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4,282,876 | 541,714 | 2015-06-29 | United States Court of Appeals for the Second Circuit | CarVal UK Ltd. v. Giddens ex rel. SIPA Liquidation of Lehman Bros. (In re Lehman Bros.) | CarVal UK Ltd. v. Giddens ex rel. SIPA Liquidation of Lehman Bros. (In re Lehman Bros.), 791 F.3d 277 (2015) | 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_18 | a business contraction [in the securities industry] that led to the failure or instability of a significant number of brokerage firms. | Doral promptly objected to the Trustee’s denial, but shortly thereafter transferred its claims to CVF Lux Master S.a.r.l. pursuant to Federal Rule of Bankruptcy Procedure 3001. CVF Lux Master S.a.r.l. is managed by CarVal Investors UK Limited (“CarVal”), the appellant in this case.
On June 25, 2013, the bankruptcy court (Peck, BJc. J.) affirmed the Trustee’s determination that the repos did not make Doral or CarVal a customer under SIPA. In re Lehman Bros. Inc., 492 B.R. 379 (Bankr. S.D.N.Y.2013). CarVal appealed the bankruptcy court’s decision to the district court. On February 26, 2014, the district court (Cote, J.) affirmed the bankruptcy court. In re Lehman Bros. Inc., 506 B.R. 346 (S.D.N.Y.2014).
DISCUSSION
This appeal turns on a single issue: was Doral a “customer” of Lehman for purposes of SIPA? If Doral was a customer of Lehman, then under SIPA the appellant is entitled to the prompt return of any property that Lehman was holding on Doral’s behalf — i.e., the securities that Lehman never resold to Doral as required by the repurchase agreements, less the contractual repurchase price. Conversely, if Doral was not a customer of Lehman, then the SIPA door is closed, and the appellant is relegated to pursuing a claim for those unreturned securities in the ordinary course of Lehman’s bankruptcy proceedings. We begin our analysis of this question by first reviewing the principles articulated by our SIPA caselaw. We then turn to how these principles treat repurchase agreements. We conclude by. addressing (1) the appellant’s reliance on Matter of Bevill, Bresler & Schulman Asset Mgmt. Corp. (Cohen v. Army Moral Support Fund), 67 B.R. 557 (D.N.J.1986), and (2) the appellant’s contention that Congress spoke to the treatment of repos in various statutes enacted since SIPA’s passage. The Securities Investor Protection Act of 1970
Congress enacted SIPA in 1970 in response to “ |
4,282,876 | 541,714 | 2015-06-29 | United States Court of Appeals for the Second Circuit | CarVal UK Ltd. v. Giddens ex rel. SIPA Liquidation of Lehman Bros. (In re Lehman Bros.) | CarVal UK Ltd. v. Giddens ex rel. SIPA Liquidation of Lehman Bros. (In re Lehman Bros.), 791 F.3d 277 (2015) | 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_29 | situation ... threatened a ‘domino effect’ involving otherwise solvent brokers that had substantial open transactions with firms that failed. | ” Sec. Investor Prot. Corp. v. Barbour, 421 U.S. 412, 415, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975). These failures sent shockwaves through the securities market as investors who had handed their assets over to broker-dealers suddenly lost access to their property. Existing bankruptcy safeguards did not adequately protect investors because investor assets were frequently commingled with the broker-dealer’s other assets, and thus would be tied up for years in extended bankruptcy proceedings. As more and more investors lost access to assets they had previously thought safe, the “situation... threatened a ‘domino effect’ involving otherwise solvent brokers that had substantial open transactions with firms that failed. |
4,282,876 | 541,714 | 2015-06-29 | United States Court of Appeals for the Second Circuit | CarVal UK Ltd. v. Giddens ex rel. SIPA Liquidation of Lehman Bros. (In re Lehman Bros.) | CarVal UK Ltd. v. Giddens ex rel. SIPA Liquidation of Lehman Bros. (In re Lehman Bros.), 791 F.3d 277 (2015) | 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 | to arrest this process, restore investor confidence in the capital markets, and upgrade the financial responsibility requirements for registered brokers and dealers. |
SIPA was designed “ |
6,501,745 | 541,714 | 1991-07-16 | United States Bankruptcy Court for the Northern District of Oklahoma | P. David Newsome v. Culp (In re Fitzgerald, De Arman & Roberts, Inc.) | P. David Newsome v. Culp (In re Fitzgerald, De Arman & Roberts, Inc.), 129 B.R. 652 (1991) | 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 | upgrade the financial responsibility requirements for registered brokers and dealers, |
The activities of SIPC and its Trustees are meant “to further the congressionally-mandated purpose of protecting the investors, who placed their assets with [the bro ker], and the SIPC, which insured those investors,” in order to “vindicate important public interests,” In re Application of Executive Securities Corp., 702 F.2d 406, 410 (2d Circ.1983). Most of the above-cited cases emphasize SIPC’s role as liquidator rather than as regulator. SIPA and SIPC are intended, not merely to provide a mechanism for winding up failed brokers, but to “ |
6,115,002 | 541,714 | 1988-03-15 | United States District Court for the District of New Jersey | Hill v. Spencer Savings & Loan Ass'n (In re Bevill, Bresler & Schulman, Inc.) | Hill v. Spencer Savings & Loan Ass'n (In re Bevill, Bresler & Schulman, Inc.), 83 B.R. 880 (1988) | 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 | the mere filing of an action predicated upon allegations of financial insecurity might often prove fatal | United States v. Fields, 783 F.2d 1382, 1384 (9th Cir.1986).
SIPA envisions an orderly liquidation of the debtor, and equitable treatment of customers. See, e.g., Matter of Bevill, Bresler & Schulman Inc., 59 B.R. 353 (Bankr.D.N.J.1986). The relation back provision of 15 U.S.C. section 78lll(1) is, in part, an attempt by Congress to preclude the race to the broker-dealer that might otherwise occur when customers become concerned for the safety of their securities.
Certain events involving a broker-dealer obviously result in customer concern for the safety of securities, even though the securities are held in safekeeping. See, e.g., Securities Investor Protection Corporation v. Barbour, 421 U.S. 412, 422-23, 95 S.Ct. 1733, 1739, 44 L.Ed.2d 263 (1975) (“ |
1,615,517 | 405,228 | 1998-11-03 | United States Court of Appeals for the District of Columbia Circuit | National Ass'n of Manufacturers v. Department of Labor | National Ass'n of Manufacturers v. Department of Labor, 159 F.3d 597 (1998) | 1997-06-13 | United States Court of Appeals for the District of Columbia Circuit | Maduka v. Meissner | Maduka v. Meissner, 114 F.3d 1240 (1997) | 405228_3 | A party has ‘prevailed’ if: (1) the party received a significant part of the relief it sought; and (2) the lawsuit was a catalytic, necessary or substantial factor in obtaining that result. | Id. § 2412(d)(2)(B)(ii). Thus, a court must grant an EAJA award: (1) for fees “incurred,” (2) by an eligible “party,” (3) who “prevails]” against the government, (4) unless the position of the government was “substantially justified,” or (5) unless “special circumstances” make an award unjust.
In the district court, the government opposed NAM’s request for fees on the second and fourth grounds: that NAM was not an eligible party because certain of its members, who the government said were the “real parties in interest” in the litigation, exceeded the statute’s net worth and employment ceilings; and that the government’s position in the litigation was substantially justified. See, e.g., Maduka v. Meissner, 114 F.3d 1240, 1241 (D.C.Cir.1997) (“ |
1,615,517 | 405,228 | 1998-11-03 | United States Court of Appeals for the District of Columbia Circuit | National Ass'n of Manufacturers v. Department of Labor | National Ass'n of Manufacturers v. Department of Labor, 159 F.3d 597 (1998) | 1997-06-13 | United States Court of Appeals for the District of Columbia Circuit | Maduka v. Meissner | Maduka v. Meissner, 114 F.3d 1240 (1997) | 405228_1 | the court finds that ... special circumstances make an award unjust. | Similarly, the evidence NAM “contends establishes that NAM... is the real party in interest” is nothing more than the absence of a fee or control arrangement — a point NAM also had already covered in its filed declaration. Because the government never sought any specific evidence calculated to unearth financing or control of the litigation by individual members of the association, and because it offers no reason to suspect any such evidence exists, we have no reason to look behind the associational form to determine NAM’s eligibility for a fee award.
A
The EAJA disqualifies an applicant from an award of fees if “the court finds that... special circumstances make an award unjust. |
11,159,462 | 405,228 | 2000-11-30 | United States District Court for the Central District of Illinois | Salem v. United States Immigration & Naturalization Service | Salem v. United States Immigration & Naturalization Service, 122 F. Supp. 2d 980 (2000) | 1997-06-13 | United States Court of Appeals for the District of Columbia Circuit | Maduka v. Meissner | Maduka v. Meissner, 114 F.3d 1240 (1997) | 405228_1 | special circumstances make an award unjust |
Salem has now asked the Court to award him attorney’s fees and costs, pursuant to the Equal Access to Justice Act, as a result of the Court’s September 1, 2000 Order remanding this case to the Commissioner of the INS. 28 U.S.C. § 2412. Defendants object to Salem’s motion, asserting that, although he is entitled to costs, Salem is not entitled to attorney’s fees because he is not yet a “prevailing party” and because their position was “substantially justified.”
II. ANALYSIS
The Equal Access to Justice Act allows a district court to award costs to a prevailing party against the United States. 28 U.S.C. § 2412(a). These costs include:
(1) Fees of the clerk and marshal; (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
28 U.S.C. § 1920. In addition, the Equal Access to Justice Act makes the United States liable for a prevailing party’s attorney’s fees. In order for a district court to award attorney’s fees pursuant to the Equal Access to Justice Act, the litigant must establish:
(1) that the claimant [is] a “prevailing party”; (2) that the Government’s position was not “substantially justified”; (3) that no “ |
11,159,462 | 405,228 | 2000-11-30 | United States District Court for the Central District of Illinois | Salem v. United States Immigration & Naturalization Service | Salem v. United States Immigration & Naturalization Service, 122 F. Supp. 2d 980 (2000) | 1997-06-13 | United States Court of Appeals for the District of Columbia Circuit | Maduka v. Meissner | Maduka v. Meissner, 114 F.3d 1240 (1997) | 405228_3 | [a] party has ‘prevailed’ if: (1) the party received a significant part of the relief it sought; and (2) the lawsuit was a catalytic, necessary or substantial factor, see Tucson Medical Center v. Sullivan, 947 F.2d 971, 982 (D.C.Cir.1991), in obtaining that result. ‘[T]he claimant must show that it is more probable than not that the government would not have performed the desired act absent the lawsuit.’ Public Citizen Health Research Group v. Young, 909 F.2d 546, 550 (D.C.Cir.1990). | Texas State Teachers Ass’n v. Garland Independent Sch. Dist., 489 U.S. 782, 789, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989), quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); see Shepard v. Sullivan, 898 F.2d 1267, 1271 (7th Cir.1990) (same); see also Maduka v. Meissner, 114 F.3d 1240, 1241 (D.C.Cir.1997) (explaining that “[a] party has ‘prevailed’ if: (1) the party received a significant part of the relief it sought; and (2) the lawsuit was a catalytic, necessary or substantial factor, see Tucson Medical Center v. Sullivan, 947 F.2d 971, 982 (D.C.Cir.1991), in obtaining that result. |
11,116,028 | 405,228 | 2001-02-13 | United States District Court for the District of Columbia | American Council of the Blind v. Washington Metropolitan Area Transit Authority | American Council of the Blind v. Washington Metropolitan Area Transit Authority, 133 F. Supp. 2d 66 (2001) | 1997-06-13 | United States Court of Appeals for the District of Columbia Circuit | Maduka v. Meissner | Maduka v. Meissner, 114 F.3d 1240 (1997) | 405228_0 | it is more probable than not that the government would not have performed the desired act absent the lawsuit. | ” Pis.’ Mem. at 17. This assertion, however, incorrectly states the catalyst test. To claim prevailing party status, a plaintiff cannot merely point to a defendant’s changed behavior before and after a lawsuit. Rather, the plaintiff must put forth supplemental evidence that supports a finding that a defendant changed its behavior in response to the lawsuit.
