchange Act of 1934, the National Housing Act contains no “standards of conduct that a private action could help to enforce,” nor does it contain any “

1979-07-16

United States Court of Appeals for the Fourth Circuit

Stern v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

Stern v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 603 F.2d 1073 (1979)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_0

Congress’ primary purpose in enacting the SIPA and creating the SIPC was, of course, the protection of investors. It does not follow, however, that an implied right of action by investors who deem themselves to be in need of the Act’s protection, is either necessary to or indeed capable of furthering that purpose.

See, also, to the same effect Lank v. New York Stock Exchange, supra (548 F.2d at 65), which declares that, “the threshold question * * * : [is] for the benefit of whom was such regulation intended?” 41 . Davis v. Passman (5th Cir. 1978), (en banc) 571 F.2d 793 at 814 (Goldberg, J. dissenting). 42 . 422 U.S. at 78, 95 S.Ct. at 2088. 43 . The Court said in amplification: “Congress’ primary purpose in enacting the SIPA and creating the SIPC was, of course, the protection of investors.

1978-11-17

United States Court of Appeals for the District of Columbia Circuit

International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. National Right to Work Legal Defense

International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. National Right to Work Legal Defense, 590 F.2d 1139 (1978)

1975-05-19

Supreme Court of the United States

Securities Investor Protection Corp. v. Barbour

Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975)

541714_14

not the slightest reason to think that

Turning to the available evidence of legislative intent, we see that an early Senate bill introduced by Senator McClellan contained a single enforcement provision for the bill of rights provisions and the reporting and disclosure provisions of the LMRDA: enforcement of both could be sought by the Secretary of Labor or members of a labor organization acting on behalf of themselves or their organization. S. 1137, 86th Cong., 1st Sess., § 403(a) (1959); I NLRB, Legislative History of the LMRDA at 308. This bill was never reported out of committee. The Senate bill that was reported did not contain a bill of rights, but provided for enforcement of its reporting and disclosure provisions through civil action by the Secretary of Labor. S. 1555, 86th Cong., 1st Sess., § 110(c) (1959); I NLRB, Legislative History of the LMRDA at 360. When the Senate amended this bill to include a bill of rights, it provided for enforcement of its provisions by any person whose rights had been infringed. See II NLRB, Legislative History of the LMRDA at 1102, 1221, 1232, 1239. The House bill that was passed also provided different enforcement mechanisms for its bill of rights provisions and for its reporting and disclosure provisions. The bill of rights could be enforced by any aggrieved person, while the reporting and disclosure provisions were enforceable only through action by the Secretary of Labor. H.R. 8342, 86th Cong., 1st Sess., §§ 102, 210 (1959); II NLRB, Legislative History of the LMRDA at 1693-1702. The LMRDA as enacted contained the different enforcement mechanisms as developed in both the House and the Senate for the bill of rights provisions and the reporting and disclosure provisions. LMRDA §§ 102, 210, 29 U.S.C. §§ 412, 440 (1976). The particular consideration given by Congress to who should enforce the different provisions of the LMRDA leads us to the conclusion that Congress quite clearly decided that only the Secretary of Labor should be able to enforce section 203(b)(1) of the Act. Even if the unions are intended beneficiaries of section 203(b)(1), we have “