To prove that a lawsuit was a causal factor in the litigation, the plaintiff must show that “ |
972,806 | 405,228 | 2002-08-14 | United States Court of Appeals for the Ninth Circuit | Sung Hyun Sim v. Coultice | Sung Hyun Sim v. Coultice, 44 F. App'x 787 (2002) | 1997-06-13 | United States Court of Appeals for the District of Columbia Circuit | Maduka v. Meissner | Maduka v. Meissner, 114 F.3d 1240 (1997) | 405228_2 | the lawsuit was not a necessary or substantial factor in obtaining that result | ” Barrios v. Cal. Interscholastic Fed’n, 277 F.3d 1128, 1134 (9th Cir.2002) (quoting Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)). Here, there was no material alteration in the legal relationship between the parties achieved by any such agreement or order because it was the INS’s independent decision to approve the second 1-140 petition that precipitated the stipulated dismissal and resulting Ninth Circuit order, and neither the dismissal nor the order incorporated its terms or compelled compliance with them. See also Maduka v. Meissner, 114 F.3d 1240, 1241^42 (D.C.Cir.1997) (per curiam) (holding that an alien was not a “prevailing party” in a case in which he unsuccessfully petitioned for a visa, then filed an action in district court, and his petition was approved by the INS before the district court had issued a decision, because “ |
4,213,976 | 405,228 | 2014-01-23 | United States District Court for the District of Columbia | Guerrero-Smith v. Solis | Guerrero-Smith v. Solis, 10 F. Supp. 3d 154 (2014) | 1997-06-13 | United States Court of Appeals for the District of Columbia Circuit | Maduka v. Meissner | Maduka v. Meissner, 114 F.3d 1240 (1997) | 405228_0 | A party has ‘prevailed’ if (1) the party received a significant part of the relief it sought; .and (2) the lawsuit was a catalytic, necessary or substantial factors, see Tucson Medical Center v. Sullivan, 947 F.2d 971, 982 (D.C.Cir.1991), in obtaining that result. ‘[T]he claimant must show that it is more probable than not that the government would not have performed the desired act absent the lawsuit.’ Public Citizen Health Research Group v. Young, 909 F.2d 546, 550 (D.C.Cir.1990). | Defendant argues that Plaintiff is not a “prevailing party” because the Court has not ruled in Plaintiff’s favor. Plaintiff argues in response that Defendant’s action in acting upon Plaintiffs workers’ compensation claims was in response to Plaintiffs lawsuit, and as such, Plaintiff has “prevailed.
“A party has ‘prevailed’ if (1) the party received a significant part of the relief it sought;.and (2) the lawsuit was a catalytic, necessary or substantial factors, see Tucson Medical Center v. Sullivan, 947 F.2d 971, 982 (D.C.Cir.1991), in obtaining that result. |
4,063,286 | 1,000,976 | 2014-03-12 | United States Court of Appeals for the Eleventh Circuit | In re Moody | In re Moody, 755 F.3d 891 (2014) | 1997-11-10 | United States Court of Appeals for the Eleventh Circuit | Delta Air Lines, Inc. v. Sasser | Delta Air Lines, Inc. v. Sasser, 127 F.3d 1296 (1997) | 1000976_2 | interest that could be substantially affected by the outcome. | PER CURIAM:
We deny the petition for rehearing, but vacate our original opinion in this case and substitute the following opinion in its place.
Walter Leroy Moody, Jr., convicted under federal and state law for the 1989 murder of Eleventh Circuit Judge Robert S. Vance, has petitioned for a writ of mandamus ordering the recusal of District Judge L. Scott Coogler, who was randomly assigned to hear his federal petition for a writ of habeas corpus, see 28 U.S.C. § 2254, and directing the transfer of this matter to a district judge outside the bounds of the Eleventh Circuit. After filing his mandamus petition, Mr. Moody has separately moved for the recusal of all judges on this court, requesting that we likewise transfer his mandamus petition to a different circuit. According to Mr. Moody, allowing any such judges to rule, on his habeas corpus petition would create an appearance of partiality within the meaning of 28 U.S.C. § 455(a), and also violate § 455(b)(4) by allowing them to sit on a case in which they have an “ |
4,063,286 | 1,000,976 | 2014-03-12 | United States Court of Appeals for the Eleventh Circuit | In re Moody | In re Moody, 755 F.3d 891 (2014) | 1997-11-10 | United States Court of Appeals for the Eleventh Circuit | Delta Air Lines, Inc. v. Sasser | Delta Air Lines, Inc. v. Sasser, 127 F.3d 1296 (1997) | 1000976_0 | [a]ny ... judge ... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. |
All district judges in the Northern District of Georgia also recused themselves, and as a result Chief Justice Rehnquist designated Judge Edward Devitt from the District of Minnesota to preside over Mr. Moody’s case. Judge Devitt granted Mr. Moody’s motion for a change of venue, and moved the trial to St. Paul. See United States v. Moody, 762 F.Supp. 1485 (N.D.Ga.1991) (Moody III). After a jury convicted Mr. Moody of 71 counts, Judge Devitt sentenced him to seven life terms and 400 years, to be served concurrently with each other and consecutively to a 15-year sentence imposed in the Middle District of Georgia on separate perjury and obstruction charges related to Mr. Moody’s attempts to overturn his 1972 conviction. On appeal, the Eleventh Circuit — with a panel comprised of three judges from the Fourth Circuit — affirmed Mr. Moody’s convictions and sentences in Moody V.
The State of Alabama then charged Mr. Moody with the capital murder of Judge Vance. A jury found Mr. Moody guilty, and the state trial court, following the jury’s 11-1 recommendation, sentenced him to death. The Alabama Court of Criminal Appeals affirmed, and the Alabama Supreme Court denied review. See Moody v. State, 888 So.2d 532 (Ala.Crim.App.2003), writ denied, 888 So.2d 605 (Ala.2004) (Moody VI). When his attempt to obtain post-conviction relief in the Alabama courts failed, see Moody v. State, 95 So.3d 827 (Ala.Crim.App.2011) (Moody VII), Mr. Moody filed a petition for a writ of habeas corpus in the Northern District of Alabama.
II
In relevant part, 28 U.S.C. § 455(a) provides that “[a]ny... judge... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. |
4,063,286 | 1,000,976 | 2014-03-12 | United States Court of Appeals for the Eleventh Circuit | In re Moody | In re Moody, 755 F.3d 891 (2014) | 1997-11-10 | United States Court of Appeals for the Eleventh Circuit | Delta Air Lines, Inc. v. Sasser | Delta Air Lines, Inc. v. Sasser, 127 F.3d 1296 (1997) | 1000976_1 | any ... interest that could be substantially affected by the outcome of the proceeding. |
Under § 455(b)(4), recusal is required whenever a judge has “any... interest that could be substantially affected by the outcome of the proceeding. |
4,063,286 | 1,000,976 | 2014-03-12 | United States Court of Appeals for the Eleventh Circuit | In re Moody | In re Moody, 755 F.3d 891 (2014) | 1997-11-10 | United States Court of Appeals for the Eleventh Circuit | Delta Air Lines, Inc. v. Sasser | Delta Air Lines, Inc. v. Sasser, 127 F.3d 1296 (1997) | 1000976_1 | any ... interest that could substantially be affected | The phrase “any... interest that could substantially be affected” is not statutorily defined, and “it is not easy to conclude what [it] means. |
4,063,286 | 1,000,976 | 2014-03-12 | United States Court of Appeals for the Eleventh Circuit | In re Moody | In re Moody, 755 F.3d 891 (2014) | 1997-11-10 | United States Court of Appeals for the Eleventh Circuit | Delta Air Lines, Inc. v. Sasser | Delta Air Lines, Inc. v. Sasser, 127 F.3d 1296 (1997) | 1000976_1 | interest that could be substantially affected by the outcome of the proceeding |
B
Mr. Moody also contends that all judges currently sitting on the Eleventh Circuit are part of the “victim class” for the crimes of which he was convicted, and must recuse themselves because they have an “ |
4,063,286 | 1,000,976 | 2014-03-12 | United States Court of Appeals for the Eleventh Circuit | In re Moody | In re Moody, 755 F.3d 891 (2014) | 1997-11-10 | United States Court of Appeals for the Eleventh Circuit | Delta Air Lines, Inc. v. Sasser | Delta Air Lines, Inc. v. Sasser, 127 F.3d 1296 (1997) | 1000976_1 | any ... interest that could be substantially affected by the outcome. |
B
Mr. Moody also contends that all judges currently sitting on the Eleventh Circuit are part of the “victim class” for the crimes of which he was convicted, and must recuse themselves because they have an “interest that could be substantially affected by the outcome of the proceeding” within the meaning of § 455(b)(4).
As we have noted, there is little precedent on the meaning of the phrase “any... interest that could be substantially affected by the outcome. |
4,085,479 | 1,000,976 | 2014-01-10 | United States Court of Appeals for the Eleventh Circuit | In re Moody | In re Moody, 739 F.3d 1289 (2014) | 1997-11-10 | United States Court of Appeals for the Eleventh Circuit | Delta Air Lines, Inc. v. Sasser | Delta Air Lines, Inc. v. Sasser, 127 F.3d 1296 (1997) | 1000976_2 | interest that could be substantially affected by the outcome. | PER CURIAM:
Walter Leroy Moody, Jr., convicted under federal and state law for the 1989 murder of Eleventh Circuit Judge Robert S. Vance, has petitioned for a writ of mandamus ordering the recusal of District Judge L. Scott Coogler, who was randomly assigned to hear his federal petition for a writ of habeas corpus, see 28 U.S.C. § 2254, and directing the transfer of this matter to a district judge outside the bounds of the Eleventh Circuit. After filing his mandamus petition, Mr. Moody has separately moved for the recusal of all judges on this court, requesting that we likewise transfer his mandamus petition to a different circuit. According to Mr. Moody, allowing any such judges to rule on his habeas corpus petition would create an appearance of partiality within the meaning of 28 U.S.C. § 455(a), and also violate § 455(b)(4) by allowing them to sit on a case in which they have an “ |
4,085,479 | 1,000,976 | 2014-01-10 | United States Court of Appeals for the Eleventh Circuit | In re Moody | In re Moody, 739 F.3d 1289 (2014) | 1997-11-10 | United States Court of Appeals for the Eleventh Circuit | Delta Air Lines, Inc. v. Sasser | Delta Air Lines, Inc. v. Sasser, 127 F.3d 1296 (1997) | 1000976_0 | [a]ny ... judge ... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. |
All district judges in the Northern District of Georgia also recused themselves, and as a result Chief Justice Rehnquist designated Judge Edward Devitt from the District of Minnesota to preside over Mr. Moody’s case. Judge Devitt granted Mr. Moody’s motion for a change of venue, and moved the trial to St. Paul. See United States v. Moody, 762 F.Supp. 1485 (N.D.Ga.1991) (Moody III). After a jury-convicted Mr. Moody of 71 counts, Judge Devitt sentenced him to seven life terms and 400 years, to be served concurrently with each other and consecutively to a 15-year sentence imposed in the Middle District of Georgia on separate perjury and obstruction charges related to Mr. Moody’s attempts to overturn his 1972 conviction. On appeal, the Eleventh Circuit — with a panel comprised of three judges from the Fourth Circuit — affirmed Mr. Moody’s convictions and sentences in Moody V.
The State of Alabama then charged Mr. Moody with the capital murder of Judge Vance. A jury found Mr. Moody guilty, and the state trial court, following the jury’s 11-1 recommendation, sentenced him to death. The Alabama Court of Criminal Appeals affirmed, and the Alabama Supreme Court denied review. See Moody v. State, 888 So.2d 532 (Ala.Crim. App.2003), writ denied, 888 So.2d 605 (Ala. 2004) {Moody VI). When his attempt to obtain post-conviction relief in the Alabama courts failed, see Moody v. State, 95 So.3d 827 (Ala.Crim.App.2011) {Moody VII), Mr. Moody filed a petition for a writ of habeas corpus in the Northern District of Alabama.
II
In relevant part, 28 U.S.C. § 455(a) provides that “[a]ny... judge... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. |
4,085,479 | 1,000,976 | 2014-01-10 | United States Court of Appeals for the Eleventh Circuit | In re Moody | In re Moody, 739 F.3d 1289 (2014) | 1997-11-10 | United States Court of Appeals for the Eleventh Circuit | Delta Air Lines, Inc. v. Sasser | Delta Air Lines, Inc. v. Sasser, 127 F.3d 1296 (1997) | 1000976_1 | any ... interest that could be substantially affected by the outcome of the proceeding. |
Under § 455(b)(4), recusal is required whenever a judge has “any... interest that could be substantially affected by the outcome of the proceeding. |
4,085,479 | 1,000,976 | 2014-01-10 | United States Court of Appeals for the Eleventh Circuit | In re Moody | In re Moody, 739 F.3d 1289 (2014) | 1997-11-10 | United States Court of Appeals for the Eleventh Circuit | Delta Air Lines, Inc. v. Sasser | Delta Air Lines, Inc. v. Sasser, 127 F.3d 1296 (1997) | 1000976_1 | any ... interest that could substantially be affected | The phrase “any... interest that could substantially be affected” is not statutorily defined, and “it is not easy to conclude what [it] means. |
4,085,479 | 1,000,976 | 2014-01-10 | United States Court of Appeals for the Eleventh Circuit | In re Moody | In re Moody, 739 F.3d 1289 (2014) | 1997-11-10 | United States Court of Appeals for the Eleventh Circuit | Delta Air Lines, Inc. v. Sasser | Delta Air Lines, Inc. v. Sasser, 127 F.3d 1296 (1997) | 1000976_1 | interest that could be substantially affected by the outcome of the proceeding |
B
Mr. Moody also contends that all judges currently sitting on the Eleventh Circuit are part of the “victim class” for the crimes of which he was convicted, and must recuse themselves because they have an “ |
4,085,479 | 1,000,976 | 2014-01-10 | United States Court of Appeals for the Eleventh Circuit | In re Moody | In re Moody, 739 F.3d 1289 (2014) | 1997-11-10 | United States Court of Appeals for the Eleventh Circuit | Delta Air Lines, Inc. v. Sasser | Delta Air Lines, Inc. v. Sasser, 127 F.3d 1296 (1997) | 1000976_1 | any ... interest that could be substantially affected by the outcome. |
B
Mr. Moody also contends that all judges currently sitting on the Eleventh Circuit are part of the “victim class” for the crimes of which he was convicted, and must recuse themselves because they have an “interest that could be substantially affected by the outcome of the proceeding” within the meaning of § 455(b)(4).
As we have noted, there is little precedent on the meaning of the phrase “any... interest that could be substantially affected by the outcome. |
9,398,050 | 1,356,233 | 2001-12-18 | United States Bankruptcy Court for the Eastern District of Virginia | In re Computer Learning Centers, Inc. | In re Computer Learning Centers, Inc., 272 B.R. 891 (2001) | 1998-06-23 | United States Bankruptcy Court for the Western District of New York | In re Wake | In re Wake, 222 B.R. 35 (1998) | 1356233_0 | To properly perform the duties necessary for an orderly and efficient administration, a trustee is expected at all times to exercise sound business judgment, especially when incurring expenses to be paid from the assets of the estate. | The court was satisfied that the combination of the trustee’s bankruptcy expertise and Mr. Goldstein’s expertise, coupled with the Department of Education’s own self-interest and the best interests of the students enrolled in CLC classes at the time, resulted in the remarkable achievement. During that period, there was little time to make a further application to increase the budgeted compensation. All of the parties were working feverishly to sell the schools, which were, effectively, perishable commodities. The budgeted amount would have been increaséd had a motion been made. To have denied the fee application would have penalized special counsel and required additional unnecessary work that would have had a fairly predicable result. Given all the circumstances, particularly the lack of time and the propriety of the relief that should have been requested, the application, with only minor adjustments, was approved.
All substantial organizations operate from a budget. The budget making process requires management to look forward to. determine where they would like to go. It establishes the means of how the organization will get there. During the year, the budget provides benchmarks and permits a fair evaluation of where the organization has been and where it has yet to go. The budgeted amount for Dow Lohnes was intended to achieve these objectives as well. Both the trustee and special counsel must be aware of the budget limits if they are to be effective. Counsel needs to be sensitive to the progress and expense of the work undertaken and keep the trustee advised particularly as he approaches the limit in the employment order. “ |
4,134,778 | 1,358,764 | 2012-03-26 | United States Court of Appeals for the Ninth Circuit | Poynter v. United States | Poynter v. United States, 474 F. App'x 495 (2012) | 1998-07-07 | United States Court of Appeals for the Eighth Circuit | U.S. Department of Education v. Scott | U.S. Department of Education v. Scott, 147 F.3d 788 (1998) | 1358764_0 | first became due more than 7 years ... before the filing of the [bankruptcy] petition. | MEMORANDUM
Eric Poynter filed a Chapter 7 bankruptcy petition on October 28, 1993. In March 1994, he received a discharge. In September 2008, Poynter reopened his bankruptcy proceedings. He sought a declaration that his discharge covered two 1985 educational loans held by the Department of Education. The bankruptcy court ruled the loans were not dischargeable, and the district court affirmed. We have jurisdiction under 28 U.S.C. § 158(d)(1). We affirm.
We review de novo an appeal from the district court’s decision on appeal from the bankruptcy court. In re JTS Corp., 617 F.3d 1102, 1109 (9th Cir.2010). We review the bankruptcy court’s findings of fact for clear error and its conclusions of law de novo.
When Poynter filed for bankruptcy, his student loans were dischargeable if they “first became due more than 7 years... before the filing of the [bankruptcy] petition. |
4,146,557 | 1,358,764 | 2012-03-26 | United States Court of Appeals for the Ninth Circuit | Poynter v. United States | Poynter v. United States, 474 F. App'x 495 (2012) | 1998-07-07 | United States Court of Appeals for the Eighth Circuit | U.S. Department of Education v. Scott | U.S. Department of Education v. Scott, 147 F.3d 788 (1998) | 1358764_0 | first became due more than 7 years ... before the filing of the [bankruptcy] petition. | MEMORANDUM
Eric Poynter filed a Chapter 7 bankruptcy petition on October 28, 1993. In March 1994, he received a discharge. In September 2008, Poynter reopened his bankruptcy proceedings. He sought a declaration that his discharge covered two 1985 educational loans held by the Department of Education. The bankruptcy court ruled the loans were not dischargeable, and the district court affirmed. We have jurisdiction under 28 U.S.C. § 158(d)(1). We affirm.
We review de novo an appeal from the district court’s decision on appeal from the bankruptcy court. In re JTS Corp., 617 F.3d 1102, 1109 (9th Cir.2010). We review the bankruptcy court’s findings of fact for clear error and its conclusions of law de novo.
When Poynter filed for bankruptcy, his student loans were dischargeable if they “first became due more than 7 years... before the filing of the [bankruptcy] petition. |
11,538,332 | 1,358,764 | 1999-04-19 | United States Bankruptcy Court for the Northern District of Mississippi | Seay v. First State Bank (In re Seay) | Seay v. First State Bank (In re Seay), 237 B.R. 896 (1999) | 1998-07-07 | United States Court of Appeals for the Eighth Circuit | U.S. Department of Education v. Scott | U.S. Department of Education v. Scott, 147 F.3d 788 (1998) | 1358764_1 | any applicable suspension of the repayment period. | Pursuant to the terms of the loan contracts, repayment of each loan was to begin nine months after the date the debtor ceased to carry at least one-half a normal full-time academic work load. The parties have stipulated that the debtor was enrolled as a full-time student until May, 1983. Accordingly, the first installment payment on the original notes would have been due in February, 1984. However, the three original loans were consolidated, and a new loan contract was entered into on March 8, 1984. The terms of the consolidated loan reflect that the first payment was due on April 8, 1984. Although there is only a variance of two months from the date when the first installment was due on the original loans as compared to the due date of the first installment on the consolidated loan, the court must determine which date should be used as a starting point for the seven year period set forth in § 523(a)(8)(A).
The Fourth and Seventh Circuits have held that the execution of a consolidated student loan begins a new seven year period for dischargeability purposes. See, Hiatt v. Indiana State Student Assistance Commission, 36 F.3d 21 (7th Cir.1994); and United States v. McGrath, 143 B.R. 820 (D.Md.1992) aff'd, 8 F.3d 821, 1993 WL 438823 (4th Cir.1993). Although these decisions have been questioned by Colliers on Bankruptcy as being an impermissible expansion of the seven year period, this court finds the reasoning in the opinions to be persuasive. Accordingly, the operative date for the beginning of the seven year dischargeability period should begin on the due date of the first installment payment for the consolidated loan.
The running of the seven year period can be “tolled” by “ |
943,232 | 11,886,505 | 2006-01-17 | United States Bankruptcy Court for the Western District of Missouri | In re Heerlein | In re Heerlein, 336 B.R. 148 (2006) | 1997-11-28 | United States Bankruptcy Court for the Eastern District of Missouri | Thomas v. Beneficial of Missouri (In re Thomas) | Thomas v. Beneficial of Missouri (In re Thomas), 215 B.R. 873 (1997) | 11886505_0 | garnished funds are owned by a judgment debtor until the court orders the funds paid over to a judgment creditor. | Ford, 29 B.R. at 366 (citing Rule 90.17, Missouri Rules of Civil Procedure and Shanks v. Williams, et al., 621 S.W.2d 372 (Mo.Ct.App.1981)).
Similarly, in In re Thomas, 215 B.R. 873, 875 (Bankr.E.D.Mo.1997), debtor claimed an exemption in garnished funds and the court stated that “ |
10,531,678 | 655,876 | 1990-07-10 | United States Court of Appeals for the Fifth Circuit | Heavin v. Mobil Oil Exploration & Producing Southeast, Inc. | Heavin v. Mobil Oil Exploration & Producing Southeast, Inc., 913 F.2d 178 (1990) | 1988-11-09 | United States Court of Appeals for the Fifth Circuit | Davidson v. Enstar Corp. | Davidson v. Enstar Corp., 860 F.2d 167 (1988) | 655876_0 | language in the [joint operating] agreement could not alter the liabilities fixed by Congress and the language should be disregarded. | However, when the actual relationship between the parties to the joint operating agreement is clear for purposes of establishing rights under the LHWCA, “ |
11,710,842 | 662,062 | 1998-09-01 | United States Court of Appeals for the Fifth Circuit | United States v. Hickman | United States v. Hickman, 151 F.3d 446 (1998) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_4 | the forcible restraint of the victim such as by being tied, bound, or locked up. | The specific “compensated witness” instruction that McCray argues he is entitled to applies to witnesses who are paid a fee for their testimony, not to those who, like Mouton, receive a reduced sentence. See United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir.1987). We therefore conclude that the district court’s instruction cautioning the jury about Mouton’s credibility was not plain error.
VIII. SUBJECT MATTER JURISDICTION OVER STATE COURT EVIDENCE
Limbrick argues that the federal courts lacked jurisdiction to try him because they relied on evidence collected by the State of Texas in a capital murder investigation. He cites Palmer v. Texas, 212 U.S. 118, 29 S.Ct. 230, 53 L.Ed. 435 (1909), which stands for the proposition that federal courts cannot interfere with property subject to state court jurisdiction. Here, the state investigated Limbrick, but dropped its charges against him in deference to the federal proceeding. We conclude that the federal court properly exercised jurisdiction over Limbrick’s crime.
IX. SENTENCING ISSUES
a. Standard of review
We examine factual findings subject to the “clearly erroneous” standard mandated by 18 U.S.C. § 3742(e), and accord great deference to the trial judge’s application of the sentencing guidelines. See United States v. Humphrey, 7 F.3d 1186, 1189 (5th Cir.1993). However, a sentence imposed as a result of an incorrect application of the sentencing guidelines must be reversed. Id.
b. Enhancements for Restraint and Abduction of Victims
The district court increased Chopane’s base offense level by two levels because he had “physically restrained” victims during the Subway robbery. See U.S.S.G. § 2B3.1(b)(4)(B). Hickman’s base offense level was increased four levels because he “abducted” victims during the robberies of AutoZone and Church’s Chicken. See U.S.S.G. § 2B3.1(b)(4)(A). Chopane and Hickman objected to the enhancements at their respective sentencings and now press for relief on appeal.
U.S.S.G. § 2B3.1(b)(4) provides:
(4) (A)
“Physically restrained” is defined earlier in the Guidelines as “ |
11,710,842 | 662,062 | 1998-09-01 | United States Court of Appeals for the Fifth Circuit | United States v. Hickman | United States v. Hickman, 151 F.3d 446 (1998) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_4 | such as being tied, bound or locked up. | U.S.S.G. § 1B1.1, comment, (n.l(a)).
Chopane argues that he never tied, bound, or locked up the victims of the robberies. Rather, he contends that at best the evidence only demonstrated that he “tapped” a Subway employee on the shoulder with a gun. However, the district court reasoned that Chopane’s pointing of a firearm at the employee restricted her movement.
The resolution of Chopane’s sentencing challenge turns on the interpretation of the definition of “physical restraint. The Guidelines define the term to include acts “ |
11,583,997 | 662,062 | 1999-07-29 | United States Court of Appeals for the Third Circuit | United States v. Copenhaver | United States v. Copenhaver, 185 F.3d 178 (1999) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_1 | if any person was physically restrained to facilitate commission of the offense. |
So while the Third Circuit has not squarely addressed the two-point enhancement, there is ample authority and all going in one direction which would hold that the enhancement is appropriate in this case, where the defendant and his co-defendant... were armed with a BB gun and that it appeared to be a semiautomatic pistol when they robbed the inn and where the victim was struck with a gun, was forced to his knees, made to crouch in the fireplace and then placed the fireplace screen— and where the fireplace screen was placed across the opening.
These actions clearly qualify as a physical restraint of the victim and for that reason, the enhancement is appropriate.
App. at 111-12.
The District Court therefore applied the two-level enhancement for “physical restraint” of the victim. This resulted in an adjusted offense level of 27 which, when combined with Copenhaver’s criminal history, led to a guidelines range of 120 to 150 months imprisonment. The District Court sentenced Copenhaver to 120 months imprisonment, five years of supervised release, and a special assessment of $200. Copenhaver timely appealed the sentence.
II.
DISCUSSION
The sole issue on appeal is whether Co-penhaver’s actions during the Historic Strasburg Inn robbery constitute “physical restraint” within the meaning of the Sentencing Guidelines. We have not addressed this issue.
Section 2B3.1(b)(4)(B) of the Sentencing Guidelines provides for a two-level increase “ |
11,583,997 | 662,062 | 1999-07-29 | United States Court of Appeals for the Third Circuit | United States v. Copenhaver | United States v. Copenhaver, 185 F.3d 178 (1999) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_3 | creates circumstances allowing the persons no alternative but compliance. |
Enhancement for “physical restraint” has been held applicable when the defendant “ |
11,583,997 | 662,062 | 1999-07-29 | United States Court of Appeals for the Third Circuit | United States v. Copenhaver | United States v. Copenhaver, 185 F.3d 178 (1999) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_1 | facilitate the commission of the offense. | United States v. Kirtley, 986 F.2d 285, 286 (8th Cir.1993); see also United States v. Thompson, 109 F.3d 639, 641 (9th Cir.1997); Jones, 32 F.3d at 1519; Doubet, 969 F.2d at 347. A defendant “physically restrains” his victims if he uses force to impede others from interfering with the commission of the offense. See United States v. Fisher, 132 F.3d 1327, 1329 (10th Cir.1997); Rosario, 7 F.3d at 321; Doubet, 969 F.2d at 347.
The Doubet case provides a close factual parallel to the case at bar. In Doubet, the defendant herded victims into an unlocked restroom in the back of a bank while pointing a sawed off shotgun at them, yelling death threats, and admonishing that an armed accomplice stood guard (although there was no actual accomplice). The district court applied the physical restraint enhancement, and the Court of Appeals for the Seventh Circuit affirmed, noting that the purpose of the enhancement is to punish criminals who use physical restraint to “ |
1,844,375 | 662,062 | 1994-09-22 | United States Court of Appeals for the Eleventh Circuit | United States v. Jones | United States v. Jones, 32 F.3d 1512 (1994) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_1 | if any person was physically restrained to facilitate commission of the offense or to facilitate escape. | Jones’s sentence for possession of a firearm is within that proviso because the maximum of his adjusted Guidelines range plus the five-year consecutive sentence is less than the maximum of his unadjusted Guidelines range. Thus, the applicable Guidelines range for the underlying offense absent such adjustment is used after subtracting the term,of imprisonment imposed under section 924(c) from the minimum and maximum of this range. U.S.S.G. § 2K2.4, comment, (n. 2) (Nov.1992).
Jones’s total offense level, including the five-point gun possession enhancement, was 34. His criminal history was V. The unadjusted Guidelines range for the robbery count was 235 to 293 months. If the five-point enhancement had been subtracted, his offense level would have been 29, yielding an adjusted Guidelines range of 140 to 175 months. Because the maximum of the adjusted Guidelines range plus the five-year consecutive sentence (175 months + 60 months = 235 months) was less than the maximum of Jones’s unadjusted Guidelines range (293 months), the applicable range in this case was derived by takmg the unadjusted range and subtracting 60 months from each end. Therefore, Jones’s applicable range was 175 (235 - 60) to 233 (293 - 60) months.
Consequently, Jones’s appropriate term of imprisonment would be a sentence.imposed for the underlying offense within the adjusted Guidelines range of 175 to 233 months, combined with the consecutive sixty-month sentence imposed under section 924(c). The district court sentenced Jones to 220 months of imprisonment for the underlying offense, within the adjusted 175 to 233 months Guidelines range. Therefore, Jones’s contention that the district court incorrectly applied sections 2B3.1(b)(2)(C) and 2K2.4 is invalid.
2. Under section 2B3.1(b)(4)(B) a two-level enhancement is applicable “ |
1,844,375 | 662,062 | 1994-09-22 | United States Court of Appeals for the Eleventh Circuit | United States v. Jones | United States v. Jones, 32 F.3d 1512 (1994) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_4 | the forcible restraint of the victim such as by being tied, bound, or locked up. | “Physically restrained” is defined as “ |
1,844,375 | 662,062 | 1994-09-22 | United States Court of Appeals for the Eleventh Circuit | United States v. Jones | United States v. Jones, 32 F.3d 1512 (1994) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_3 | creates circumstances allowing the persons no alternative but compliance. | United States v. Rosario, 7 F.3d 319, 320-21 (2d Cir.1993) (per curiam) (quoting United States v. Stokley, 881 F.2d 114, 116 (4th Cir.1989)); see United States v. Foppe, 993 F.2d 1444, 1452 (9th Cir.), cert. denied, — U.S. -, 114 S.Ct. 615, 126 L.Ed.2d 579 (1993); United States v. Doubet, 969 F.2d 341, 346 (7th Cir.1992); Arcoren v. United States, 929 F.2d 1235, 1246 (8th Cir.), cert. denied, — U.S. -, 112 S.Ct. 312, 116 L.Ed.2d 255 (1991); United States v. Roberts, 898 F. Both the Seventh and Eighth Circuits have held that a defendant physically restrains his victims if he “ |
3,663,872 | 662,062 | 2009-07-02 | United States Court of Appeals for the Eighth Circuit | United States v. Lee | United States v. Lee, 570 F.3d 979 (2009) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_1 | person was physically restrained to facilitate commission of the offense or to facilitate escape. | ”
A patron who was in an adjacent section of the post office during the robbery attempted to leave unnoticed, but Newsome confronted her outside. Newsome approached the woman with a handgun and tried to take her car keys. When she did not give Newsome her keys, he struck her in the back of the neck with his handgun, causing her to fall to the ground. Lee and Melton joined Newsome outside the post office, and the three men sped away in an automobile. Lee was subsequently interviewed by investigators and admitted his involvement in the robbery. Lee’s PSR recommended the application of (1) a two-level enhancement pursuant to U.S.S.G. § 2B3.1(b)(l) for taking property of a post office; (2) a six-level enhancement pursuant to U.S.S.G. § 2B3.1(b)(2)(B) for the use of a firearm; (3) a two-level enhancement pursuant to U.S.S.G. § 2B3.1(b)(3)(A) because a “victim sustained bodily injury”; and (4) a two-level enhancement pursuant to U.S.S.G. § 2B3.1(b)(4)(B) because a “ |
3,663,872 | 662,062 | 2009-07-02 | United States Court of Appeals for the Eighth Circuit | United States v. Lee | United States v. Lee, 570 F.3d 979 (2009) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_1 | if any person was physically restrained to facilitate commission of the offense or to facilitate escape. | ” Although Lee did not lodge a formal objection to the PSR’s allegation that he pointed his handgun at several persons and ordered employees. and patrons to the floor, he denied these allegations at his sentencing hearing. Lee’s remaining objections pertained solely to the application of the Guidelines to his conduct.
Lee’s argument that the district court erred in overruling his objections to the sentencing enhancements without requiring the government to present any evidence is without merit. Neither party disputes that (1) Lee participated in the post office robbery with Newsome and Melton, (2) Lee was armed with a handgun, (3) Melton pointed his gun at several persons and ordered employees and patrons to lie on the ground, and (4) New-some injured a patron trying to leave the post office by striking her with his handgun. These undisputed facts eviscerate Lee’s factual objection. Whether Lee personally assisted in the containment of witnesses, pointed a gun at specific persons, or ordered employees and patrons to lie on the ground is immaterial because his aecomplicés undisputedly committed these acts. Therefore, the district court did not err in overruling Lee’s objections to the sentencing enhancements without requiring the government to present any evidence. Section 2B3.1(b)(4)(B) of the Guidelines provides for a two-level enhancement “ |
3,663,872 | 662,062 | 2009-07-02 | United States Court of Appeals for the Eighth Circuit | United States v. Lee | United States v. Lee, 570 F.3d 979 (2009) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_4 | the forcible restraint of the victim such as by being tied, bound, or locked up. | “Physically restrained” is defined as “ |
3,859,993 | 662,062 | 2012-01-06 | United States Court of Appeals for the Sixth Circuit | United States v. Coleman | United States v. Coleman, 664 F.3d 1047 (2012) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_1 | person was physically restrained to facilitate commission of the offense | OPINION
COOK, Circuit Judge.
William Coleman pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). The district court sentenced him to 168 months’ imprisonment. On appeal, Coleman challenges the district court’s application of two enhancements under the United States Sentencing Guidelines. For the following reasons, we AFFIRM Coleman’s sentence.
I.
Coleman robbed a branch of Suntrust Bank in Memphis, Tennessee, brandishing a BB pistol that resembled — and that victims believed to be — a 9mm handgun. During the robbery, Coleman noticed Mike Sawyer, a bank employee, in an office adjacent to the bank lobby where Coleman stood. Coleman pointed the pistol at Sawyer and ordered him to come out of his office and sit on the floor in the lobby. Sawyer complied.
Coleman attempted to flee with the stolen money in a Ford Mustang driven by Trisha Jones. When the police approached the Mustang, Jones stopped and jumped out of the vehicle. Coleman then hopped into the driver’s seat and drove off, hitting one of the police cars and injuring an officer. After a brief foot chase, the officers apprehended Coleman.
A federal grand jury in the Western District of Tennessee charged Coleman with one count of bank robbery, in violation of 18 U.S.C. § 2113(a). At the sentencing hearing, Coleman acceded to the facts in the PSR but objected to two sentencing Guidelines calculations included in it: a two-point enhancement under § 2B3.1(b)(4)(B) (applicable where a “ |
3,859,993 | 662,062 | 2012-01-06 | United States Court of Appeals for the Sixth Circuit | United States v. Coleman | United States v. Coleman, 664 F.3d 1047 (2012) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_1 | if any person was physically restrained to facilitate commission of the offense or to facilitate escape. | ” Id.
Coleman does not challenge the substantive reasonableness of his sentence; rather, he challenges the procedural reasonableness of the district court’s application of two Guidelines enhancements. The district court did not solicit additional, post-sentencing objections, preserving all of Coleman’s procedural claims on appeal. See United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir.2004).
We review legal conclusions regarding application of the Guidelines de novo and factual findings in applying the Guidelines for clear error.
A.
Section 2B3.1(b)(4)(B) of the Guidelines provides for a two-level sentence enhancement “ |
3,859,993 | 662,062 | 2012-01-06 | United States Court of Appeals for the Sixth Circuit | United States v. Coleman | United States v. Coleman, 664 F.3d 1047 (2012) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_4 | the forcible restraint of the victim such as by being tied, bound, or locked up. | ” Section 1B1.1 defines “physically restrained” as “ |
5,716,097 | 662,062 | 2010-10-28 | United States Court of Appeals for the Eighth Circuit | United States v. Hutter | United States v. Hutter, 399 F. App'x 138 (2010) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_4 | the forcible restraint of the victim such as by being tied, bound, or locked up. | ” United States v. Zastrow, 534 F.3d 854, 855 (8th Cir.2008) (quotations omitted). In determining whether a sentencing court has committed procedural error, we review the court’s application of the Guidelines de novo and its findings of fact for clear error. United States v. Clarke, 564 F.3d 949, 955 (8th Cir.), cert. denied, - U.S. -, 130 S.Ct. 651, 175 L.Ed.2d 481 (2009).
Under the Guidelines, if any person is physically restrained to facilitate commission of a robbery or to facilitate escape, the base offense level is increased two levels. The application note to § 1B1.1(K) defines “physically restrained” as “ |
5,716,097 | 662,062 | 2010-10-28 | United States Court of Appeals for the Eighth Circuit | United States v. Hutter | United States v. Hutter, 399 F. App'x 138 (2010) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_3 | Under § 2B3.1(b)(4)(B), a defendant physically restrains persons if the defendant creates circumstances allowing the persons no alternative but compliance. | ” U.S.S.G. § 1B1.1 cmt. n. 1(K). Hutter claims the district court erred in applying this enhancement and that his resulting sentence was unreasonable as a result of its application. Hut-ter argues that if the facts here suffice (prodding someone from behind with a gun and directing them where to go), then virtually every robbery would involve “restraint,” because by its nature, robbery requires a certain degree of control over the victims’ freedom of movement. “ |
4,181,563 | 662,062 | 2014-08-14 | United States Court of Appeals for the Eighth Circuit | United States v. Dautovic | United States v. Dautovic, 763 F.3d 927 (2014) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_3 | [A] defendant physically restrains persons if the defendant creates circumstances allowing the persons no alternative but compliance. | Accordingly, we vacate the sentence and remand for resentencing.
We have considered and deny Dau-tovic’s cross-appeal. See United States v. Kirtley, 986 F.2d 285, 286 (8th Cir.1993) (per curiam) (“ |
4,057,229 | 662,062 | 2009-09-04 | United States Court of Appeals for the Eighth Circuit | United States v. Stevens | United States v. Stevens, 580 F.3d 718 (2009) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_1 | if any person was physically restrained to facilitate commission of the offense or to facilitate escape. | Under his view, the restraint was a “mental restraint created by the use of a weapon,” and such a restraint cannot amount to the physical restraint required for the specific offense characteristic at issue here. Alternatively, he argues that the enhancement is nonetheless inapplicable because it would amount to impermissible double punishment for the same conduct that supported his plea of guilty to the firearms charge.
Section 2B3.1 (b)(4)(B) provides for a two-level increase “ |
4,057,229 | 662,062 | 2009-09-04 | United States Court of Appeals for the Eighth Circuit | United States v. Stevens | United States v. Stevens, 580 F.3d 718 (2009) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_4 | means the forcible restraint of the victim such as by being tied, bound, or locked up. | Under the Guidelines, physically restrained “ |
4,057,229 | 662,062 | 2009-09-04 | United States Court of Appeals for the Eighth Circuit | United States v. Stevens | United States v. Stevens, 580 F.3d 718 (2009) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_2 | ordered the bank’s tellers to lie on the floor and tie their feet together, | ” USSG § 1B1.1, comment. (n.l(K)).
Stevens argues the victims were not “tied, bound, or locked up” because the vault door was not locked and the victims easily could have freed themselves. Our decisions in United States v. Kirtley, 986 F.2d 285 (8th Cir.1993), and United States v. Schau, 1 F.3d 729 (8th Cir.1993), dispose of Stevens’ first argument.
In Kirtley, the defendant entered a bank while armed with a gun and, in classic fashion, declared, “This is a hold up.” The defendant “ |
4,057,229 | 662,062 | 2009-09-04 | United States Court of Appeals for the Eighth Circuit | United States v. Stevens | United States v. Stevens, 580 F.3d 718 (2009) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_0 | by merely asking the tellers to tie their feet together with his materials, [he] did not physically restrain them within the meaning of § 2B3.1(b)(4)(B). | The defendant “ordered the bank’s tellers to lie on the floor and tie their feet together,” and he threatened to hurt them if they did not comply. Id. When the tellers complied, the defendant stole cash from a teller drawer and immediately left the bank. The defendant appealed application of the same sentencing enhancement at issue in this case, arguing that “ |
4,057,229 | 662,062 | 2009-09-04 | United States Court of Appeals for the Eighth Circuit | United States v. Stevens | United States v. Stevens, 580 F.3d 718 (2009) | 1993-02-24 | United States Court of Appeals for the Eighth Circuit | United States v. Kirtley | United States v. Kirtley, 986 F.2d 285 (1993) | 662062_3 | [u]nder § 2B3.1(b)(4)(B), a defendant physically restrains persons if the defendant creates circumstances allowing the persons no alternative but compliance. | ” We held that, “ |
538,872 | 548,100 | 1982-06-22 | United States Court of Appeals for the Third Circuit | Mobay Chemical Corp. v. Gorsuch | Mobay Chemical Corp. v. Gorsuch, 682 F.2d 419 (1982) | 1937-04-26 | Supreme Court of the United States | National Fertilizer Ass'n v. Bradley | National Fertilizer Ass'n v. Bradley, 301 U.S. 178 (1937) | 548100_0 | [I]t is too plain for argument that a manufacturer or vendor has no constitutional right to sell goods without giving to the purchaser fair information of what it is that is being sold. The right of a manufacturer to maintain secrecy as to his compounds and processes must be held subject to the right of the State, in the exercise of its police power and in promotion of fair dealing, to require that the nature of the product be fairly set forth. | Westinghouse Electric Corp. v. United States, 555 F.2d 82, 95 (3d Cir. 1977).
FIFRA’s disclosure provision is not a blanket authorization for the EPA to release confidential information. It limits public disclosure of test data to such matters as the effects of pesticides on human, animal and plant life. Information disclosing manufacturing or quality control processes, details of methods for testing inert ingredients deliberately added to pesticides, and the identity or quantity of such inert ingredients, may not be made public unless necessary for safety purposes. In this circumstance, a mandatory 30-day notification period allows the data submitter to institute an action in a district court to challenge the proposed disclosure.
The principle of limited disclosure that Congress applied in § 10 is neither startling nor new. Pesticides serve a useful and important function, but they also may present significant hazards. The public has a very real interest in their use and abuse and may justifiably assert a need to have sufficient information for protection. Congress balanced the understandable desire of the manufacturers to keep their experimental results confidential against the public interest in protecting the health of the community. Both positions were pressed vigorously before Congress, and it adopted a middle ground by providing for limited disclosure. This legislative action was well within constitutional boundaries and we sustain it here.
In Corn Products Refining Co. v. Eddy, 249 U.S. 427, 39 S.Ct. 325, 63 L.Ed. 689 (1919), the Supreme Court had no difficulty in rejecting a taking challenge to a statute requiring disclosure of the confidential formula of a food product.
“[I]t is too plain for argument that a manufacturer or vendor has no constitutional right to sell goods without giving to the purchaser fair information of what it is that is being sold. |
9,190,981 | 11,987,485 | 2003-01-15 | Supreme Court of the United States | Eldred v. Ashcroft | Eldred v. Ashcroft, 537 U.S. 186 (2003) | 1813-05 | United States Circuit Court for the District of Virginia | Evans v. Jordan | Evans v. Jordan, 8 F. Cas. 872 (1813) | 11987485_0 | Th[e] construction of the constitution which admits the renewal of a patent, is not controverted. A renewed patent... confers the same rights, with an original. | New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921) (Holmes, J.). History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime. As earlier recounted, see supra, at 194, the First Congress accorded the protections of the Nation’s first federal copyright statute to existing and future works alike. 1790 Act §1. Since then, Congress has regularly applied duration extensions to both existing and future copyrights. 1831 Act §§ 1, 16; 1909 Act §§23-24; 1976 Act §§302-303; 17 U. S. C. §§302-304.
Because the Clause empowering Congress to confer copyrights also authorizes patents, congressional practice with respect to patents informs our inquiry. We count it significant that early Congresses extended the duration of numerous individual patents as well as copyrights. See, e. g., Act of Jan. 7, 1808, ch. 6, 6 Stat. 70 (patent); Act of Mar. 3, 1809, ch. 35, 6 Stat. 80 (patent); Act of Feb. 7, 1815, ch. 36, 6 Stat. 147 (patent); Act of May 24, 1828, ch. 145, 6 Stat. 389 (copyright); Act of Feb. 11, 1830, ch. 13, 6 Stat. 403 (copyright); see generally Ochoa, Patent and Copyright Term Extension and the Constitution: A Historical Perspective, 49 J. Copyright Soc. 19 (2001). See Evans v. Jordan, 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.) (“Th[e] construction of the constitution which admits the renewal of a patent, is not controverted. |
11,708,923 | 11,976,676 | 1998-09-11 | United States Court of Appeals for the Ninth Circuit | Micro Star v. Formgen Inc. | Micro Star v. Formgen Inc., 154 F.3d 1107 (1998) | 1845-05 | United States Circuit Court for the District of Massachusetts | Emerson v. Davies | Emerson v. Davies, 8 F. Cas. 615 (1845) | 11976676_0 | [ejvery book in literature, science and art, borrows and must necessarily borrow, and use much which was well known and used before. | The game engine then goes to the source art library, finds the image of the scuba gear, and puts it in just the right place on the screen. The MAP file describes the level in painstaking detail, but it does not actually contain any of the copyrighted art itself; everything that appears on the screen actually comes from the art library. Think of the game’s audiovisual display as a paint-by-numbers kit. The MAP file might tell you to put blue paint in section number 565, but it doesn’t contain any blue paint itself; the blue paint comes from your palette, which is the low-tech analog of the art library, while you play the role of the game engine. When the player selects one of the N/I levels, the game engine references the N/I MAP files, but still uses the D/N-3D art library to generate the images that make up that level.
FormGen points out that a copyright holder enjoys the exclusive right to prepare derivative works based on D/N-3D. See 17 U.S.C. § 106(2) (1994). According to Form-Gen, the audiovisual displays generated when D/N-3D is run in conjunction with the N/I CD MAP files are derivative works that infringe this exclusivity. Is FormGen right? The answer is not obvious.
The Copyright Act defines a derivative work as
a work based upon one or more preexisting works, such as'a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.” The statutory language is hopelessly overbroad, however, for “ |
234,489 | 11,976,676 | 1994-03-07 | Supreme Court of the United States | Campbell v. Acuff-Rose Music, Inc. | Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) | 1845-05 | United States Circuit Court for the District of Massachusetts | Emerson v. Davies | Emerson v. Davies, 8 F. Cas. 615 (1845) | 11976676_1 | [i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before. | For as Justice Story explained, “[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. |
11,235,048 | 11,772,881 | 2000-09-13 | United States Court of Appeals for the Tenth Circuit | Atlantic Richfield Co. v. Farm Credit Bank of Wichita | Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138 (2000) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_6 | accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the non-moving party. | We likewise “ |
11,243,433 | 11,772,881 | 2000-08-04 | United States Court of Appeals for the Tenth Circuit | Joseph v. Wiles | Joseph v. Wiles, 223 F.3d 1155 (2000) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_9 | litigation ... must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation, | Id. at 553, 94 S.Ct. 756. The Court expanded this rule in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), to include putative class members who later seek to file independent actions. See id. at 353-54, 103 S.Ct. 2392 (statute of limitations remains tolled for all members of putative class until class certification is denied). In fact, Lampf states that the “litigation... must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation,” indicating that the commencement of the action is the event which triggers tolling. |
11,243,433 | 11,772,881 | 2000-08-04 | United States Court of Appeals for the Tenth Circuit | Joseph v. Wiles | Joseph v. Wiles, 223 F.3d 1155 (2000) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_5 | making the right to pursue individual claims meaningless. | In fact, Lampf states that the “litigation... must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation,” indicating that the commencement of the action is the event which triggers tolling. Lampf, 501 U.S. at 364, 111 S.Ct. 2773 (emphasis added).
Tolling the limitations period for class members while class certification is pending serves the purposes of Rule 23 of the Federal Rules of Civil Procedure governing class actions. Rule 23 encourages judicial economy by eliminating the need for potential class members to file individual claims. If all class members were required to file claims in order to insure the limitations period would be tolled, the point of Rule 23 would be defeated. We noted in Realmonte that the notice and opt-out provision of Rule 23(c)(2) would be irrelevant without tolling because the limitations period for absent class members would most likely expire, “ |
11,119,004 | 11,772,881 | 2001-01-12 | United States District Court for the Northern District of Texas | Prieto v. John Hancock Mutual Life Insurance | Prieto v. John Hancock Mutual Life Insurance, 132 F. Supp. 2d 506 (2001) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_9 | ‘must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation.’ | ” Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex.1998). Because Plaintiffs allege injury resulting from the purchase of the insurance policy in 1983, they were authorized to seek a judicial remedy at that time.
Claims under Rule 10b-5 “ ‘must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation. |
11,119,004 | 11,772,881 | 2001-01-12 | United States District Court for the Northern District of Texas | Prieto v. John Hancock Mutual Life Insurance | Prieto v. John Hancock Mutual Life Insurance, 132 F. Supp. 2d 506 (2001) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_9 | must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation, | Love, 230 F.3d at 773. The Rule 10b-5 claim “ |
200,799 | 11,772,881 | 2001-12-06 | United States District Court for the District of Wyoming | Nicodemus v. Union Pacific Corp. | Nicodemus v. Union Pacific Corp., 204 F.R.D. 479 (2001) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_2 | must demonstrate that there is.at least one question of law or fact common to the class. | Next, the Court would have to determine who the fee owner is, if it is not Union Pacific. Finally, this Court would have to conduct individualized hearings to determine the issue of consent. Therefore, the proposed definition is insufficient because it requires the Court to review the merits of the case in order to ascertain the class.
B. Rule 23(a)
Even if it were possible to craft a class definition that did not require inquiry into the merits and extensive factual inquiry, plaintiffs fail to satisfy the Rule 23 requirements.
1. Numerosity
One or more members of a class may sue or be sued as representative parties on behalf of all if the class is so numerous that joinder of all members is impracticable. See Fed.R.Civ.P. 23. Although the class size is the most important factor in determining impracticability of joinder, circuit courts have fashioned five other factors for district courts to consider: (1) judicial economy arising from avoiding multiple actions; (2) the geographic dispersion of the class members; (3) the financial resources of the class members; the ability of claimants to institute individual suits; (5) requests for prospective and in-junctive relief that could affect future class members. See 5 James Wm. Moore et al., Moores Federal Practice § 23.22[2] (3d ed.1999).
Considering the size geographic size of the proposed class it is possible that the number of qualifying class members would be in the thousands. Furthermore, the geographic scope of the class, the number of possible class members, and the fact that the putative class seeks injunctive relief supports a finding that joinder is impracticable. Therefore, the putative class would satisfy the numerosity prong of Rule 23.
2. Rather, plaintiffs “ |
200,799 | 11,772,881 | 2001-12-06 | United States District Court for the District of Wyoming | Nicodemus v. Union Pacific Corp. | Nicodemus v. Union Pacific Corp., 204 F.R.D. 479 (2001) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_2 | the claims or defenses of the representative parties [be] typical of the claims or defenses of the class. | Nicodemus Memorandum in Support of Certification at 13. According to the plaintiffs, Union Pacific does not dispute the common issues. Plaintiffs argue that Union Pacific has admitted that it entered into agreements with fiber optic cable companies to permit them to install the cable beneath its right-of-way and Union Pacific does not dispute that fiber optic eompa- nies paid for this right. See Answer, ¶¶ 16-17.
The Court finds that plaintiffs have demonstrated that their case revolves around a common nucleus of operative fact because the common question is whether Union Pacific had the right to convey interests in the subsurface of its rights-of-way. Therefore, this Court finds that the plaintiffs satisfied the “loose” commonality standard. Typicality
Rule 23(a)(3) requires that “ |
9,348,160 | 11,772,881 | 2003-02-28 | United States District Court for the Northern District of Alabama | Chazen v. Deloitte & Touche, LLP | Chazen v. Deloitte & Touche, LLP, 247 F. Supp. 2d 1259 (2003) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_12 | It must be said that there appears to be a very real controversy as to whether Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 n. 13, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), extends American Pipe to situations in which a class member opts out and files separate suit. While this question is an interesting one, and one which this court has apparently never squarely faced, we decline to pass on the question at this time. | ’”) (citations omitted); cf. Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1389 (11th Cir.1998) {American Pipe doctrine tolls the statute of limitations for class members until class certification is denied, not until appeals are finished, to further the goals of efficiency and economy); but see Realmonte v. Reeves, 169 F.3d 1280, 1283-84 (10th Cir.1999) (holding that American Pipe doctrine does not require denial of certification, and that plaintiffs who opted out of class were allowed benefits of tolling); Tosti v. City of Los Angeles, 754 F.2d 1485, 1488 (9th Cir.1985) (same). See Wood v. Combustion Eng’g, Inc., 643 F.2d 339, 346-47 (5th Cir. April 1981) (“It must be said that there appears to be a very real controversy as to whether Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 n. 13, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), extends American Pipe to situations in which a class member opts out and files separate suit. |
2,171,312 | 11,772,881 | 2004-03-29 | United States District Court for the Northern District of Oklahoma | Anderson v. Boeing Co. | Anderson v. Boeing Co., 222 F.R.D. 521 (2004) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_2 | the claims or defenses of the representative parties are typical of the claims or defenses of the class. | 327 F.3d at 955. The Court finds that in this ease the plaintiffs and circumstances are not comparable to those in Falcon because plaintiffs have experienced the types of discrimination allegedly experienced by the proposed class.
Based upon the evidence and authorities discussed above, the Court finds that plaintiffs have established commonality for the salary subclass based upon common questions of fact regarding
1. Whether Boeing failed to correct gender disparities in salary despite knowledge of their existence; and
2. Whether Boeing allows subjective decision-making with the knowledge that it perpetuates intentional discrimination and/or disparately impacts women.
The Court also finds that plaintiffs have established commonality, for the overtime subclass based upon common questions of fact regarding
1. Whether Boeing’s practices and policies allow managers to use subjective criteria in making decisions concerning overtime assignments; and
2. Whether there are statistically significant gender disparities in overtime assignments.
Lastly, the Court finds that a common issue of law exists for both subclasses as to whether the intentional discrimination and/or disparate impact plaintiffs allege violated Title VII. Typicality
Rule 23(a)(3) requires that “ |
12,419,282 | 11,772,881 | 2017-08-31 | United States District Court for the District of Colorado | Kurlander v. Kroenke Arena Co. | Kurlander v. Kroenke Arena Co., 276 F. Supp. 3d 1077 (2017) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_2 | the class, is so numerous that joinder of all members is impracticable | Decoteau v. Raemisch, 304 F.R.D. 683, 690 (D. Colo. 2014). I find that Plaintiffs proposed class definition adequately defines the class and that individual inquiries of each.of the class members are not required. The Requirements of Rule 23(a)
A class may be certified only if all four of the following prerequisites are met:
(1) Numerosity: “ |
12,419,282 | 11,772,881 | 2017-08-31 | United States District Court for the District of Colorado | Kurlander v. Kroenke Arena Co. | Kurlander v. Kroenke Arena Co., 276 F. Supp. 3d 1077 (2017) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_2 | there are questions of law or fact that are common to the class | The Requirements of Rule 23(a)
A class may be certified only if all four of the following prerequisites are met:
(1) Numerosity: “the class, is so numerous that joinder of all members is impracticable”;
(2) Commonality: “ |
12,419,282 | 11,772,881 | 2017-08-31 | United States District Court for the District of Colorado | Kurlander v. Kroenke Arena Co. | Kurlander v. Kroenke Arena Co., 276 F. Supp. 3d 1077 (2017) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_2 | the representative parties will fairly and adequately represent the interests of the class. | Adequacy of representation: “ |
12,419,282 | 11,772,881 | 2017-08-31 | United States District Court for the District of Colorado | Kurlander v. Kroenke Arena Co. | Kurlander v. Kroenke Arena Co., 276 F. Supp. 3d 1077 (2017) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_1 | is satisfied when the legal question linking the class members is substantially related to the resolution of the litigation. | The commonality requirement “ |
12,419,282 | 11,772,881 | 2017-08-31 | United States District Court for the District of Colorado | Kurlander v. Kroenke Arena Co. | Kurlander v. Kroenke Arena Co., 276 F. Supp. 3d 1077 (2017) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_2 | the claims of the representative plaiñtiff[ ] are typical of the class. | Dubin v. Miller, 132 F.R.D. 269, 274 (D.Colo. 1990) (citing 1 H. Newberg, Newberg on Class Actions § 3.22, at 199 (2d ed. 1985)).
Here, I find that there is a common question whether Defendant is required to provide open captioning at Display Events to those who are deaf and hard of hearing and require open captioning of aural content. This is a question of fact and law which the Court believes is common to the members of the class. Where a single question of ADA compliance is common to the class, Rule 23(a)(2). is satisfied. See Abercrombie, 765 F.3d at 1216. Where the representative plaintiff and members of the class have similar disabilities and challenge the legality of barriers under the same statute, “ |
12,419,282 | 11,772,881 | 2017-08-31 | United States District Court for the District of Colorado | Kurlander v. Kroenke Arena Co. | Kurlander v. Kroenke Arena Co., 276 F. Supp. 3d 1077 (2017) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_11 | fairly and adequately protect the interests of the class. | Thus, I find that the putative class satisfies Rule 23(a)(2) and (3).
3. Rule 23(a)(4) requires that the representative parties “ |
4,197,485 | 11,772,881 | 2013-03-07 | United States Court of Appeals for the Tenth Circuit | Cook v. Baca | Cook v. Baca, 512 F. App'x 810 (2013) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_10 | When an exchange of shares facilitates the merger of two separate and distinct corporate entities, that exchange constitutes a ‘purchase or sale’ for purposes of bringing a Rule 10b-5 action. | See, e.g., Realmonte v. Reeves, 169 F.3d 1280, 1285 (10th Cir.1999) (“ |
3,797,292 | 11,772,881 | 2012-03-19 | United States District Court for the District of Connecticut | Poptech, L.P. v. Stewardship Investment Advisors, LLC | Poptech, L.P. v. Stewardship Investment Advisors, LLC, 849 F. Supp. 2d 249 (2012) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_7 | has been interpreted to include exchanges of one security for another. | Poptech maintains that its conversion is equivalent to a purchase, citing other circuit case law for the proposition that the Exchange Act’s definition of “sale” “ |
3,797,292 | 11,772,881 | 2012-03-19 | United States District Court for the District of Connecticut | Poptech, L.P. v. Stewardship Investment Advisors, LLC | Poptech, L.P. v. Stewardship Investment Advisors, LLC, 849 F. Supp. 2d 249 (2012) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_10 | When an exchange of shares facilitates the merger of two separate and distinct corporate entities, that exchange constitutes a ‘purchase or sale’ for purposes of bringing a Rule 10b-5 action. | Realmonte v. Reeves, 169 F.3d 1280, 1285 (10th Cir.1999); see also 7517 Corp. v. Parker & Parsley Dev. Partners, L.P., 38 F.3d 211, 225-29 (5th Cir. 1994). However, both of Poptech’s cited cases are potentially distinguishable, as neither one involves the voluntary exchange of one form of securities within an entity for another form.
The Realmonte district court observed that the relevant stock was acquired via a stock-for-stock transfer, was not traded on the open market, and was not subject to certain restrictions in determining that the exchange was not a purchase or sale for § 10(b) purposes. This analysis could be equally applied to the Poptech exchange. See Realmonte, 169 F.3d at 1285 (“ |
4,219,736 | 11,772,881 | 2010-02-22 | United States Court of Appeals for the Tenth Circuit | Bixler v. Foster | Bixler v. Foster, 596 F.3d 751 (2010) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_4 | in connection with the purchase or sale | There, the court rejected the plaintiffs argument that the allegedly fraudulent securities transactions in question were “intended to be a swap agreement,” rather than a sale of securities, because the transactions relied on the sale of stock to effect their purpose. Id. Similarly, the Third Circuit has held that the PSLRA amendment precluded a RICO claim based on a Ponzi scheme that was accomplished by the purchase and sale of securities.
In particular, section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5, are directed at fraud “ |
4,219,736 | 11,772,881 | 2010-02-22 | United States Court of Appeals for the Tenth Circuit | Bixler v. Foster | Bixler v. Foster, 596 F.3d 751 (2010) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_10 | When an exchange of shares facilitates the merger of two separate and distinct corporate entities, that exchange constitutes a ‘purchase or sale’ for purposes of bringing a Rule 10b-5 action. | ”); accord Realmonte v. Reeves, 169 F.3d 1280, 1285 (10th Cir.1999) (“ |
3,392,102 | 11,772,881 | 2009-02-12 | United States District Court for the District of Kansas | Garcia v. Tyson Foods, Inc. | Garcia v. Tyson Foods, Inc., 255 F.R.D. 678 (2009) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_2 | there is at least one question of law or fact common to the class. | ” Rex v. Owens, 585 F.2d 432, 436 (10th Cir.1978). Plaintiffs’ evidence establishes that Tyson employs approximately 4500 hourly production workers at its Holcomb and Emporia facilities and that the vast majority of these employees were paid on a “gang time” basis and Tyson does not dispute that plaintiffs’ proposed class meets the numerosity requirement.
Rule 23(a)(2) requires the court to find that “ |
12,266,123 | 11,772,881 | 2017-11-16 | United States Court of Appeals for the Seventh Circuit | Collins v. Village of Palatine | Collins v. Village of Palatine, 875 F.3d 839 (2017) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_8 | The fact that this participation ended with a decision to 'opt out’ rather than with denial of class certification is irrelevant to the applicability of the American Pipe rule. | ”); Adams Pub. Sch. Dist. v. Asbestos Corp., 7 F.3d 717, 718 n.1 (8th Cir. 1993) (" |
3,769,354 | 11,772,881 | 2006-12-08 | United States District Court for the Southern District of Texas | Newby v. Enron Corp. | Newby v. Enron Corp., 465 F. Supp. 2d 687 (2006) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_9 | within one year after the discovery of the facts constituting the violation and within three years after such violation. | Smith v. EMC Corp., 393 F.3d at 595, quoting Whitaker v. City of Houston, 963 F.2d 831, 836 (5th Cir.1992), in turn quoting Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir.1981). If there is substantial delay, the plaintiff bears the burden of demonstrating that it was due to oversight, inadvertence or excusable neglect, Id., citing Gregory, 634 F.2d at 203.
Where the proposed new claims are time-barred, allowing amendment is futile. Williams v. Simmons, 185 F.Supp.2d 665, 674 (N.D.Tex.2001); Columbraria Ltd. v. Pimienta, 110 F.Supp.2d 542, 549 (S.D.Tex.2000). Inquiry Notice and the Statute of Limitations in Federal Securities Acts
Until the effective date, July 30, 2002, of the Sarbanes-Oxley Act (“Sar-banes-Oxley”), 28 U.S.C. § 1658(b), a claim grounded in the federal securities acts had to be filed “ |
3,769,354 | 11,772,881 | 2006-12-08 | United States District Court for the Southern District of Texas | Newby v. Enron Corp. | Newby v. Enron Corp., 465 F. Supp. 2d 687 (2006) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_9 | (1) 2 years after the discovery of the facts constituting the violation; or (2) 5 years after such violation. | Section 804 of Sarbanes-Oxley extended the length of limitations for “a private right of action that involves a claim of fraud, deceit, manipulation or contrivance in contravention of a regulatory requirement concerning the securities laws,” such as claims under § 10(b) and Rule 10b-5, to the shorter of “ |
3,769,354 | 11,772,881 | 2006-12-08 | United States District Court for the Southern District of Texas | Newby v. Enron Corp. | Newby v. Enron Corp., 465 F. Supp. 2d 687 (2006) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_8 | [W]e hold that the fact that the Realmontes' participation in the class action terminated with the decision to opt out of a certified class rather than with the denial of class certification is irrelevant to the applicability of the American Pipe tolling rule. |
9
.Cincinnati and OTTA misrepresent their authority here. This Court observes that in Reeves, a class was certified for the purpose of approving a settlement agreement before the Realmontes elected to opt out. 169 F.3d at 1283. As for the cases cited for the proposition that denial of certification should not be a prerequisite for American Pipe tolling, those appellate courts held that the tolling rule ap plied for plaintiffs who opted out and filed individual suits after certification was granted. Id. at 1284. Thus the Reeves court held, " |
1,083,024 | 11,772,881 | 2002-08-02 | United States District Court for the District of Wyoming | Skinner v. Uphoff | Skinner v. Uphoff, 209 F.R.D. 484 (2002) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_2 | the claims or defenses of the representative parties [be] typical of the claims or defenses of the class. | ” Nicodemus v. Union Pacific Corporation, 204 F.R.D. 479 489 (D.Wyo.2001) (citing Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir.1994)). Plaintiffs suit involves two overall claims: 1) Plaintiff seeks individual damages for the violation of his own Eighth Amendment rights, and 2) Plaintiff seeks broad injunctive relief challenging the policies, practices, and customs of Defendants Uphoff and Everett that violate the Eighth Amendment rights of the class of all current and future WSP inmates. With respect to the injunctive portion of the case, Plaintiff alleges that virtually every issue of fact and law is common to the class as a whole. For example, the issues of fact concern whether the Defendants have turned a blind eye to inmate-on-inmate assaults by failing to train and supervise correctional staff in prevention of inmate-on-inmate violence and by failing to investigate each inmate assault to determine whether staff malfeasance precipitated it and to then discipline malfeasant staff. Defendants do not address the issue of their policies and customs in this respect.
Under the liberal commonality standard as stated above, the Court finds that the Plaintiff has demonstrated that this case revolves around a common nucleus of operative facts, namely the policies and customs of the prison regarding inmate-on-inmate violence. Therefore, Plaintiff has satisfied the Rule 23(a)(2) commonality requirement. Typicality
Typicality under Rule 23(a)(3) requires that “ |
238,593 | 11,772,881 | 2000-03-31 | United States District Court for the Northern District of Oklahoma | Hallaba v. Worldcom Network Services Inc. | Hallaba v. Worldcom Network Services Inc., 196 F.R.D. 630 (2000) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_2 | must demonstrate that there is at least one question of law or fact common to the class. | ”).
A
As an initial matter, Defendants do not contest the numerosity requirement of Rule 23(a)(1). Moreover, the Court finds that the proposed class potentially contains thousands of parties, rendering it sufficiently numerous to satisfy the first element of Rule 23(a).
B
Defendants focus their primary objections on the commonality requirement of Rule 23(a)(2). Rather, he “ |
238,593 | 11,772,881 | 2000-03-31 | United States District Court for the Northern District of Oklahoma | Hallaba v. Worldcom Network Services Inc. | Hallaba v. Worldcom Network Services Inc., 196 F.R.D. 630 (2000) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_2 | the claims or defenses of the representative parties [be] typical of the claims or defenses of the class. | Neither deed contains the words “right of way." However, the deeds could conceivably convey different interests. Under Mis-
6
. Because the Court finds that Plaintiff has failed to satisfy the requirements of Rule 23(b), it need not rule on whether Plaintiff has met the remaining requirements of Rule 23(a), typicality and adequacy of representation.
Rule 23(a)(3) requires that " |
9,080,141 | 11,772,881 | 2003-09-30 | United States District Court for the Northern District of Illinois | Brewton v. City of Harvey | Brewton v. City of Harvey, 285 F. Supp. 2d 1121 (2003) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_3 | [Tjhere are a number of cases in which the tolling rule of American Pipe has been applied when a class action has been certified. | ” Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353-54, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983) (quoting American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974)). The Court noted that such a rule protects the policies behind the class action procedure — efficiency and economy of litigation — because the opposite rule would encourage each class member to file his own individual suit to preserve his claims should the class action fail to proceed. Id. at 349, 103 S.Ct. 2392 (citing American Pipe, 414 U.S. at 553, 94 S.Ct. 756). Further, the Court noted that this rule would not injure the policies behind statutes of limitations — putting defendants on notice of adverse claims and preventing plaintiffs from sleeping on their rights — because such ends are met when a class action is filed. Id. at 352-53, 103 S.Ct. 2392 (citing American Pipe, 414 U.S. at 555, 561, 94 S.Ct. 756).
Crown, Cork & Seal and American Pipe both involved plaintiffs who had been putative members of a proposed class, certification of which was ultimately denied. Realmonte v. Reeves, 169 F.3d 1280, 1284 (10th Cir.1999) (“ |
9,080,141 | 11,772,881 | 2003-09-30 | United States District Court for the Northern District of Illinois | Brewton v. City of Harvey | Brewton v. City of Harvey, 285 F. Supp. 2d 1121 (2003) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_0 | Although the facts in both Crown, Cork & Seal and American Pipe involved decertification of the underlying class action, whereas in this case certification was granted, the Supreme Court has made clear that such a distinction is not controlling. | ”); Tosti v. City of Los Angeles, 754 F.2d 1485, 1488 (9th Cir.1985) (“ |
4,248,620 | 11,772,881 | 2009-07-15 | United States District Court for the District of Kansas | Jamieson v. Vatterott Educational Centers, Inc. | Jamieson v. Vatterott Educational Centers, Inc., 259 F.R.D. 520 (2009) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_11 | will fairly and adequately protect the interests of the class. | Harlow v. Sprint Nextel Corp., 254 F.R.D. 418, 425 (D.Kan.2008) (citing Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.1988)). This element requires that the representative plaintiffs possess the same interests and suffer the same injuries as the proposed class members. See Thompson v. Jiffy Lube Intern., Inc., 250 F.R.D. 607, 622 (D.Kan.2008) (typicality requirement is meant to ensure that the named representative’s claims have the same essential characteristics as the claims of the class at large). In this instance, the class members asserting breach of contract for failure to provide promised instruction are relying upon the same contractual language, the same legal theory, and at least to some extent the same remedial theory. There are factual differences between many of the class members, but as noted above, the relatively low threshold of Rule 23(a)(3) does not preclude a finding of typicality based solely on that fact. The court finds the plaintiffs have satisfied the typicality requirement on this claim. As for the claim for misrepresentation of the amount of hands-on training in Electrical-Mechanic courses, the subclass members asserting this claim rely upon an alleged practice by the school in making such misrepresentation; their claim could be considered typical on that basis. Likewise, the plaintiffs’ claims that Vatterott violated the KCPA by charging grossly excessive tuition would be typical of the claims of class members in that regard.
D. Rule 23(a)(4) requires a showing that the representative parties “ |
4,283,021 | 11,772,881 | 2012-05-14 | United States District Court for the Western District of Oklahoma | Foster v. Merit Energy Co. | Foster v. Merit Energy Co., 282 F.R.D. 541 (2012) | 1999-03-03 | United States Court of Appeals for the Tenth Circuit | Realmonte v. Reeves | Realmonte v. Reeves, 169 F.3d 1280 (1999) | 11772881_2 | representative parties will fairly and adequately protect the interests of the class. | Dukes, 131 S.Ct. at 2551.
Tucker v. BP America Production Co., 278 F.R.D. 646, 654 (W.D.Okla.2011). See also, to the same effect, Morrison v. Anadarko Petroleum Corp., 280 F.R.D. 621 (W.D.Okla. 2012) (Miles-LaGrange, J.).
3. Typicality
Rule 23(a)(3) requires the claims of the named plaintiff to be typical of the claims of the class he seeks to represent. DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1198 (10th Cir.2010). The interests and claims of the named plaintiff and class members need not be identical to satisfy the requirement of typicality. Id. Provided the claims of the named plaintiff and class members are based on the same legal or remedial theory, differing fact situations of class members do not defeat typicality. Id. (citing Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.1988)). In that broad sense, Lois Foster’s claims are typical of the claims of the class she proposed to represent. That typicality (e.g., the fact that her legal theories are the same ones she would advance on behalf of the proposed class), gauged by that lenient standard, does nothing to remedy the other deficiencies in her arguments for class certification. Adequacy of representation
Rule 23(a)(4) requires that “ |
9,473,274 | 11,764,828 | 2001-09-14 | United States District Court for the Eastern District of California | People ex rel. Ervin v. District Director | People ex rel. Ervin v. District Director, 170 F. Supp. 2d 1040 (2001) | 1999-03-04 | United States Court of Appeals for the Ninth Circuit | Sokolow v. United States | Sokolow v. United States, 169 F.3d 663 (1999) | 11764828_2 | [A]n injunction may be obtained against the collection of any tax if (1) it is ‘clear that under no circumstances could the government ultimately prevail’ and (2) ‘equity jurisdiction’ otherwise exists, i.e., the taxpayer shows that he would otherwise suffer irreparable injury. |
However, as noted and as will be discussed infra, petitioner alleges that the named respondents have violated his constitutional rights under the Fourth and Fifth Amendments. Such a claim may be brought against respondents in their individual capacities and the United States is not a proper respondent with respect to such claims. See Gilbert v. DaGrossa, 756 F.2d 1455, 1459 (9th Cir.1985). Nonetheless, as will be discussed infra, no cause of action exists against individual officials of the Internal Revenue Service for violation of constitutional rights arising out of federal tax collection efforts. Consequently, although the United States is not the proper defendant with respect to such a claim, the claim itself cannot proceed.
B. Anti-Injunction Act and Declaratory Judgment Act.
1. Anti-Injunction Act.
The United States moves to dismiss the Petition to the extent that the Petition prays to enjoin IRS collection activities.
26 U.S.C. § 7421(a) provides in pertinent part:
Except as provided in sections 6015(e), 6212(a) and (c), 6213(a), 6225(b), 6246(b), 6330(e)(1), 6331®, 6672(c), 6694(c), 7426(a) and (b)(1), 7429(b), and 7436, no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not the person is the person against whom such tax was assessed.
It does not appear that any of the exceptions listed in Section 7421(a) have any application to this Petition.
An action that does not fall within one of the statutory exceptions to the Anti-Injunction Act must be dismissed for lack of subject matter jurisdiction. Sokolow v. United States, 169 F.3d 663, 665 (9th Cir.1999). Thus, ordinarily, once a tax has been assessed, the taxpayer’s only recourse is to pay the tax in full and then sue for a refund. Id. “ |
9,473,274 | 11,764,828 | 2001-09-14 | United States District Court for the Eastern District of California | People ex rel. Ervin v. District Director | People ex rel. Ervin v. District Director, 170 F. Supp. 2d 1040 (2001) | 1999-03-04 | United States Court of Appeals for the Ninth Circuit | Sokolow v. United States | Sokolow v. United States, 169 F.3d 663 (1999) | 11764828_0 | must show that he has no adequate remedy at law and that denial of injunctive relief would cause him immediate, irreparable injury. | Commissioner v. Shapiro, 424 U.S. 614, 627, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976) (quoting Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962)). The burden is on the taxpayer to establish both prongs of the test and, unless both prongs of the test are met, a suit for injunctive relief must be dismissed. Alexander v. “Americans United” Inc., 416 U.S. 752, 758, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974). As explained in Erickson v. Luke, 878 F.Supp. 1364, 1372 (D.Idaho 1995): The taxpayer bears the burden of showing that the Government’s claim is baseless....
To meet the second prong of the test, the taxpayer “ |
5,721,903 | 11,764,828 | 2006-12-12 | United States Court of Appeals for the Ninth Circuit | Fountain v. Pruett | Fountain v. Pruett, 210 F. App'x 719 (2006) | 1999-03-04 | United States Court of Appeals for the Ninth Circuit | Sokolow v. United States | Sokolow v. United States, 169 F.3d 663 (1999) | 11764828_1 | no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person | MEMORANDUM
James Gregg Fountain appeals pro se from the district court’s judgment dismissing for lack of subject matter jurisdiction his action seeking to require the IRS and its employees to remove a tax lien and return taxes collected by levy on his wages. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Steel v. United States, 813 F.2d 1545, 1548 (9th Cir.1987) (dismissal based on sovereign immunity); Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004) (dismissal of Bivens action). We affirm.
The district court properly dismissed Fountain’s claims against the IRS based on sovereign immunity. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (a suit against IRS employees is essentially a suit against the United States). See 26 U.S.C. § 7421(a) (“ |
3,999,624 | 11,764,828 | 2012-09-26 | United States Court of Appeals for the Ninth Circuit | Carey v. United States | Carey v. United States, 481 F. App'x 422 (2012) | 1999-03-04 | United States Court of Appeals for the Ninth Circuit | Sokolow v. United States | Sokolow v. United States, 169 F.3d 663 (1999) | 11764828_1 | no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person | MEMORANDUM
Michael and Leone Carey appeal pro se from the Bankruptcy Appellate Panel’s or der affirming the bankruptcy court’s order dismissing the Careys’ adversary proceeding for lack of subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo a dismissal for lack of subject matter jurisdiction. Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir.2003). We affirm. See 26 U.S.C. § 7421(a) (unless permitted by statute, “ |
3,999,624 | 11,764,828 | 2012-09-26 | United States Court of Appeals for the Ninth Circuit | Carey v. United States | Carey v. United States, 481 F. App'x 422 (2012) | 1999-03-04 | United States Court of Appeals for the Ninth Circuit | Sokolow v. United States | Sokolow v. United States, 169 F.3d 663 (1999) | 11764828_3 | must be dismissed for lack of subject matter jurisdiction | See 26 U.S.C. § 7421(a) (unless permitted by statute, “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person”); Sokolow v. United States, 169 F.3d 663, 665 (9th Cir.1999) (an action that does not fall within one of the limited exceptions to the Anti Injunction Act “ |
2,595,683 | 11,764,828 | 2006-09-15 | United States Court of Appeals for the Ninth Circuit | Major v. United States Internal Revenue Service | Major v. United States Internal Revenue Service, 201 F. App'x 564 (2006) | 1999-03-04 | United States Court of Appeals for the Ninth Circuit | Sokolow v. United States | Sokolow v. United States, 169 F.3d 663 (1999) | 11764828_1 | no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person | MEMORANDUM
Michael J. Major appeals pro se from the district court’s judgment dismissing his action for injunctive relief and damages against the Internal Revenue Service and its employees for actions associated with the collection of federal taxes. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Steel v. United States, 813 F.2d 1545, 1548 (9th Cir.1987) (dismissal based on sovereign immunity); Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004) (dismissal of Bivens action); Wagh v. Metris Direct, Inc., 348 F.3d 1102, 1106 (9th Cir.2003) (dismissal for failure to state a claim). We affirm.
The district court properly dismissed Major’s damages claims against the IRS based on sovereign immunity. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985) (a suit against IRS employees is essentially a suit against the United States). See 26 U.S.C. § 7421(a) (“ |
4,161,662 | 11,764,828 | 2012-09-26 | United States Court of Appeals for the Ninth Circuit | Carey v. United States (In re Carey) | Carey v. United States (In re Carey), 481 F. App'x 422 (2012) | 1999-03-04 | United States Court of Appeals for the Ninth Circuit | Sokolow v. United States | Sokolow v. United States, 169 F.3d 663 (1999) | 11764828_1 | no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person | MEMORANDUM
Michael and Leone Carey appeal pro se from the Bankruptcy Appellate Panel’s or der affirming the bankruptcy court’s order dismissing the Careys’ adversary proceeding for lack of subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo a dismissal for lack of subject matter jurisdiction. Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir.2003). We affirm. See 26 U.S.C. § 7421(a) (unless permitted by statute, “ |
4,161,662 | 11,764,828 | 2012-09-26 | United States Court of Appeals for the Ninth Circuit | Carey v. United States (In re Carey) | Carey v. United States (In re Carey), 481 F. App'x 422 (2012) | 1999-03-04 | United States Court of Appeals for the Ninth Circuit | Sokolow v. United States | Sokolow v. United States, 169 F.3d 663 (1999) | 11764828_3 | must be dismissed for lack of subject matter jurisdiction | See 26 U.S.C. § 7421(a) (unless permitted by statute, “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person”); Sokolow v. United States, 169 F.3d 663, 665 (9th Cir.1999) (an action that does not fall within one of the limited exceptions to the Anti Injunction Act “ |
9,308,504 | 11,764,828 | 2002-09-30 | United States District Court for the Middle District of Pennsylvania | Bell v. Rossotti | Bell v. Rossotti, 227 F. Supp. 2d 315 (2002) | 1999-03-04 | United States Court of Appeals for the Ninth Circuit | Sokolow v. United States | Sokolow v. United States, 169 F.3d 663 (1999) | 11764828_1 | no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person. | ” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir.1997) (internal citation omitted). Therefore, when analyzing Defendants’ Motion to Dismiss, this Court construes all facts alleged in the complaint as true, and draws all reasonable inferences in the plaintiffs favor. Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478 (3d Cir.1998). This Court will only grant Defendants’ Motion to Dismiss if there is clearly no remedy available for the Plaintiffs claim, or if Plaintiff has no right or power to assert the claim. Melo-Sonics Corp. v. Cropp, 342 F.2d 856, 859 (3d Cir.1965).
B. Injunction
On the face of his complaint, Plaintiff seeks to enjoin the IRS investigation of whether his websites violate United States law. Plaintiff also seeks an injunction
prohibiting Defendant Commissioner and all of his agents (defined as those executing the orders of Defendant Commissioner or operating in any form of cooperation or collusion) from physically approaching Plaintiff, His Family, and the Offices of NITE, at a distance of less than 300 feet, without prior approval from Plaintiff or non ex parte order of this Court.
The Tax Anti-injunction Act, however, states, with certain exceptions not applicable here, “ |
9,308,504 | 11,764,828 | 2002-09-30 | United States District Court for the Middle District of Pennsylvania | Bell v. Rossotti | Bell v. Rossotti, 227 F. Supp. 2d 315 (2002) | 1999-03-04 | United States Court of Appeals for the Ninth Circuit | Sokolow v. United States | Sokolow v. United States, 169 F.3d 663 (1999) | 11764828_2 | ‘equity jurisdiction’ otherwise exists, i.e., the taxpayer shows that he would otherwise suffer irreparable injury. | ” 26 U.S.C. § 7421(a). Information gathering that may lead to the assessment or collection of taxes falls within this tax anti-injunction provision. Linn v. Chivatero, 714 F.2d 1278, 1281-82 (5th Cir.1983). Since the IRS investigation into Plaintiffs websites may ultimately lead to the assessment and collection of taxes from individuals, using Plaintiffs methods, the investigation falls under this anti-injunction provision. This Court is prohibited from entering any injunction against the IRS and its agents for allegedly.harassing activities when those activities fall within the scope of a valid investigation. Black v. United States, 534 F.2d 524, 526-27 (2d Cir.1976); Graham v. United States, 528 F.Supp. 933 (E.D.Pa.1981). A court may enter an injunction against the collection of any tax already assessed if (1) it is clear that 'under no circumstances could the government ultimately prevail and (2) the taxpayer shows that “ |
9,456,027 | 11,757,909 | 2001-12-07 | United States Bankruptcy Court for the Eastern District of Michigan | Hutchison v. Birmingham (In re Hutchison) | Hutchison v. Birmingham (In re Hutchison), 270 B.R. 429 (2001) | 1999-02-22 | United States Bankruptcy Appellate Panel for the Ninth Circuit | Leibowitz v. County of Orange (In re Leibowitz) | Leibowitz v. County of Orange (In re Leibowitz), 230 B.R. 392 (1999) | 11757909_0 | A debt ... owed under State law to a State .... that is in the nature of support and that is enforceable under this part is not released by a discharge in bankruptcy .... | The clear negative inference arising from § 362(b)(2)(A), then, is that a debt evidenced by a postpetition support order may be nondischargeable pursuant to § 528(a)(5).
Other statutory provisions point to the same conclusion. Cf. 42 U.S.C. § 656(b) (“A debt... owed under State law to a State.... that is in the nature of support and that is enforceable under this part is not released by a discharge in bankruptcy.... ”). |
9,456,027 | 11,757,909 | 2001-12-07 | United States Bankruptcy Court for the Eastern District of Michigan | Hutchison v. Birmingham (In re Hutchison) | Hutchison v. Birmingham (In re Hutchison), 270 B.R. 429 (2001) | 1999-02-22 | United States Bankruptcy Appellate Panel for the Ninth Circuit | Leibowitz v. County of Orange (In re Leibowitz) | Leibowitz v. County of Orange (In re Leibowitz), 230 B.R. 392 (1999) | 11757909_2 | The fact that the debt now takes the form of reimbursement to the County does not alter the original purpose of the public assistance which was paid out by the County. That purpose was the support of the debtor’s minor children. Thus, the underlying debt is ‘in the nature of support.’ | See also In re Coker, 232 B.R. 182, 186 (C.D.Cal.1998) (Section “523(a)(18)... provides for nondischargeability for debts arising from a state’s efforts to obtain reimbursement for welfare payments made to for [sic] either child or spousal support....”); In re Pitts, 262 B.R. 482, 498 (Bankr.W.D.Mo.2001) (“[T]he Court agrees with the reasoning of the Ninth Circuit Court of Appeals in Leibowitz.... ”); In re Leibowitz, 218 B.R. 96, 98 (Bankr.C.D.Cal.1998), aff'd, 230 B.R. 392 (9th Cir.BAP 1999), aff'd, 217 F.3d 799 (9th Cir. 2000) (“The fact that the debt now takes the form of reimbursement to the County does not alter the original purpose of the public assistance which was paid out by the County. |